Just in time for the holiday season, an impassioned debate is taking place in our legislatures, courts, and op-ed pages regarding drinking and driving laws.

The arguments on either side of the debate are familiar. Those in favour of toughening the law point to the fact that deaths by drunk driving have been reduced by 40% in British Columbia since it passed its law in September 2010. In other words, "it works," so don't fix it. Those opposed to this legislation note that it comes with a significant extension of arbitrary police powers and huge potential for unfairness. Last week, the B.C. Supreme Court agreed, noting the law's arbitrary appeal process is "seriously flawed," with citizens having no effective recourse (and facing huge financial and reputational consequences) to appeal either defective equipment or policing errors.

I have no sympathy for impaired drivers, and believe the state has a legitimate interest and responsibility to protect all of its citizens. I am fully supportive of tough and consistently administered impaired driving laws. However, I also believe in fair process and democratic institutions. As Alberta's provincial government proceeds to implement similar legislation notwithstanding the B.C. Court decision, the debate now goes beyond civil libertarians versus those who are more inclined to trust the state. The concern is really that in the name of public safety, innocent people who did not drink and drive might face potentially life-ruining consequences.

On top of that threat, there are some who argue that the long-term impacts on public safety are not at all what is being advertised, either. Yesterday I spoke with Randy Munro, a retired RCMP veteran who spent 34 years policing. His concern is that the new law incents police to focus on the administrative penalties which are easier to process and do not require court time, rather than pursuing criminal code charges for those who are at or over the 0.08% blood alcohol limit. "I have lawyer friends who work both sides who advise their D.U.I. workload has gone way down," Munro told me. The B.C. Crime Statistics page is not current enough to check the numbers on this anecdotal claim, but there are significant questions that need to be answered.

It is easy to take the pious-sounding approach and support tough laws on drinking and driving. I am not expert enough to offer a qualified opinion as to whether the legal line should be 0.05% or 0.08%. What I do know is that if it is to be changed, it should be done in an appropriate democratic manner, balancing the rights of citizens and the presumption of innocence. Finding ways to sidestep the rights of citizens and placing all of our trust in police officers and roadside testing machines (which caused at least 2,300 mistaken tests in B.C. during the first year) is hardly democratic balance. There is also the concern that the focus on "money grab" administrative prohibitions (no criminal record, no court sanctions but increased fine revenue) may not be the recipe for improved safety in the longer run.

It is curious that at a time when the rights of occupiers to protest and the rights of Parliamentarians to debate issues without prorogation are made out to be barometers of the health (or lack thereof) of our democratic institutions, the simultaneous transfer of my individual rights from the judicial branch (where I have the right to stand before a judge and defend myself against charges) to the legislative branch (where the legislature empowers the police to impose sweeping penalties on me without a meaningful chance to defend myself) scarcely raises a whimper. When it comes to democratic process, this law is blowing at least a "warning", if not a "fail."