The Department of Justice put its social media plans to promote a new impaired driving law on hold earlier this summer after it received sharp criticism online over a now-deleted tweet that one senior departmental official described internally as “inaccurate and misleading.”
Documents obtained by Global News under access-to-information laws show how the department spun into damage-control mode after backlash began circulating online in response to a tweet it posted on the evening of Friday, July 5, 2019.
In that tweet, the Justice Canada Twitter account stated: “It’s summer time and the living is easy! Whether you’re sitting on a patio or having a backyard #BBQ, remember it’s against the #law to have a blood alcohol concentration over prohibited levels within two hours of driving. Know the limits.”
But while the tweet quickly prompted backlash from both legal experts and politically partisan actors on Twitter, it also whipped up concerns behind the scenes at the Department of Justice and a debate about whether it would do more harm or good to take the tweet down.
“I just saw that there is a tweet that went out from the justice account last night about impaired driving that says inaccurately that it is illegal to have a bac [blood alcohol content] over prohibited levels within 2 [sic] hours of driving,” wrote the senior assistant deputy minister for the department in an email to staff at 8:13 a.m. on July 6.
“This is inaccurate and misleading. The tweet needs to come down now.”
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At issue was the description of the changes made by the Liberals to Canada’s impaired driving laws over the past year.
Bill C-46 became law in December and granted broad new powers to police to demand breathalyzer samples from people they believed may have been driving while impaired and eliminating some criminal defences to impaired driving, but the new law also raised concerns among some lawyers that it could amount to significant overreach.
That’s because of a provision in the law known as the two-hour rule.
According to Justice Canada’s website, the new rule makes it an offence to be “operating at or over 80 [milligrams of alcohol per 100 millilitres of blood] within two hours of driving.”
And that has led to speculation that it could impact Canadians who drive home and then consume enough alcohol once they are no longer driving to be above the legal limit within two hours after operating a vehicle — for example, those who drive to a barbecue.
The government says it introduced this rule to make it easier for police to catch those who drink and drive but then try to use either the intervening drink defence or the bolus defence. Those defences are when an individual argues they drank either right before or right after they drove and so were not technically above the legal limit while actually behind the wheel since alcohol takes time to metabolize.
However, the law makes a limited exception for those who drink after driving with no reasonable expectation of needing to provide a breath sample, although it still makes it a crime to refuse to provide a sample — which police no longer need reasonable grounds to suspect a driver is impaired to demand.
Some lawyers and Conservative critics have argued the law has the potential to be abused by police and quickly criticized the tweet.
After the senior assistant deputy minister’s request that the tweet be taken down, another departmental staff member wrote back, saying deleting the tweet could prompt more attention.
“If we delete it, it could prompt more attention and questions,” replied one manager of communications at the Department of Justice.
“Again, happy to delete it but just wanted to give you all the facts before making a decision. As well, what triggered the attention on this tweet was a conservative senator retweeted it and politicized it. Now a lot of trolls have jumped on the bandwagon, including fake bot accounts.”
The senior assistant deputy minister wrote back, saying the politics didn’t matter.
“I understand it has been politicized by some but there are credible legal voices criticizing it,” she wrote. “As it is in fact wrong it needs to come down and be corrected even though that will draw attention.”
She added later that “the tweet was actually incorrect because it was incomplete.”
“It’s not illegal to be over .08 within two hours of driving if you drank after driving, had no reasonable expectation that you would have your BAC tested and the BAC results are consistent with not being impaired at the time of driving,” she said.
“That was my main concern with removing and correcting so we don’t leave Canadians with the impression that it’s illegal to be intoxicated even if you did not drive while impaired.”
The tweet came down following a final request for removal from the chief of staff to the deputy minister, and a correction was posted in its place.
However, over the following days, internal confusion as to how the tweet got the go-ahead in the first place led the department to put its social media plans promoting the new impaired driving law on hold.
Several hours after the deletion of the tweet, the director of digital and corporate communications for the department emailed the director-general of communications at Justice Canada to say a review was being launched into the “departmental approvals process around social media.”
“Our planned social media content on impaired driving is on hold for for [sic] the remainder of the month while that work is completed,” the email states.
The next day, the department put together an analysis of online reaction to the tweet.
That July 7 memo appeared to assigned blame for the reaction largely to those it deemed trolls and partisans.
Under the overview section, the analysis described its purpose as an assessment of “online public reaction to a departmental tweet that was politicized by Twitter accounts with clear political associations.”
“The department removed the tweet and replaced it with a clarification in order to mitigate some users potentially purposely sowing confusion and spreading disinformation,” it continued.
“The discussion has primarily consisted of trolls, vulgar tweets, spammers, users purposely seeming to spread confusion, inaccuracies and disinformation, as well as seemingly large amounts of faceless bots, whose tweets had nothing to do with the topic and just consisted of profane language.”
It goes on to describe the reactions it interpreted from journalists, pundits and organizations to the tweet.
“The general sentiment online, outside of the negative reaction by those with clear political leanings, has been that while the original tweet by the department could have been clearer, it should have left the tweet up and not given in [to] being trolled by those with the political accounts.”
One day later, on July 8, the director-general and senior general counsel for Justice Canada’s Criminal Law Policy Section (CLPS), weighed in.
“CLPS was not consulted on the tweet before it was posed; had we been, we would had [sic] advised against the tweet/revisions to clarify it.”