Ontario man challenges impaired driving charge, argues new law is unconstitutional

Four days after Canada's new impaired driving law came into effect, a Lambton County man was charged with impaired driving — but now he's challenging that charge in court.

His legal representative, Nick Cake with Millars Law, said the ability for police to stop drivers without any suspicion of wrongdoing and demand a breath sample is "illegitimate."

"The individual was stopped, not because of any bad driving or because of any reports of possible impaired driving," said Cake. "The individual was stopped because of a peeling license plate."

His client was eventually charged with operating a vehicle with over 80 milligrams of alcohol in 100 millilitres of blood after giving a breath sample.

Cake said it may be one of the first charges laid under the new law.

The new law came into effect on Dec. 18, 2018. Police are able to demand a breathalyzer test from any driver pulled over for violating traffic laws or at a check stop.

'Akin to carding'

While in this particular case, the new impaired law was able to take an impaired driver off the road, Cake doesn't think the law is constitutional and said it's a slippery slope.

He said the new law is "akin to carding," or giving officers the right to search a gun owner's home to ensure the weapons are stored appropriately.

Cake said there should be more work done to remove impaired drivers off the road, but with the necessary "checks and balances."

According to Cake, the previous law was just and working fine. But now, drivers are "being compelled under threat of criminal prosecution" to give breath samples even if police have no reason to believe there is wrongdoing.

"We had a system in place that at least required that the officers have a suspicion that something might be happening," he said.

"It was the lowest threshold provided at law."

Cake will be arguing that the new impaired driving law violated his client's right to be secure against unreasonable search or seizure, which is Section 8 in the Canadian Charter of Rights and Freedoms.

He said the notice has been given with regards to the challenge, but no official filings have been made yet.

Cake expects the case may ultimately end up in the Supreme Court of Canada.