A 20-year-old Conservative activist is challenging a controversial new provincial law that makes it illegal for young drivers to drink alcohol before getting behind the wheel.

Toronto’s Kevin Wiener, who tools around in a 1988 Cadillac he got from his grandfather, will file an application in the Ontario Superior Court of Justice on Wednesday.

The law that took effect Sunday requires drivers aged 21 and under to have a blood alcohol content of zero.

Wiener, a business student at the University of Western Ontario, said the law is unconstitutional because it discriminates solely on the basis of age.

“Talk to my friends, I’m actually the last person to do any risky behaviours or stuff like that,” he said Tuesday, emphasizing he does not approve of drunk driving.

“This law is discriminating on age and it should be based on years of experience (driving),” said Wiener, suggesting a fairer model is the Manitoba law that prevents all drivers from drinking for their first five years under that province’s graduated licensing system.

“The Charter (of Rights and Freedoms) prohibits discrimination based on age.”

While Wiener is a federal and provincial Conservative party member, he insisted the legal crusade is his alone and is not driven by partisan politics or a desire to embarrass Premier Dalton McGuinty’s Liberals.

“Right now, I’m self-representing. I’m driving a 22-year-old car, so if I had $30,000 or $40,000 to burn, it wouldn’t be going to lawyers’ fees,” he said.

“This really isn’t a left-right issue. As a young person, I don’t feel it’s fair for the government (to do this). I’ve been driving for four years, I have a clean driving record, I have no demerit points ever and the government’s saying that because I’m 20, I can’t be trusted to have a glass of wine with dinner.”

Transportation Minister Kathleen Wynne said in an interview that she’s “comfortable” the new legislation can withstand any legal challenge.

“We’ve changed these rules based on evidence. We looked at the stats. We know that at the age of 22 the statistics start to change, so 19, 20, and 21 are really peak years for drinking and driving,” said Wynne.

“As a society, we’ve made a lot of decisions based on age,” she noted.

“Young people can’t get their licence till they’re 16, they can’t vote till they’re 18, they can’t drink till they’re 19. Every two years, anybody over 80 … has to do a written test and if there’s a problem, they have to take a driving test.”

Still, NDP MPP Peter Kormos (Welland) said the government may have a rocky road ahead.

“At first glance, the law clearly is discriminatory,” said Kormos, a lawyer and the New Democrats’ justice critic.

“Maybe it’s time for us in Canada to adopt a standard that’s prevalent in so many European countries of literal zero tolerance for drinking and driving,” he said.

“That makes it so much easier. You don’t have to try to guess your breathalyzer limit, you don’t have to play with some toy machine in a bar that costs you $2 to measure your breath with. Don’t drink and drive – it’s so easy.”

Under Ontario’s new law, drivers aged 21 or younger lose their licences for 24 hours if even trace amounts of alcohol are detected in the blood. A second offence could result in a 90-day suspension and a third violation could spell the loss of driving privileges.

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McGuinty’s government amended its youth driving legislation after a campaign by Tim Mulcahy, whose son Tyler, 20, was killed in a July 2008 car crash after an afternoon of drinking at a Muskoka club.

Two of his friends also died when his high-powered Audi S4 crashed into a river.

Mulcahy took out full-page newspaper ads and lobbied politicians of all stripes to tighten the rules for young drivers.

Charter Challenges

Challenging a law as unconstitutional under the 1982 Charter of Rights and Freedoms requires a legal journey that begins in a lower court.

In this province, the complainant applies to the Ontario Superior Court of Justice to have the law considered null and void.

When the court rules in favour of the applicant, the law is not usually struck down right away. Instead, the government is given a reasonable amount of time —perhaps six months to a year—to amend the legislation.

If the court rules in favour of the government, the applicant could take the case up the legal ladder to the Court of Appeal. (This avenue is also open to the government if it is ordered to amend a law.)

In Ontario, Court of Appeal rulings are binding unless overturned by the Supreme Court of Canada.

That means either the government or the complainant could continue the legal battle to the highest court in the land.

When a law is challenged as unconstitutional, courts tend to expedite proceedings so that the entire process, in some cases, takes less than a year.

-Robert Benzie

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