Aussie Man Charged with Drunk Driving… in a Wheelchair

By: Lawrence Gridin · June 23, 2008 · Filed Under Criminal Law, Humour · 5 Comments 

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.

Comments

5 Responses to “Aussie Man Charged with Drunk Driving… in a Wheelchair”

  1. dz alexander on June 24th, 2008 3:08 pm

    So in Canada I can ride my bike drunk then?

  2. Lawrence Gridin on June 24th, 2008 10:15 pm

    dz:

    So long as it’s not a moped, it would appear that your drunken bike ride would not attract sanctions under the Criminal Code.

    That does not mean that you’d get away scot-free. You’d probably be violating other laws.

    As just one example, many provinces have laws against being drunk in public.

    Ontario’s Liquor Licence Act, R.S.O. 1990, c.L19, s.31(4) makes it an offence to “be intoxicated in a public place.”

    Furthermore, s.5(5) allows the police to arrest you without warrant if, in their opinion, it is necessary to do so for your safety. Therefore, depending on how badly you’re riding the bike while drunk, you might get arrested on the spot.

  3. KC on June 26th, 2008 4:48 pm

    I dont necessarily agree with the s. 15 argument but the way the court rejected it (at least the portion you quote) seems unfairly dismissive of an inherently personal choice. Who are the courts to determine that drinking to the point that you are over .08 (ie too drunk to drive but not that drunk) is somehow “undignified”? They’re basically passing judgment on a persons lifestyle choices and effectively depriving them of their ability to live that life while still being mobile. Sounds like the (il)logical basis for a lot of nasty laws–ie group X is singled out by being prohibited from engaging in Y act and because Y act is deemed by the courts to be somehow ‘undignified’ the Charter wont save you).

    Maybe you shouldnt be able to drink and drive a motorized wheelchair but the reason that survives a Charter challenge shouldnt be that getting drunk is somehow undignified.

  4. Lawrence Gridin on June 26th, 2008 9:43 pm

    KC:

    Good point. I agree with you completely.

    I cannot believe that Shanahan’s Charter challenge was rejected. The effect of the decision is that people who use motorized wheelchairs (including those that have no choice, because they are quadriplegic) cannot get drunk anywhere. As counsel for Mr. Shanahan pointed out, they can’t even legally do it in the privacy of their own home!

    Part of the problem is that Shanahan was not confined to a wheelchair. He was at least somewhat mobile and able to travel short distances on foot (at para 17):

    The evidence does establish that he is not confined to a wheelchair and is capable of walking 100 to 150 metres at a time. Clearly, he can consume all the alcohol he wishes in the privacy of his home or for short distances outside without having to resort to a personal mobility device.

    The judge was compelled to look at the particular facts of this particular case and to determine whether the accused’s section 15 rights were being violated. He concluded that they were not. The outcome might have been different if Mr. Shanahan was a quadriplegic and had no choice but to use a motorized wheelchair for mobility.

    There surely should be some prohibition on wheelchair-bound people getting so drunk that they swerve from curb to curb on a major street. Such behaviour is potential harmful or fatal (most likely to the guy in the wheelchair.)

    But there is no way that a blanket criminal prohibition on all drinking in wheelchairs, which is clearly discriminatory in its application, would survive after a section 1 analysis. In particular, I think it would at least fail the proportionality branch of the Oakes test.

    This case was wrongly decided and I am quite sure that Shanahan would win on appeal.

  5. justin on June 23rd, 2009 9:53 am

    if a cop arrests u for your own safety. if your coherent enough, all u have to say ill cooperate but i want it noted that im doing so under protest and duress. they still have the guns. also make sure they verbally state they are ordering u, and u can present them with a bill for the contract they just entered into. if u know your rights, they cant do a thing no matter what. and if they do, they better be willing to stake their badge and oath on it. its their job to be held accountable for every single action they take. and u are not a person so they have no right to bother u in the first place. u only give them that right when u agree to be a person.


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