Canada’s drunk driving laws allow those who kill people on the road to get away with it, says a legal expert on the subject.
It’s common for people like Jamie McBride, who killed a woman on the Alaska Highway in 2008 after driving on the wrong side of the road, to get off nearly scott-free, said Robert Solomon, a legal policy adviser with Mothers Against Drunk Driving, or MADD.
“It’s not surprising,” said Solomon, who would not speak directly to the McBride case.
“Our record in impaired driving is one of the worst of any comparable developed democracy.”
McBride left a Whitehorse bar one night in July 2008 and ended up killing a woman named Diane Roby.
When McBride was being removed from the vehicle, he told police he fell asleep.
Witnesses had followed him as he drove on the wrong side of the highway, and police did not administer a breathalyzer test.
Two weeks ago, a Yukon court found McBride not guilty of drunk driving or dangerous driving causing death partly because police didn’t get proof he was drunk.
The court was only able to convict him of driving recklessly – an offence that carried a $1,000 fine and 30 days’ probation.
It’s a story told over and over again in Canadian courtrooms, said Solomon.
He blames the laws surrounding evidence-gathering – such as obtaining a breath sample or getting blood at a hospital.
“Our federal impairment law just isn’t working,” he said. “Impaired driving deaths in this country are rising – they have been rising slightly since the year 2000.
Most Canadians are apathetic about the problem, in part because we don’t realize how bad the situation is, he said.
Alcohol is involved in more road deaths in Canada than eight comparable developed countries, a 2001 Transport Canada study found.
In 2000, an oft-quoted survey placed Canada second-worst for traffic fatalities involving alcohol among 15 countries.
We’re at the bottom of the pack, and that’s because Canadians aren’t scared of getting nailed for the crime, said Solomon.
In Canada, only 11 per cent of people who drive drunk are convicted.
In parts of Australia, where laws are much more strict, it’s 98 per cent, he said.
Solomon’s work is to compare the outcome of different legal regimes and judge which ones are more effective.
There are two reforms that have proven the best at decreasing drunk-driving fatalities, he said.
The first is lowering the legal drinking limit from 0.08 per cent blood alcohol content to 0.05 per cent.
“The messaging of our current law is not that it’s illegal to drink and drive, but that it’s illegal to drive when you’re really drunk out of your skull,” he said. “That message is a dangerous one.”
“The research is overwhelming that lowering to 0.05 per cent will reduce death on roads,” he said.
Some provinces have already lowered their road laws to 0.05, but that’s only brought in licence suspensions and heavy fines because it’s not in the Criminal Code of Canada.
The holy grail of drunk driving law reformers is introducing random breathalyzer tests.
In an interview last week, RCMP spokesperson Sgt. Don Rogers explained how constitutional protections make it extremely difficult for cops to get breath samples.
The difficulty is finding “reasonable and probable grounds” that a person is drunk, said Rogers.
Even boozy breath can’t be considered grounds for a breathalyzer test because it doesn’t mean you’re drunk, he said.
But Solomon points to several reasons why random breathalyzer tests, which have been proven to lower drunk driving deaths, should be considered constitutional.
“Right now the police have the right to stop the vehicle at random,” he said. “They have the right to demand ownership, licence and insurance at random. They can demand that you identify yourself at random. They don’t need any particular suspicion.
“That has been upheld by the Supreme Court of Canada. Why? Because driving is a licensed, regulated activity occurring on public roads.
“Is the state interest in determining whether you have your ownership document with you greater than the state interest in knowing you’re drunk?
“My response is no.”
Drunk driving is the number one criminal killer in Canada, he said.
Cops can’t use a breathalyzer at random because of section nine of the Charter of Rights and Freedoms.
But in those other cases, section nine has been trumped by section one, which guarantees our rights and freedoms but only subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” said Solomon.
Canadians are screened at airports, border crossings and government buildings.
“Don’t tell me random search and seizure is not a common occurrence that is acceptable in Canada, because it is,” said Solomon.
A constitutional analysis of the random breathalyzer proposal has been done and then vetted by constitutional lawyer Peter Hogg, the former dean of Osgoode Hall Law School.
“He gave us a written response that it’s constitutional,” said Solomon.
Still, there’s little momentum behind introducing random breathalyzer tests.
“The alcohol industry is very powerful, very political, and they’re very effective at getting their message out,” said Solomon.
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