In December of 2018, parliament declared Bill C-46 law. This completely changed our impaired driving laws. And one of the controversial change is the new offence, is blowing 80 or over milligrams of alcohol in 100 millitres of blood, within 2 hours of driving. The old law was that you had to be over 80 at the time of driving.

What has this caused and what will it do? Well now, in theory, it allows the police officer to show up at your home, say an hour and half after you have finished driving, say someone said they saw you driving an hour and a half ago, and you were weaving on the roadway. You go home, you have some drinks, and the police could show up, and now demand a roadside sample. That’s what the law essential says. This is going to lead to constitutional challenges, there’s no doubt, there’s no doubt about that, and I predict that type of situation is problem going to happen. Can the police, even going to a bar an hour after you have been drinking, and demand a roadside sample. This is going to play out in court and perhaps wind up in Supreme Court of Canada many years from now, and ultimately, that court will probably decide it’s constitutional, or whether the law should be struck down. Again, there’s a lot of commentators, you know, online talking about this right now.

What was this design to do this new law? It was designed to really limit one defence, and get rid of another defence. The defences got rid of is called the Bolus drinking defence or the “last drink” defence, where, so you haven’t been drinking, you have two or three beers, or some shots, just before you get into a car, you’re stopped by the police, 5 minutes later, you give a roadside breath sample, which is going to blow way over the limit because you’ve got mouth alcohol. That beer was not in your blood stream; it’s just sitting in your stomach. That was a very effective defence, the person’s home 10 minutes away. That defence is gone now. You can’t run the last drink defence because again, you are going to back to the station after you blow over due to the mouth alcohol at the scene, and then blow over again, over at the station, potentially, if you are over 80. So that defence is gone.

The other offence, it’s limited is the “after the fact drinking”, that is where you, had a beer, got in a car, got in a car accident, and for example, drank at the scene or went home and drank and your blood alcohol was not over 80 at the time of the accident. That’s been very limited. Now someone, who wants to run that defence, say the police show up at your home, and you blow way over. Now you would have to show, that you had “after the fact”, drinks, and there’s an onus on you now. It reverses the onus that show that you didn’t anticipate, that you were going to have to provide a breath sample. So in other words, you got in a car accident, you went home you’re nervous, and you drank, you didn’t anticipate you were going to provide a breath sample. That’s going to difficult to show. So that defence has been limited and these were the reasons for bringing it in and their admirable reasons in a sense, in a sense that, hopefully it reduces the carnage on the road, but, the dichotomy, and the tension here, whether this breaches people’s rights, and again, that’s going to play out in the court system in the next many years, and it’s going to cost a lot of money to both defend this, and the courts to prosecute it, before it eventually reaches the Supreme Court of Canada level.

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