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Canada’s New Drunk Driving Law Will Make You Thankful for the 4th Amendment

Under C-46, police in Canada can stop any driver, anywhere, for any reason and demand their sample. You can even be cited if you haven’t driven in two hours.

Imagine going out to dinner with your wife on a Saturday night. She orders a nice bottle of pinot noir. You pour yourself a splash, but just half a glass since you’re driving. Your wife, who had a long day, drinks the rest.After dinner, you drive home, park the car, and go inside. While watching Bird Box, you knock back a couple Scotches to catch up. The movie done, the two of you begin to retire upstairs when there’s a knock at the door. It’s the police. Someone reported seeing you driving erratically, they say, and they want you to take a breathalyzer. You decline to blow, but relent when officers threaten to arrest you. The machine says your blood alcohol concentration is 85 milligrams per 100 milliliters of blood, .085 percent. The night ends with you in handcuffs, arrested for drunk driving.Police can stop any driver, anywhere, for any reason and demand their sample.

This scenario sounds far-fetched, but it would be perfectly legal under Canada’s new drunk driving laws, which the federal government recently revised to reduce traffic fatalities.

Under the revised law, known as C-46, which went into effect in December, police can stop any driver, anywhere, for any reason and demand their sample. Furthermore, you could be cited even if you haven’t driven a car in two hours.

“The bill makes it an offence to have a BAC (blood alcohol concentration) or BDC (blood drug concentration) of 0.8 mg per 100 mg of blood within 2 hours after driving,” Joanna Baron, a criminal attorney and national director of the RunnyMede Society, said “In other words, you could drive at 6:00 pm with a BAC of zero, come home, have a drink at 6:30 pm, and be arrested in your home at 8:00 pm.”

Canadian authorities are defending C-46, pointing out that traffic fatalities are the leading cause of death and injury in Canada.

“I believe these reforms will result in fewer road deaths and fewer Canadian families devastated by the effects of an impaired driver,” said David Taylor, Baron said C-46 is “plainly unconstitutional.”

Civil libertarians are less impressed. Baron said C-46 erodes the presumption of innocence and is “plainly unconstitutional.”

“Drinking and driving is a scourge and leads to senseless deaths in Canada, as in the United States,” Baron said, “but the government’s legislative response is a shocking violation of basic civil liberties unfounded by evidence.”

Other Canadian attorneys expressed similar concerns.

“This is a radical departure from previous law, which insulated people against warrantless searches without probable cause,” said Toronto-based criminal defense attorney Michael Engel, shortly after the law passed.

Consider another scenario. You drive your family to a restaurant. Your wife offers to drive so you can have a few beers, which you do. Someone who saw you drive to the restaurant is concerned, since small children are with you. They call the police, who arrive and administer a breathalyzer.

According to the law, criminal experts say, police could cite you if you failed the sobriety test. It would be incumbent on you to prove in court that you never had a drop of alcohol prior to arriving at the restaurant.

“If [the police] come and find you at the restaurant they can take you out of the restaurant despite the fact you’ve been drinking at the restaurant, maybe you weren’t going to drive away,” Paul Doroshenko, a Vancouver criminal lawyer who specializes in drunk driving cases, told Global News. “It is profoundly stupid, so most people assume it can’t be. But that’s what the law is now, you will see it happen—I guarantee it.”

Taylor said the “two-hour rule” was passed to prevent “certain defenses in drunk driving cases,” which seems like another way of saying it’s easier for the state to win prosecutions when citizens don’t have basic civil liberties.

If you think the scenarios I describe are unlikely to happen, that police and prosecutors will naturally use this power responsibly, then you don’t understand enforcement mentality.  An elderly gentleman who recently was stopped by police and forced to submit to a breathalyzer. Why? Because he was leaving the beer store with “an excessive amount of bottles.”

History also suggests that minorities will be most affected by the expanded police powers.

“The experience in Canada of ‘carding’ (similar to the American “stop and frisk”), which disproportionately has affected visible minorities, suggests that this new police power is likely to be used in the same way and lead to increased random arrests of people of color,” Baron told me.

Other Canadian commentators agreed that police would be more likely to target minorities.

“It is 100 percent guaranteed,” wrote National Post columnist Chris Selley. “And everyone from the justice minister to the pro-C-46 Toronto Star editorial board will pretend to be shocked by it.”

Thankfully, the United States has the 4th Amendment, which guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

This prevents Americans from being stopped and interrogated by police officers if they’re seen, say, carrying too many beer bottles.

Still, before Americans get too excited, they should know that Taylor defended Canada’s two-hour rule by pointing out that 16 U.S. states have such laws, statutes that have been upheld by U.S. courts.

Driving while drunk is a bad idea and a serious crime. It should be prosecuted as such, but not by stripping citizens of civil rights and stacking the deck in the favor of the state. Those who are tempted to do so, and would justify themselves by citing their noble ends, would do well to remember the immortal words of Ben Franklin.

“They that can give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”

Life and politics is never perfect, but the unchecked control of government to create unfiltered enforcement is an epidemic that will threaten the freedom the United States was created upon.  The pure fact that one person, one group, one party, perceives a situation one way does not inevitably entitle them to an unfiltered response of control.  That is the beauty of the United States.  It is (or it was) the only country two perspectives could collide civilly to cultivate a positive response and not purely a governmental dictate upon those that disagreed.

DUI’s are illegal because they may harm other people and if you are guilty then you should be prosecuted, but they should not be a pretense for unchecked enforcement.  Let’s pray for individual freedom and individual responsibility, however if you do get arrested for a DUI then get someone that can examine the facts and help you, because even the enforcement has rules they must obey.  Call us at 843.357.9301, if you ever need us for a DUI or any other legal need.

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