On September 9th, 2009, legal precedent was set in a Quebec courtroom when Judge Michel Mercier sentenced Roger Walsh, 57, to life in prison. Walsh had pleaded guilty to impaired driving causing death, having struck and killed Anee Khudaverdian, 47, a wheelchair-bound woman while she was out walking her dog. Reportedly, Walsh’s blood-alcohol level was over twice the legal limit, he was driving his wife’s vehicle without her permission, and he fled the scene. This was his nineteenth impaired driving conviction.
The Crown counsel had asked that Walsh be declared a dangerous offender with a fixed prison term of 20 years followed by 10 years under surveillance by Canadian Correctional Services. (“Lifers” who violate their parole can be returned to prison without a trial; dangerous offenders are under even stricter controls.) While this was the harshest sentence ever given by a Canadian court for impaired driving causing death —hence precedent setting— it was also the third case refusing to declare a serial impaired driving offender a “dangerous offender”.
While expressly describing Walsh as "incorrigible," Judge Mercier ruled, “the intention of the legislator was not to include the crime committed by the accused within the definition of a dangerous offender." He noted that the designation is usually applied in cases involving repeat sex offenders who are beyond rehabilitation, and that judges across Canada have struggled with whether impaired driving causing death or harm is considered a "serious personal injury offence," as required for a dangerous offender declaration.
So-called ‘hardcore’ drinking drivers—those who either can’t or won’t abide by the laws against impaired driving—are a risk to all road users and, increasingly, a larger percentage of the drunk driving population. As noted above, they are problematic for the courts; likewise for the police. Under current laws requiring the police to have a reasonable suspicion of drunk driving before they may administer a breathalyzer, experienced drinkers who tend to exhibit fewer signs of intoxication can often go undetected.
This conundrum and recent reports from Australia and Ireland showing dramatic reductions in drunk driving fatalities—36% and 23% respectively—following the adoption of random testing laws, have prompted Canada’s Justice Department to “[look] at all the options,” according to Justice Minister Rob Nicholson, for random testing laws in Canada.
Random testing laws allow police to conduct breathalyzer tests on drivers regardless of whether they reasonably suspect they have been drinking. Proponents say such a change would allow police at roadblocks to conduct about three times as many breathalyzer tests because they would not need to spend time determining whether there is "reasonable" suspicion a driver has been drinking. Civil libertarians argue that such laws violate our Charter right to protection against unreasonable search and seizure. Richard Rosenberg of the British Columbia Civil Liberties Association says, “Giving police power to act on a whim is not something we want in an open democratic society." A report is currently being prepared in committee to which the justice minister will publicly respond by late October.