A Victoria woman is launching what’s likely to be the first constitutional challenge to changes in Canada’s impaired-driving laws.
Norma McLeod, a 76-year-old cancer survivor, has applied to the B.C. Supreme Court for a judicial review of an immediate roadside prohibition, also known as an IRP.
In February, the former care aid, who volunteers with Thrifty Foods’ Sendial program, lost her licence for 90 days and her car for 30 days, even though there was no evidence she had any alcohol in her system.
In 2005, McLeod had half of the roof of her mouth removed because of mouth cancer — she now has a prosthesis in her mouth. She has also been diagnosed with chronic bronchitis and chronic obstructive lung disease.
On Feb. 14, a police officer watched her come out of the liquor store at Hillside Centre at about 9:35 a.m. with a bag.
As McLeod drove off, the officer pulled her over and demanded a breath sample.
McLeod was unable to provide a proper sample because of the prosthesis and her inability to produce enough breath.
She now faces thousands of dollars in penalties, even though she says she’d 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.”
Changes to Canada’s impaired- driving laws that came into effect Dec. 18, 2018, have given police the power to demand a breath sample from any driver they stop.
In the past, police had to have a reasonable suspicion a driver had alcohol in their system before demanding a roadside breath test.
Under the revised legislation, a driver who refuses or, like McLeod, fails to provide a breath sample, faces a potential criminal charge with penalties similar to an impaired-driving conviction.
Teryn, who practises criminal and constitutional law and has conducted more than 300 reviews of immediate roadside prohibitions, has served the B.C. Office of the Superintendent of Motor Vehicles and the Ministry of the Attorney General with a petition for judicial review, which includes the constitutional challenge to the Criminal Code.
Teryn is arguing that the new impaired-driving law infringes a driver’s right to be secure against unreasonable search or seizure, under Section 8 in the Canadian Charter of Rights and Freedoms.
The law also infringes on a driver’s right to be free from arbitrary detention and a driver’s right to counsel, she argues.
“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.
She is also seeking an order setting aside the IRP, fines and the cost of impounding McLeod’s car, as well as the return of McLeod’s licence, pending the hearing of the petition.
“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,” said Teryn.
In his report to the Office of the Superintendent of Motor Vehicles, the officer wrote that McLeod had several characteristics of chronic alcoholism: “large red nose, bloodshot eyes and ruddy cheeks.”
The first time McLeod tried to blow into the device, she didn’t put her lips around it properly.
“The second time, I was running out of air and [the officer] kept saying: ‘Go, Go, Go.’ I had nothing left,” said McLeod.
On her fourth attempt, McLeod told him she had cancer and had a prosthetic on the roof of her mouth. She said the officer told her: ‘You’re talking and breathing OK, so you can do it.’ He said he didn’t think I was trying. My thought was: ‘Who wants to fail this test?’ It wasn’t me.”
McLeod said she was feeling light-headed and a bit dizzy. She was also starting to panic.
“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.”
McLeod said she’s always aware of her prosthetic because she can feel it, but she forgot to tell the officer about her chronic obstructive lung disease because she was so nervous.
The officer sent her home in a taxi. Upset, McLeod called her daughter, Sandy Smith, who called the Capital Regional District Integrated Road Safety Unit and talked to the officer. She told him that her mother couldn’t have been drinking because she was on her way home from her volunteer job at Thrifty Foods when he pulled her over.
In his report, the officer documented the phone call and suggested McLeod had lied to her daughter about where she was that morning.
“She appeared to be unaware that McLeod had come from a liquor store and not Thrifty Foods,” the officer wrote.
He found it “curious” that McLeod told her daughter that she had been at work when she told him she had been drinking the previous night at 10:30 p.m.
“The behaviour of lying about, or secret consumption of alcohol is consistent with chronic alcoholism,” he wrote.
McLeod had actually had a small glass of sherry before bed, said Teryn. And she had not lied to her daughter. Rather, Smith assumed her mother was volunteering because she’d missed her volunteer shift during the February snowstorm.
Smith took McLeod to see her doctor that afternoon.
“He said that looking at my chart, he didn’t think there was any way I could blow into that tube,” said McLeod.
Their next stop was the Driver Licensing Office on McKenzie Avenue in Saanich, where McLeod paid $100 to file an appeal.
“I was told it was easy, that I didn’t need a lawyer. I was given the understanding I would win,” said McLeod.
McLeod wrote a one-page letter addressing what she thought was important in the police report. She submitted her doctor’s letter, which states: “She has a history of chronic obstructive lung disease with a reduced capacity to exhale. This is further compounded by extensive oral surgery due to a malignancy with removal of her soft and hard palate. Despite a prosthesis, this would also negatively impact her ability to perform a breathalyzer test.”
In her letter, the 76-year-old defended the way she looks. McLeod said her doctor told her the rosy cheeks are from rosacea.
“The only time I have seen my eyes red is after a shower. The odd time if they are itchy and then I use [drops].”
The Road Safety B.C. adjudicator dismissed McLeod’s appeal. The adjudicator found that McLeod’s inability to provide a breath sample was due to her conduct and not her medical conditions, and her medical conditions are not a reasonable excuse for failing or refusing to provide a breath sample.
McLeod paid a $900 impoundment fee and a $500 fine. She has to take a one-day, eight-hour Responsible Drivers Program at a cost of $930. It will cost $250 to reinstate her licence.
The worst part of the ordeal was telling her children that she lost her car and her driver’s licence.
“It just hurt to tell my kids,” McLeod said, choking up. “It still hurts to think of it.”
For now, she takes the bus and does a lot of walking, “huffing and puffing.”
“I know people lie and try to get out of everything, but maybe give us a test,” she said. “I wasn’t drinking. So why can’t I drive?”
When B.C. Solicitor General Mike Farnworth was asked about McLeod’s case two weeks ago, he suggested advances in technology might provide a better way to test elderly people with breathing issues for alcohol impairment.
The minister also said he believes in the judicial appeals process.
“Any time there’s a change in the law, there are always court cases and precedents are set, so I’m confident in our appeals process.”
Teryn has already succeeded in having another similar roadside suspension overturned. Inger Forsyth, a sick 68-year-old Colwood woman, was left standing at a bus stop on a cold February morning after she was unable to provide a proper breath sample.
Teryn expects the petition and constitutional challenge will be heard in the coming months.
“The nature of the IRP regime in B.C. makes these things faster. We don’t have to wait for someone who is accused criminally of impaired driving,” she said.
A London, Ont., man charged with impaired driving in late December already plans to fight the constitutionality of the law.