Loopholes

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The newest cases? The Queen versus Mirecki in Manitoba, the Queen versus Stewart in Alberta, the Queen versus Wood in British Columbia.

Regularly, drivers are pulled over, asked to blow into an approved screening device (ASD) see if they’ve been drinking before driving. If they fail that test, they’re taken to a police detachment for a full breathalyzer, and if they fail that, they are regularly charged with impaired driving.

And, just as regulary, it seems, drivers who are charged make their way to court holding the Canadian Charter of Rights and Freedoms to claim their rights were violated by something as simple as failing the breathalyzer.

There are a countless number of Charter violations that come up in drunk driving trials virtually daily: did police officers have enough grounds to believe the drivers were impaired before asking them to take a breathalyzer test? Did the police get the accused to a breathalyzer fast enough, or unlawfully detain a driver because a test wasn’t immediately available? Did the police calibrate the ASD that drivers were asked to blow into before being taken to a police detachment for the full breathalyzer test? Were drivers given their full rights to counsel? Did their cases come to court fast enough or was their right to a fair trial affected by the delay? Was every single word in a demand to take blood for alcohol testing read to the driver involved?

The list goes on and on.

Police officers are grilled on their notes and on their memories, on their impressions and their record-keeping. And all for a charge that, if everything is done properly, is pretty open and shut.

Interestingly, in all of the cases listed in the first paragraph, the accused had breath alcohol levels high enough to be considered impaired. In two of the three, the driver’s Charter rights were found to have been violated.

Certainly, the Canadian Charter of Rights is not a technicality.

But there are circumstances now where convictions on whether a police officer took five minutes or three minutes to reach the detachment — taken the wrong road — being a violation of a driver’s rights. There are other cases where defence lawyers request every scrap of paperwork connected to an ASD, right back to the date of its arrival from the manufacturer, in an effort to show any historic incidence of problems or  failure in maintenance.

It’s understandable why drivers would use every means possible to avoid a conviction for drunk driving. The penalties are stiff — particularly losing your driver’s licence, which for many people means a significant change to their way of life, and sometimes, to their very means of employment.

But the whole process is remarkably straightforward: if you’re pulled over and suspected to have been drinking, you blow into a machine that measures your level of impairment. Fail the test, you’re charged.

Instead, it’s regular legal gymnastics and, sometimes, legal gymnastics of the most convoluted kind.

Common sense would suggest there has to be a better way.

Organizations: Charter, Rights

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  • Cashin Delaney
    March 04, 2014 - 23:26

    The two-tier system is evident in the way MY impaired charge was handed out. I was so borderline, that I was asked if I knew anyone at the station. I was in my early 20s, driving someone else’s car. I knew I shouldn't have been driving. I knew the owner of the car definitely should not be driving. We were all student poor (not that I'm now rich!). I was in care and control of the vehicle as I flicked the lights on (no daytime headlights) just as the police car went by. I blew yellow, went to Parade Street. The two RNC officers left my two ossified buddies with their 1987 Ford Taurus and the keys. I watched them drive away from the backseat of the cruiser heading in the opposite direction! I just went back to the station, told no lies, wouldn't even let on that I knew the guy who worked there with the same last name....yes, the who do you know routine, maybe it was just an ice breaker in the conversation....who knows. Also, I had no concept of the amount of legal gymnastics available to me. I was told by several lawyers after the fact that I would have walked that night, if I had called them. I missed my court date due to work, I had a lawyer lined up to appear, but I didn't get him MONEY, so I was a no show – I was out near Corner Brook working in a remote location. A warrant was issued for my arrest. To turn myself in, would cost me the money I was making to pay my inevitable fines. An RNC officer showed up at my mothers house. Of course she figured I raped the queen or something. RNC couldn't tell her what I done, but he did cave under her pressure, he was a compassionate guy, I always appreciated that Mom got to sleep that night. I got back after making the money to pay my fine, turned myself in, had a half-day in the little pre-court cell where they took my belt for fear I would hang myself. I then was tasked with self-representation. The judge was excellent - the prosecutor tried to have me put to the full extent, of course. My brother was present for all this. All it would have taken that day, maybe not...just for argument sake, to create another career criminal for NL, was a little less forbearance by the judge, to turn my stomach against the system. Fail the test, get charged - even borderline - was a fate I accepted. Today, I would fight it to the hilt to save my job, as a father. I was refused a job with Bell Aliant a couple of years ago - they ask about your past 10 years on their screening forms, this happened 12 years ago. That was it, no job (not that I am overly sad not to be involved in Fibre-Op). I can travel to Belfast and back, no problem. I'm afraid to try to enter the U.S. My fine, back then, for this, was over half of Ed Drover’s fine. Young, stupid is put to the full extent. Old and enraged is not. Are we creating a society of young jaded thugs, and old slippery sycophants? The two-tiers of Arseholery?

  • Colin Burke
    March 04, 2014 - 08:59

    A relevant question here is whether a motorist -- most walkers have more actual drive than most "drivers" -- has all the rights of a citizen while motoring or whether he may be subject to restrictive requirements because his operating a motor vehicle is a not a right but a licensed privilege; I wrote about that in my Brass Tacks column in The Western Star when the breathalyzer section first was made law. Further, if motoring is subject to licensing because it presents a danger to persons other than the motorist himself, the licenses ought to be issued only to professional taxi-drivers and bus operators; one ought not to need a license merely to do something for oneself -- and that includes getting married.