By Elizabeth Raymer for Canadian Lawyer
Supporters of federal rules on alcohol screening say it will help prevent accidents, but critics predict Charter litigation.
In May, the federal government tabled Bill C-46, which would amend the Criminal Code for impaired driving offences. The proposed changes come on the eve of the government’s legalization of recreational cannabis use, and they include new “legal limit” drug offences, as well as mandatory alcohol screening.
Proponents say that mandatory alcohol screening, for one, will bring Canada into line with other Western nations that have lowered impaired driving charges using this form of screening; but the criminal defence bar cautions that aspects of the new bill may present Charter challenges and further burdens on the courts.
“I think, absolutely, we are going to see more impaired drivers before the courts, and a greater strain on the justice system,” says Toronto defence lawyer Daniel Brown.
“Almost exclusively, these [impaired driving] cases are prosecuted in the provincial court system,” where, he says, there is “already a strain on prosecutorial and police resources; these changes will only increase the strain on all of the justice participants.”
Bill C-46 has two parts. Part 1 would add new sections for driving while under the influence of drugs other than alcohol and would come into force on Royal assent, before Bill C-45, the Cannabis Act, comes into force.
Part 2 of the proposed legislation would reform the entire Criminal Code transportation regime and would include all the drug-impaired driving provisions under Part 1 of the bill. It would repeal all the current provisions dealing with transportation offences (ss. 249 to 261) and would come into effect 180 days after Part 1 received Royal assent, in order to allow the provinces time to prepare for its implementation.
Mandatory alcohol screening is the proposed change that seems to be getting the most attention. The “reasonable suspicion” test for the roadside breath test will be eliminated with the introduction of mandatory alcohol screening, under proposed s. 320.27(2). Under current law, a police officer with an alcohol screening device must have grounds to make a demand for a breath test; this would disappear if passed under the new legislation.
Otherwise known as random testing, “the revised title does not change its essence and it remains a random test that can be administered without any grounds,” the criminal justice section of the Canadian Bar Association wrote in its review of Bill C-46, published in September. “What would actually make streets and highways safer are additional resources for police forces,” the report’s authors noted. “Random breath testing (RBT) is likely to lead to more Charter litigation, absorbing significant system resources without substantial results.”
Kyla Lee, who practises with Acumen Law Corporation in Vancouver, is a dedicated impaired-driving defence counsel who was an expert witness before the House of Commons in September on Bill C-46. She expresses concern with the mandatory alcohol screening provision of the proposed legislation for its potential targeting of minorities.
The legislation doesn’t say that mandatory alcohol screening can be conducted only at roadblocks but for “any reason at any lawful traffic stop,” says Lee. “It’s going to have a significant impact on visible minorities,” she adds. “In B.C., we see over-policing of First Nations and Asian communities.” Police still have “subjectivity” in determining where the road checks are set up, and “we see the over-policing in areas for people of colour,” she says, also citing instances of “carding” of aboriginal men in the West and black men in Toronto in particular.
But according to Robert Solomon, professor of law at the University of Western Ontario and the legal policy director for Mothers Against Drunk Driving, “exactly the opposite is true.
“Now, police decide who to pull over,” Solomon says. With mandatory alcohol screening, “every driver passing by the mandatory screening checkpoint is waved in, unless there’s a backlog. Every driver stopped is given a sample; there’s no subjective judgment. If anything, mandatory alcohol screening actually reduces the likelihood of subjective enforcement of the law.”
In the many jurisdictions around the world that have instituted mandatory alcohol testing, he says, “impaired driving deaths and injuries fell dramatically.” For example, data from 2013 showed that Canadians consumed 33 per cent less alcohol per capita than Germans, yet Canada’s per-capita rate of alcohol-related crash deaths was almost five times higher than theirs, which Solomon attributes to the different regulatory regime.
But whether the random roadside breath demands will pass Constitutional muster remains to be seen. Stephen Smith of the Gunn Law Group in Edmonton — who is currently representing one of two appellants before the Supreme Court of Canada in cases involving demands for maintenance records of approved instruments — believes that mandatory alcohol screening “represents a significant Constitutional change in the Canadian approach and almost certain to be found a s. 8 breach and maybe s. 1 of the Charter,” he says.
Another proposed change under Bill C-46 would affect the so-called bolus drinking defence, when an accused has drunk a large amount of alcohol after driving, then produces readings on an approved instrument in excess of the limit but consistent with readings below the legal limit at the time of driving. The proposed changes will now make it a defence to test over the legal limit of alcohol within two hours of driving, says Brown.
“These things are designed to make it easier to prosecute drinking and driving offences but at the expense of Constitutional rules and procedural fairness,” he says.
Section 320.31 of the bill deals with presumptions regarding breath samples. It proposes that if samples are taken more than two hours from the time of the offence, an individual’s blood alcohol concentration is presumed to be what was stated by the approved instrument plus an additional five mg. of alcohol in 100 ml of blood for every 30 minutes over those two hours.
“The presumption would eliminate the need for the Crown to call an expert toxicologist when the sample is taken after two hours,” the CBA criminal justice section notes in its report, adding that “[t]he proposed legislation should not eliminate the need to call an expert.”
“What the new legislation does is to make the presumption irrebuttable,” says Smith. “Whatever the instrument says is the truth.”
Part 1 of Bill C-46, which deals with drug-impaired driving, authorizes the Governor in Council to make regulations prescribing acceptable concentrations of drugs in the system. For Solomon, “the government is right to establish per se limits for all of the drugs by regulation. . . .
“The new legislation is going to be like our zero-eight law,” he says. “The only issue will be the content of THC in the blood.” This is a step forward, he adds, because the current system is “highly technical” and expensive to operate. And cannabis is not a harmless drug when used by drivers. Studies have shown the extent to which cannabis increases relative risks of vehicular crashes as being at least double, he says.
According to the CBA, however, “linking impairment to a given blood drug concentration may be problematic.” For example, impairment for habitual versus casual cannabis users may occur at very different levels of consumption, even though their blood samples may reflect similar amounts of the drug.
In anticipation of the legalization of recreational cannabis use, provinces are starting to develop their own new legislation. In September, Ontario proposed new measures for drug-impaired driving. For novice and young drivers (age 21 and under), there will be zero tolerance for any presence of drug in their system, “as detected by a federally approved oral fluid screening device.” There is already a zero tolerance for alcohol presence for this group. Commercial drivers would likewise see a licence suspension (of three days) and a monetary penalty if caught driving with any alcohol or other drugs in their system. And all drivers would see escalating monetary penalties that would apply to all impaired driving sanctions for alcohol and other drugs.
Saskatchewan introduced tougher impaired-driving laws in 2016 (it reportedly has the highest percentage of impaired drivers in the country), and British Columbia introduced tough new drinking-and-driving penalties in 2010. Under its Immediate Roadside Prohibition program, a three-, seven, 30- or 90-day driving prohibition is issued at the roadside to alcohol-impaired drivers under B.C.’s Motor Vehicle Act. These are administrative penalties, though criminal charges may be laid separately. The legislation was amended in 2012 after being challenged under s. 8 of the Charter and amended yet again in 2016, says Lee. She is critical of the current legislation for reversing the burden of proof from the officer to the driver and, she says, “the IRP is registered on your driving record forever.”
In email correspondence, however, a spokesperson for the B.C. Ministry of Public Safety and Solicitor General said that “since the Immediate Roadside Prohibition program began in 2010, we have seen a 50-per-cent reduction in alcohol-related motor vehicle fatalities. There has also been a decrease of approximately 85 per cent in impaired driving-related reports to Crown counsel since 2010.”
Solomon calls the B.C. measures “excellent” — if imperfectly executed — including the automatic licence suspension and vehicle impoundment. “It has had a good impact. Because of the publicity [around the B.C. legislation], there was a sharp drop in impaired-driving charges.”
But, says the director of legal policy for MADD, across Canada, “We have 13 different systems of roadside screening and none in Quebec. We’ve worked for how many years to convince the public that drinking and driving is a criminal offence [and] we don’t want to fight the battle 13 times.”