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New Quebec impaired punishment does not fit crime | Kyla Lee

Wednesday, December 11, 2019 @ 9:29 AM | By Kyla Lee

Kyla Lee %>
Kyla Lee
The Quebec government has recently enacted legislation that would require repeat impaired driving offenders to install ignition interlock devices in their vehicles, for life.

And while many, including lobby groups like MADD, are praising this as an important measure to curb impaired driving, the reality is that this law will not make a difference, except to those who are most marginalized.

The cost of installing an interlock device can run in excess of $1,000. In addition to the required installation fees, the Quebec government also charges program fees, restricted licence fees and there are monthly monitoring fee requirements. It makes the cost of driving prohibitive for many low-income individuals.

And this highlights an unfortunate reality of our justice system. In cases involving impaired driving offences, those who have access to money also have access to better quality defences.

Impaired driving offences are expensive to litigate. The cases often involve numerous Charter issues, and legal argument on these issues can run for several days. With new laws that came into effect last winter, many impaired driving cases now also come with additional elements of constitutional challenges. In addition, there are scientific issues related to the maintenance, functioning and operation of breath test instruments. This may require expert evidence, again, at an additional cost.

These days, it is not uncommon for a typical impaired driving trial to span multiple court days. Appeals are common. Those with financial means can afford this, often delaying the event of a conviction or staving one off entirely.

But the harsh reality is that those who do not have the financial means to fund these challenges may merely pay for counsel to negotiate a guilty plea that does not involve jail for a subsequent offence. Some simply take the minimum penalty. And those who qualify for legal aid must still seek approval for constitutional challenges or expert witnesses, making these resources less available overall.

Which means that those who have less will face greater consequences.

The lifetime ignition interlock requirement also overdoes the punishment. To be glib, the punishment does not fit the crime.

Drivers who have received a pardon for their impaired driving offences are still nevertheless required to keep the interlock in their vehicle. This means that those who have a second impaired driving offence will have lifelong consequences, notwithstanding the existence of a pardon system that is otherwise meant to set the slate clean.

For these people, they can never move on from their impaired driving convictions. The stigma of the conviction will follow them long beyond the time that a criminal record might. And in that circumstance, the existence of the conviction that was pardoned is necessarily disclosed by virtue of the licence restriction.

Every police officer who requests a driver’s licence, every employer seeking a driving record, every volunteer organization looking for an abstract — all these organizations will be able to determine that the individual has had two prior impaired driving convictions, regardless of the pardon. This requirement, therefore, essentially defeats the purpose of a pardon for impaired driving offenders.

And while it is true that impaired driving poses a huge public safety risk, this measure overcompensates by a lot.

Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! She is called to the bar in Yukon and British Columbia.

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