B.C. driver becomes first to legally challenge Canada’s new impaired driving laws

Published: April 30, 2019

Updated: May 1, 2019

Author: Luke Jones

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A British Columbia motorist from Victoria is issuing a constitutional challenge to Canada’s new impaired driving laws. In a first of its kind case, 76-year-old Norma McLeod is applying to the Supreme Court in the province for a review of an immediate roadside prohibition (IRP) she faced recently.

McLeod is a cancer survivor who had half of the roof of her mouth removed in 2005. She now wears a prosthesis in her mouth. Since her battle with cancer, McLeod has also been diagnosed with chronic obtrusive lung disease and chronic bronchitis.

In February, the Thrifty Foods’ Sendial program volunteer had her license taken for 90 days and her vehicle for 30 days on the spot. On Valentine’s Day this year, a police officer pulled over McLeod as she left the liquor store at Hillside Centre with a bag. During the roadside stop, the officer demanded a breath sample.

McLeod was unable to deliver a good sample because of the prosthesis in her mouth and lung conditions. There was no other evidence of alcohol in her system, but an IRP was issued. She is now facing a bill of thousands of dollars. McLeod says she had nothing to drink that morning.

“Attention needs to be brought to this case,” said McLeod’s lawyer, Jennifer Teryn.

“The facts could not be more perfect to demonstrate who this law is harming and how these people are being harmed by it. Without the new provision of the Criminal Code, this would never have happened. Six months ago, this would not have happened.”

Canada’s tougher impaired driving laws have been in effect since last December. Under the legislation, police have the right to demand a breathalyzer test from any driver they pull over. Previously, a breath sample was only required if police had reasonable suspicious the driver was drink or high.

Drivers who refuse a test or are unable to do so can face criminal charges similar to if they were convicted of impaired driving.

“Under the new law, police can detain you with no grounds. While you are unlawfully detained, your right to call a lawyer is denied. Asking you to provide a breath sample is a warrantless search, which violates your right to be free from an unreasonable search,” Teryn said.

“What’s shocking and terrible about Miss McLeod’s case is the police officer is going out of his way to paint a picture of [her] that is not even accurate. He alleged that she looked like an alcoholic,” added Teryn.

In his report to the Office of the Superintendent of Motor Vehicles, the police officer who stopped McLeod described her has having a “large red nose, bloodshot eyes and ruddy cheeks.”

“The second time, I was running out of air and (the officer) kept saying: ‘Go, Go, Go.’ I had nothing left,” said McLeod.

She informed him she had a prosthetic following cancer treatment, but he said, ‘You’re talking and breathing OK, so you can do it.’ My thought was: ‘Who wants to fail this test?’ It wasn’t me.”

“I asked: ‘What happens if I fail this one? He said: ‘Your car is impounded for 30 days and you lose your licence for 90.’ I thought: ‘No, I didn’t want that.’ So I did the best I could for the last three attempts. I just couldn’t do it anymore.”