Canadian Lawyer - sample

w w w . C A N A D I A N L a w y e r m a g . c o m N O V E M B E R / D E C E M B E R 2 0 1 7 43 ber. "What would actually make streets and highways safer are additional resourc- es for police forces," the report's authors noted. "Random breath testing (RBT) is likely to lead to more Charter litigation, absorbing significant system resources without substantial results." Kyla Lee, who practises with Acu- men Law Corporation in Vancouver, is a dedicated impaired-driving defence counsel who was an expert witness before the House of Commons in Sep- tember on Bill C-46. She expresses concern with the mandatory alcohol screening provision of the proposed legislation for its potential targeting of minorities. The legislation doesn't say that mandatory alcohol screening can be conducted only at roadblocks but for "any reason at any lawful traffic stop," says Lee. "It's going to have a signifi- cant impact on visible minorities," she adds. "In B.C., we see over-policing of First Nations and Asian communi- ties." Police still have "subjectivity" in determining where the road checks are set up, and "we see the over-policing in areas for people of colour," she says, also citing instances of "carding" of aborigi- nal men in the West and black men in Toronto in particular. But according to Robert Solomon, professor of law at the University of Western Ontario and the legal policy director for Mothers Against Drunk Driving, "exactly the opposite is true. "Now, police decide who to pull over," Solomon says. With mandatory alcohol screening, "every driver passing by the mandatory screening checkpoint is waved in, unless there's a backlog. Every driver stopped is given a sam- ple; there's no subjective judgment. If anything, mandatory alcohol screening actually reduces the likelihood of sub- jective enforcement of the law." In the many jurisdictions around the world that have instituted manda- tory alcohol testing, he says, "impaired driving deaths and injuries fell dra- matically." For example, data from 2013 showed that Canadians consumed 33 per cent less alcohol per capita than Germans, yet Canada's per-capita rate of alcohol-related crash deaths was almost five times higher than theirs, which Solomon attributes to the differ- ent regulatory regime. But whether the random roadside breath demands will pass Constitutional muster remains to be seen. Stephen Smith of the Gunn Law Group in Edmonton — who is currently representing one of two appellants before the Supreme Court of Canada in cases involving demands for maintenance records of approved instru- ments — believes that mandatory alcohol screening "represents a significant Consti- tutional change in the Canadian approach and almost certain to be found a s. 8 breach and maybe s. 1 of the Charter," he says. Another proposed change under Bill C-46 would affect the so-called bolus drinking defence, when an accused has drunk a large amount of alcohol after driving, then produces readings on an approved instrument in excess of the limit but consistent with readings below the legal limit at the time of driving. The proposed changes will now make Tim Boland Darcy Romaine Tel: 905-841-5717 www.bolandhowe.com THE PROOF IS IN THE PRECEDENTS Thornhill v Shadid, 2008 ONSC 3404 Silveira v. Regional Municipality of York, 2014 ONSC 65 Roycroft v Kyte, 1999 OJNO 296 (Sup Ct.) For further liability verdicts, ask for our Trial Report Card MUNICIPAL LIABILITY? Consider referring your client to us ntitled-1 1 2017-11-06 9:46 AM

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