Link: http://blog.legalaction.ca/amendments-to-ontario%e2%80%99s-impaired-driving-laws/#more-99

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Industry News Elena Mindel

As of July 2, Ontario’s controversial amendments to its impaired driving laws went into effect. These amendments give more power to police officers administering road and bodily fluid tests, as well as circumventing some legal loopholes that charged drivers often use to beat convictions.

From the National Post:

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.

The ‘evidence to the contrary’ arguments are used by defense lawyers to contest seemingly objective findings of blood tests, breathalyzers, etc. A frequently used example is the ‘last drink’ defense where lawyers argue that the accused was over the .08 limit because they ‘chugged’ their last drink, giving it less time to absorb in their body before hitting the road.

Other arguments could also state that drivers were stopped for improper purpose, a violation for their Charter rights.

Advocates against impaired driving have widely criticized defense lawyers of using these arguments inappropriately and in many cases judges have accepted them. It now looks as if these critics are seeing the changes they want.

With the new amendments, an ‘evidence to the contrary’ argument can only go so far as to cite malfunctions in the police breathalyzer tests and must provide clear evidence that the driver was not over the limit.

The new legislation has not come without controversy, as many legal experts have challenged the changes.

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.

Whether the protocols can successfully ensure reliable testing is still up in the air. It is likely that these amendments will face constitutional challenges in the courts and may create greater backlog in Ontario’s justice system. At this point, it looks like defense lawyers will have to make more assured arguments if they want to ward off convictions in the future.