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The New Impaired Driving Legislation - a Big Mistake?
G. Shawn Swarts
G. Shawn Swarts
G. Shawn Swarts
Shawn graduated with a law degree from University of Western Ontario. Shawn articled in Ottawa, specializing in criminal defence work. Since his call to the bar in 1991, he continues to practice in this area.

In January 2008, the Harper Government passed legislation entitled Tackling Violent Crime, often known as Bill C-2. Inside Bill C-2 were some significant changes to the impaired driving laws in Canada. These changes included an increase in the mandatory minimum fines on a first offence up to $1,000 from $600; an increase penalty for second offences from fourteen days to thirty days; an increase penalty for third offences from a ninety day minimum sentence to six months.

Bill C-2 also fundamentally changed the requirements on the defence in these cases. In the past, if the defence raised a reasonable doubt as to how much the accused had drank and that he was under eighty milligrams at the time of driving, he was entitled to an acquittal, even if he had blown over at the Station. This defence was called "evidence to the contrary". Bill C-2 changed that - now the defence must not only prove the accused was under eighty at the time of driving, the accused must also prove how the machine malfunctioned and that the malfunction resulted in a reading over eighty by the machine. This new law puts an onus on the accused to establish not only his innocence in respect to the Over 80 charge, it also requires the accused to somehow come up with scientific evidence as to where the machine went wrong.

The downside from the defence perspective is that it is virtually impossible to get that type of evidence. The police obviously will not release the machine to the defence, for their own independent testing and the defence of course does not have an expert at the scene when the officer was doing the testing.

The reason these changes were put into this legislation according to the Federal Minister of Justice, was to get more convictions on impaired driving cases. However, the constitution of our nation requires laws to be fair and I strongly suspect that this particular aspect of the law will be struck down when examined by the Court.

The reality is we are now entering a time when virtually no impaired driving cases are going to be heard, as we wait for the law to straighten itself out, which could take years. Ironically, in an effort by the conservative government to get tough on impaired driving cases, they may have ended up delaying resolutions to those very cases for years.

Shawn Swarts is a partner at the law firm of Cobb & Jones, who practices primarily criminal litigation. Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice.

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