Loopholes tightened in impaired-driving law
By Shannon Kari
The National Post
July 2, 2008

Changes to the Criminal Code aimed at toughening impaired-driving laws take effect today, but while most of the attention has focused on measures to crack down on driving while under the influence of drugs, it is the amendments to the alcohol-related laws that are likely to have the greatest impact on the criminal justice system.

Advocates of the changes say they are a first step toward catching up to the impaired-driving laws in almost every other Western country.

The amendments will make it easier for police to obtain blood samples after serious automobile accidents in which alcohol is believed to be a factor and reduce the opportunities for defendants to use "evidence to the contrary" arguments to try to avoid a conviction.

"The legislation will make it more difficult for those who drink, drive and kill to escape liability," said Robert Solomon, a law professor at the University of Western Ontario in London.

Mr. Solomon, who is also director of legal policy for MADD Canada, said other countries with stricter impaired-driving laws are surprised by the provisions in this country.

More than 1,200 people across the country died as a result of impaired-driving incidents in 2005, according to the latest statistics available.

That was nearly double the 663 people who were murdered that year. Even when defendants are convicted of serious offences such as impaired driving causing death, it is unlikely that a prison sentence of more than four or five years will be imposed.

"It is the No. 1 criminal cause of death in this country, yet we have this attitude that boys will be boys. Why do we make excuses for drunk drivers?" asked Mr. Solomon, who suggested there have been too many "technical loopholes" available for defence lawyers to use.

In one high-profile example, Margaret Trudeau admitted during a public speech last week that she should not have been acquitted of impaired driving. The Ontario Court of Appeal concluded this spring that she was stopped for an improper purpose and her Charter rights were violated. "I shouldn't have got off, I was over the limit," the former wife of Pierre Trudeau said during the speech.

In another decision last week, a judge in Barrie, Ont., acquitted a senior Toronto police detective who was allegedly driving an unmarked police car 145 kilometres per hour at 4 a. m. and had a Breathalyzer reading of more than twice the legal limit. The judge accepted the evidence of the officer and his colleagues that he had five beers to drink and the Breathalyzer must have been inaccurate.

The "evidence to the contrary" defence can be presented under the new legislation only if it is shown there was a malfunction with the Breathalyzer, along with clear evidence the driver was not over the legal limit.

This restriction was questioned by the Canadian Bar Association in a presentation to Parliament last summer. "It would be particularly difficult for an accused to raise a reasonable doubt based on instrument malfunction, given that the instrument is in the custody of the authorities," said the legal organization. It called for a "mandatory protocol" to ensure the reliability of testing devices.

The evidence to the contrary defences have been used "completely inappropriately," yet they have often been accepted by judges to defeat "objective" results from Breathalyzers, Mr. Solomon said.

One of these legal arguments, known as the "bolus drinking" or "last-drink defence" suggests the blood alcohol reading is incorrect if someone "chugged" a drink a few minutes before driving, because it could not yet be absorbed into the body. "The last-drink defence does not exist in any other country," noted Mr. Solomon.

While he is pleased with the amendments, the law professor said there will be only minimal reductions in the number of impaired-driving incidents unless the blood alcohol limit for a criminal charge is reduced from .08 to .05. "We'll get there eventually," he predicted.

Impaired-driving trials already make up more than 30% of the cases in criminal courts in Canada. Critics of the new laws say they will be subject to constitutional challenges and are likely to further clog up the courts.