LETHBRIDGE: New drunk driving law tricky, but I will err on side of safety - TheChronicleHerald.ca

If you’re contemplating another drink before driving home this New Year’s Eve, think again, because things are going to be different this year.

Legislation known as Bill C-46 gives police the new power to demand a breathalyzer without reasonable suspicion. Before, police needed a reason to demand a test: erratic driving, slurred speech or the smell of alcohol in the car. Now, drivers are legally required to take the test, if asked. Even if they are sober, they could face criminal charges if they refuse.

I applaud any law that protects public safety, and mandatory roadside testing is one important tool to achieve that end. Innocent people die and suffer terrible injuries, families are destroyed and communities suffer great losses due to the plague of impaired driving.

Ask a first responder or an emergency room doctor about the carnage: road crash sites are like war zones.

Drinking and driving is a big social problem that hasn’t gone away, even with public education.

Organizations such as Mothers Against Drunk Driving are celebrating the law, saying it could reduce impaired driving by as much as 20 per cent and save some 200 lives every year. They base these estimations on data showing a reduction in crashes and road deaths in countries such as New Zealand, Australia and many European nations that have adopted similar rules for motorists.

The law also addresses the legalization of cannabis, placing limitations on driving while under the influence of psychoactive ingredients such as THC.

So the simple solution is: Don’t drink or consume cannabis if you’re planning to drive.

But the law itself isn’t so simple. Depending on who you are, where you are from and the colour of your skin, mandatory roadside screening could have consequences that were not intended by the legislation.

It will open a Pandora’s Box of legal challenges and complaints.

Criminal defence lawyers say the law violates rights guaranteed under the Canadian Charter of Rights and Freedoms, which states that “everyone has the right to be secure against unreasonable search or seizure.”

Demanding a breath test without reasonable suspicion violates this provision and is therefore unconstitutional, some lawyers argue.

Make no mistake: this is going to jam up the courts, which are already clogged with litigation over drinking and driving challenges. Even the federal justice department has recognized that the new legislation is going to burden the entire criminal justice system.

Defence lawyers also point out that the new rules could be enforced disproportionately against members of the black, Indigenous and other marginalized communities who already face racial profiling, a problem that this new law will exacerbate.

Another group worried about the new law is immigrants. Impairment will now be classified as “serious criminality,” meaning that foreign students, workers and visitors with first-time impairment convictions could lose their status to live, work and attend school in Canada and could even face deportation.

This creates a system of uneven penalties.

The law will address the perception that cannabis does not impair driving, with defined limits and penalties.

The government argues that limitations placed on THC are based on evidence, but there is uncertainty around the relationship between the amount of drugs in the blood system and the levels of impairment.

The other problem with drugs is whether mandatory saliva tests used to test for THC are accurate and will be able to stand up to court challenges.

This law will be a work in progress, as challenges make their way through the judicial system, and the right balance is found between the rights of Canadians and safety. I’m still leaning towards the safety side of the equation. This law will deter impaired driving and it will save lives. That, to my mind, is worth the suspension of some rights.

I hope there will be police training on how to enforce these new powers, and that public education on the law will reinforce the perils of drinking and driving. Meanwhile, we can rely on the sausage-making of court challenges to carve off potential unfairnesses to marginalized groups.

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