Police in northern Queensland have charged a 64-year-old man with drunk driving after he was caught sleeping at the controls of his motorized wheelchair on a four-lane highway.
Other motorists on the highway had to swerve to avoid hitting the man.
After being awakened from his slumber, the police smelled alcohol on the man’s breath. He blew over 0.30 on a breath test, which is more than six times the legal limit.
The man told police that he was on his way to a friend’s house in Trinity Beach, which was 14 km from where he was found. Most of the route was to be along the highway.
The AP quoted regional traffic inspector Bob Waters as saying:
“The vehicles that we normally hear about with drink driving are the family car, the truck, the motorbike … [b]ut there are also other classes of vehicles that are subject to drink-driving laws,” including horses, bicycles, and motorized wheelchairs.
That’s fine for Australia, but what about Canadian Law?
This type of case has actually been litigated in many other jurisdictions, including Ontario.
Under the Criminal Code, which sets out the various drunk driving offences, a “motor vehicle” is defined as:
“a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.” (Criminal Code, s. 2)
Certainly this definition would seem to cover motorized wheelchairs, which are typically propelled by an electric motor.
Indeed, in 2004, Peel Regional Police pulled over a wheelchair-bound man who was drunkenly swerving from curb to curb on a major street. The operator of the wheelchair, one Mr. Shanahan, was subsequently charged with “driving over 80” under s. 253 of the Criminal Code.
In R. v. Shanahan (No. 2), 2007 ONCJ 242 (CanLII), Mr. Shanahan submitted that the inclusion of motorized wheelchairs within the Criminal Code‘s definition of “motor vehicle” violated the anti-discrimination provisions of the Charter of Rights and Freedoms.
Counsel for Mr. Shanahan argued (at para. 12) that:
A person who is confined to a motorized wheelchair cannot get drunk in their home because this would be a violation of s. 253 of the Criminal Code. They cannot travel on a public sidewalk because they would be breaking the law. They have no mobility when they are drunk because they cannot be in care and control of their motorized wheelchair. To the extent that s. 253 of the Criminal Code prevents people in motorized wheelchairs from getting drunk in situations where otherwise able bodied persons can become intoxicated, these provisions discriminate against disabled persons who use a motorized wheelchair as a means of mobility. Hence, disabled persons do not enjoy equal protection of the law.
This rather novel argument was rejected outright by judge Wake (at para. 20):
it must be remembered that the essence of s. 15’s purpose is the protection of a person’s dignity… it is difficult to understand how that purpose can be advanced by permitting a person on a motorized personal mobility device to consume alcohol to the extent that his ability to drive is impaired. The argument in favour of striking down s. 253 seems to be that the dignity of a disabled person can only be sustained if he is afforded the right to behave with a lack of dignity. In my view s. 15 of the Charter should not be used to support the result of such inverted reasoning.
Nice try, Mr. Shanahan.