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Many of the Twitter trolls that harass me every time I succeed in anImmediate Roadside Prohibition or impaired driving case appear to believe that innocent people do not receive DUI charges. This could not be farther from the truth. I have personally seen how a person can provide a falsely elevated result just from a few drops of alcohol consumed in recent proximity to the test.

This phenomenon is known as residual mouth alcohol. And it can affect the reliability of an approved screening device (or, roadside breathalyser) test. But it can also affect the reliability of a breathalyser at the police station, even where the instrument has a mechanism designed to eliminate it.

The video above shows how mouth alcohol falsely skews the results. I do not want to spend much time on the process, but more on what I have seen and where mouth alcohol can come from in affecting a breath test.

There’s been a lot of perceived dismay ever since the Supreme Court of Canada released its Jordan decision last year. This case concerned whether the time it took between the charge laid against an alleged drug dealer and his trial was so lengthy that it was an unreasonable delay.

The Supreme Court ruled in favour of the accused. And from that decision, identified a new presumptive ceiling for what would constitute an unreasonable delay – 18 months for provincial cases, and 30 months for superior court cases. Since then, about 200 cases have been thrown out of court. The media are crying foul, pointing at the apparent injustice that alleged murderers, sexual deviants, drug dealers and child predators are being freed without being tried.

The Minister of Justice for Canada is currently conducting a survey about mandatory minimum sentences. On its face, this appears to be a small effort to obtain input about whether mandatory minimums are effective means of addressing criminal offences, and how to best allow judges to achieve the goals of sentencing.

However, the survey raises broader concerns about the efficacy of this proposed method. The options to choose from for appropriate sentences are limited, and the mechanisms proposed clearly show that Jody Wilson-Raybould has already made up her mind about how sentencing reform is to be achieved in this country.

The survey is, in my view, an effort to garner support for a process she has already decided to implement under the guise of engaging in public consultation.

I have concerns about what is apparent the Government wants to do. And I will outline them in this post.

A few months ago, I wrote about the awful amendment to the Motor Vehicle Act that allow the Superintendent to prepare their own material, under the guise of “technical materials” to determine cases. This material, pursuant to the legislation, is only to be used for the purpose of determining issues raised by the applicant.

The problem with the Superintendent being able to do this was that the Superintendent is then presumed to be an expert on issues which he is, frankly, not. At the time, I predicted that the Superintendent would simply rewrite science in order to advance the goal of upholding IRPs. And, unfortunately, I was right.

Today, I received word on an IRP hearing that the Superintendent would be relying on Technical Materials, including a new version of the ASD manual that was posted on their site today. I dropped everything to read this new version of the manual, and I saw something I expected to see.

Back in 1975, the Supreme Court of Canada made a groundbreaking decision on drunk driving. The decision was about the admissibility of breathalyzer test results presented in court. In this decision, the Court held that breathalyzer results, even absent evidence the breath sample was lawfully obtained, could still be used in court to convict a driver for being over the blood alcohol limit, with this caveat: as long as the driver did in fact provide a breath sample, and a certificate of analysis was admitted into evidence.

In plain English, what the court was saying is that if you provided a breath sample, even if the demand for the breath sample was unlawful, the results of that breath test could be used against you in court.

Since then, courts across the country have gone back and forth about whether that decision remains good law or whether it’s absolutely bonkers that unlawfully obtained evidence is somehow still admissible in court.

The Provincial Government clearly had good intentions when it made changes to the Motor Vehicle Act in 2010 to prohibit the use of personal electronic devices while operating a motor vehicle.

Barely 20 months after the legislation was introduced, Government had already tallied more than 46,000 tickets issued for distracted driving. Despite criticism from drivers, cell phone use while driving soon became a priority for law enforcement and legislators alike. It wasn’t entirely surprising. After all, distracted driving is a serious offence and can be a factor in crashes causing severe injury and death.
ICBC reports that approximately 78 people are killed each year in crashes “where driver inattention or distraction is a factor.” And as Government struggled to figure out how to get drivers to leave their phones alone, police conducted more and more enforcement blitzes with increasing vigilance.

Penalties have also doubled since the legislation was introduced. Initially, drivers caught using an electronic device were subject to a $167 ticket and three penalty points. Changes made in June last year increased the fine to $368 and added an additional penalty point.

This means a driver given a distracted driving ticket will now end up paying $543 in total for a first offence, when factoring in the increased premium for the extra penalty point.

It’s troubling when the Government has to issue a public statement defending a law before the bill is event tabled for debate. When the proposed legislation is so flagrantly and blatantly unconstitutional, the Government is clearly scrambling to justify its existence before it is even passed. And so that brings us to the big drunk driving law news of the week: Jodi Wilson’s Charter Statement on Bill C-46. My summary opinion is this: it’s a stinking pile of nonsense.

Or, as one lawyer interviewed put it, “if a first year student wrote this, they would fail.”