Stricter Impaired Driving Laws

  Neuberger Rose LLP - Impairs Over 80s LORNE HONICKMAN: Getting much more difficult out there for defense lawyers to try and defend their clients on impaired and over 80 charges. And one of those defense lawyers, who I'm sure will have a lot to say about it, David Rose, welcome back to Legal Briefs. DAVID ROSE: Thank you, Lorne. Good day. LORNE HONICKMAN: Well it is look--I mean maybe my perception, but it looks like things are getting tighter and tighter with respect to impaired and over 80s and the defenses that have been raised through the years. DAVID ROSE: They are. They are. There's a court case, Gibson, which came out last Friday from the Supreme Court of Canada which talks about these so-called straddling defenses where someone's blood alcohol content could be possibly below 80 but also perhaps above 80. LORNE HONICKMAN: Let's say a range between 70 and 95. DAVID ROSE: That's right. They--we call this the straddling defense. In Ontario, because of our court of appeal, that hadn't been a defense. In other words, if you want to raise evidence to the contrary on an over 80 case, you had to show that your blood alcohol content was definitely below 80. LORNE HONICKMAN: Right. DAVID ROSE: And there wasnt even a possibility it was above 80. But other provinces didnt follow that rule. LORNE HONICKMAN: So this, the Supreme Court decision now sort of solidifies this across the country. DAVID ROSE: Nationwide. That's right. LORNE HONICKMAN: And then come July 2nd, a few more loopholes are going to get tightened. DAVID ROSE: That's right. On July 2nd what we call Bill C2 will be enforced. Actually it's a law right now but it's not going to be implemented as they say. It's going to be enforced on July the 2nd. LORNE HONICKMAN: Right. DAVID ROSE: And that means that evidence to the contrary, these what people call the two, two beer defense will be even further tightened up, so. LORNE HONICKMAN: Right. And it's going to be more difficult. I mean you're almost going to now, if I understand it, reading it, you're going to really have to show some sort of evidence that that breathalyzer machine wasnt working properly. DAVID ROSE: That's right. There's three parts to it now. You have to show that the breathalyzer machine wasnt working and that the machine contributed to an erroneous reading that would have been under 80 and that your blood alcohol content, the third thing, was under 80 at the time. LORNE HONICKMAN: And how in the world are you going to do that? DAVID ROSE: Well-- LORNE HONICKMAN: I mean let, let's assume that the breathalyzer machine- DAVID ROSE: It's not going to be easy. LORNE HONICKMAN: It's going to make it more--now-- DAVID ROSE: Definitely tightening it up. LORNE HONICKMAN: So, and that's of course what we're going to want to hear from people tonight. And I have a funny feeling, maybe it's just a gut feeling that there's not going to be a lot of sympathy to people who are charged with impaired and over 80s given the fact that the perception or that the reality will be that it's going to be much more difficult to defend these charges. But there's a problem with that isn't there? DAVID ROSE: There is. People have always thought of these over 80 charges being a technical defense. And, and I dont think that's true. Actually what we're talking about is a defense which speaks to, as I say, the merits of it. In other words, were you--was your blood alcohol content actually under 80. LORNE HONICKMAN: Right. DAVID ROSE: It's not technical defense to say that paperwork wasnt filled out properly or you didnt get a particular document, you didnt get the original and so forth. What we're talking about is was your blood alcohol content actually under 80. LORNE HONICKMAN: Right. But let's, let's talk about what happens in the real world.