Unless you have been living under a rock you have likely heard that as of December 18, 2018 the law changed dramatically as it relates Criminal Code drinking and driving offences.
On that date the “old” drinking and driving offences were repealed and replaced with “new” drinking and driving offences. But what does that actually mean? How are the new provisions different from the old ones? What has actually changed?
First of all, and what has clearly been the subject of much discussion in the media as of late, is that new police powers have been created.
Background- Appellate authorities and Counsel of Choice
Appellate authorities establish that an accused in custody has the right to speak to a lawyer that he or she chooses and the police are obliged to make reasonable efforts to assist him or her to contact counsel of choice. What efforts are reasonable is highly fact specific and Ontario appellate cases suggest that often times good-faith perfunctory efforts by police are viewed as adequate to fulfill their constitutional obligations.
The police do not have to “hold off” indefinitely for a detainee to speak to whatever lawyer the detainee wishes. The availability of duty counsel is, since Prosper, an important circumstance courts must consider in weighing what efforts police should make in the middle of the night where there is some need for dispatch to take breath samples and for how long they must “hold off” in taking breath samples.
A distillation of the appellate authorities can be found at: R. v. Willier, especially paras 33-4; R. v. Kumarasamy, and R. v. Blackett, especially at paras. 20-25.