Embarrassing Twitter mistake by Justice Canada wrongly suggests it is illegal to drink “after” driving

The now deleted tweet from Justice Canada read:

It’s summer time and the living is easy! Whether you’re sitting on a patio of having a backyard #BBQ, remember it’s against the #law to have a blood alcohol concentration over prohibited levels within two hours of driving. Know the limits.Justice Canada, Twitter

This would suggest that under Bill C-46, which became law last December, police would be able to arrest anyone who had gotten home and drank within two hours of arriving.

Many political voices, particularly those of a conservative disposition, were quick to criticize Justice Canada on this point.

Justice Canada quickly deleted their tweet and posted a follow up as a disclaimer.

In the tweet they say police can not use mandatory alcohol screening to come into your house and demand a breath sample. They say that for mandatory alcohol screening to be used the car must be lawfully stopped; you, as the driver, must be in care and control of the vehicle; and the police officer must have the [breathalyser] at hand.

While the tweet has been amended, it sparked a good deal of debate between the more politically and legally minded on twitter and beyond over Canada’s ever-expanding legal system; and, more specifically, the amendments found in Bill C-46 which this tweet from Justice Canada momentarily brought into question.

Bill C-46 made multiple amendments and repeals to the Criminal Codesurrounding the issue of impaired driving, and greatly expanded police authority, including making it illegal to refuse a breathalyser, if police believe you may be impaired, though they do not need a specific reason to request a breathalyser, regardless of where or when.

An amendment to Section 253 of the Criminal Code is the amendment in Bill C-46 which this tweet referred to.

It reads as follows:

Subject to subsection (4), everyone commits an offence who has within two hours after ceasing to operate a motor vehicle or vessel… a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph; or a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.Statutes of Canada 2018, Department of Justice

Exceptions are if you had alcohol after operating a vehicle, but not before; however, that is ultimately up to police to decide. Furthermore, police no longer need reasonable cause to demand a breathalyser test.

Basically, if you’re above the legal limit up to two hours after you get out of your car, you can still be charged.

The problem that many pointed out, and this tweet seemed to suggest, is that if you got home from work and then drank a few beers, you could still be charged, even though you never drove impaired. Furthermore, it would be difficult to determine whether you drove or not, unless police had witnessed you driving home impaired. But in such a case, why weren’t you pulled over before arriving home?

The government says it introduced this rule to make it easier for police to catch those who drink and drive but then try to use either the intervening drink defence or the bolus defence,” reports Global News. “Those defences are when an individual argues they drank either right before or right after they drove and so were not technically above the legal limit while actually behind the wheel since alcohol takes time to metabolize.

“However, the law makes a limited exception for those who drink after driving with no reasonable expectation of needing to provide a breath sample, although it still makes it a crime to refuse to provide a sample — which police no longer need reasonable grounds to suspect a driver is impaired to demand.”

Despite the mistake in the tweet, the senior assistant deputy minister, and others, of the Department of Justice told Global News that they were hesitant to remove the tweet, despite its being wrong, because it would only draw more attention to the mistake—which it did.

“I understand it has been politicized by some but there are credible legal voices criticizing it,” she told Global News. “As it is in fact wrong it needs to come down and be corrected even though that will draw attention.”

“That was my main concern with removing and correcting so we don’t leave Canadians with the impression that it’s illegal to be intoxicated even if you did not drive while impaired.”