The Canadian Bar Association’s Criminal Justice Section has grave concerns over Justice Minister Jody Wilson-Raybould’s proposal to lower the blood alcohol concentration (BAC) for drivers from 80 milligrams to 50 milligrams per 100 millilitres of blood.

The CBA confirmed that it received a letter from the Justice minister with an invitation to comment on a Department of Justice (DOJ) discussion paper titled Lowering the Criminal Blood Alcohol Concentration

The letter and discussion paper were provided to The Lawyer's Daily by the Department of Justice.

"I believe that a lower criminal BAC would better respond to the danger posed by drinking drivers. The current level of 80 mg was selected in response to research that indicated the risk involvement in a fatal crash was at least double at that BAC. More recent research indicates that the initial data underestimated the fatal crash risk. The risk is almost double at 50 mg, almost triple at 80 mg and rises exponentially above that level," wrote Justice Minister Wilson-Raybould in her request for comment.

The CBA’s response, dated Aug. 4, said the Criminal Justice Section, made up of prosecutors and defence lawyers from across the country, is aware that impaired driving is one of the most extensively litigated areas of criminal law with that volume alone having enormous implications for the justice system in terms of cost and delay.

“Lowering the BAC to 50 mg of alcohol per 100 ml of blood might seem a common-sense approach to further reduce impaired driving. However, we caution that there are important considerations at play. A BAC at 50 mg does not necessarily measure impairment. Even if any alcohol in a person’s system has some impact, not every level of alcohol actually constitutes legal impairment,” said the response, signed by the Criminal Justice Section chair, Loreley Berra, on behalf of her colleagues in the section.

The two-page letter from the CBA goes on to say that there is broad acceptance among experts that people are impaired at 100 milligrams. The Criminal Justice Section said there is less consensus among experts at the 80-milligram level, but it’s enough that “the Crown can produce expert evidence at trial to support this argument. However, we understand that there is little to no consensus in the scientific community that 50 mg is impairing.”

The CBA's response said while it’s permissible for the federal government to decide on the lower level it cannot, in the Criminal Justice Section’s opinion, justify that change as something that will successfully detect drunk drivers.

According to the section’s response, its members, who work on the front lines of the criminal justice system, have serious concerns about the impact a lower BAC level would have on the administration of justice.

“Criminal courts are overburdened and court delays are a problem receiving significant attention. If, as suggested in the Discussion Paper, an additional 75,000 to 100,000 cases would be added to the dockets as a result of the proposed change, the criminal justice system will have difficulties coping with that additional demand. This is particularly problematic with the time restrictions placed on the courts following the Supreme Court of Canada decision in R. v. Jordan. Most drinking and driving offences proceed by way of summary conviction in provincial and territorial courts, and those cases must be completed within 18 months to comply with that decision,” wrote Berra in the letter.

Ian Carter, a partner at Bayne Sellar Ertel Carter and vice-chair of the Criminal Justice Section, said the section's response came after extensive consultation with its members across the country and was reviewed by Berra, a Crown prosecutor in Saskatchewan.

He said the main point in the letter is that anytime a change may be made to legislation it’s important to examine the “collateral consequences.”

“Because what on its face might seem like a reasonable thing to do might have repercussions,” he said adding that the section’s biggest concern is how this will impact the criminal justice system. “These cases already take up a huge amount of time and resources within our justice system. … Obviously, the more cases in the system the more delays you’re going to get. And whether that is going to be an unintended consequence of this because lowering it [BAC] you’re going to have more people that are captured, more cases going before the courts. Can our system handle it?”

Carter describes impaired driving as a middle class crime because people involved must have the resources at their disposal to have a car and insurance. He said that means the people involved are able to fight their charges in court, which can cause a backlog in the justice system.

Carter points out that the DOJ's discussion paper highlights the administrative regime in British Columbia where first time offences are not charged criminally but subject to non-criminal provincial sanctions. The section's letter notes that the discussion paper also makes reference to Ireland lowering its BAC level to 50 mg. But the CBA noted that while making that change, Ireland moved to a regime where offenders with a valid licence whose levels were below a certain level could proceed by way of administrative penalty.

“If the BAC is lowered in Canada, the CBA section believes that the federal government should encourage an administrative approach across the country to ensure the system can cope with the anticipated increased caseload,” Berra wrote in the letter.

Carter emphasized that the administrative system in B.C., which uses a combination of monetary penalties and driving prohibitions, still is a deterrent to impaired drivers without putting undue pressure on criminal justice resources.

“All of the research shows that the biggest deterrent out there is a combination of education, which has tended to work over the years, and enforcement. In other words, a police presence, but that’s a resource issue as well. If you know you’re going to get caught it’s less likely to occur. That has more effect, for instance, than changing the blood alcohol level,” he said.

The DOJ said the discussion paper was sent to stakeholders in the legal community, law enforcement and other non-government organizations for comment. According to the DOJ, the consultation process on this matter is ongoing, and no decision on lowering the BAC has been made.

Source: The Lawyer’s Daily


Last updated on: 2017-10-01 | Link to this post