Organized bar groups are ringing alarm bells about the constitutionality of various proposed changes to the Criminal Code’s impaired driving provisions, but some legal academics contend the warnings are overblown.

This week representatives from the Canadian Bar Association (CBA), Barreau du Québec, Canadian Civil Liberties Association (CCLA) and the Criminal Lawyers’ Association (CLA) appeared before the Commons Justice Committee to share their views on Bill C-46, along with individual lawyers specializing in impaired driving law who travelled to Ottawa from as far away as B.C.

All warned that key changes proposed in Part 2 of the federal government’s overhaul of the Criminal Code’s alcohol- and drug-impaired driving provisions (C-46) are either constitutionally suspect, or apt to be struck down as unjustified violations of the Charter rights to counsel (s. 10(b)), and to be free from arbitrary detention (s. 9) and unreasonable search or seizure (s. 8). Indeed the CBA and CLA called for Part 2 to be scrapped altogether.

Two proposed changes have attracted considerable fire.

The first would replace Canada’s longstanding regime of selective breath testing — which authorizes roadside breath testing by an approved screening device only if police have a reasonable suspicion that a driver has alcohol in his or her body — with a new law authorizing police to compel roadside alcohol screening, without any grounds (so-called “random” or “mandatory” breath testing).

“Moving to a random test and removing the minimal requirement that an officer form a suspicion may well not meet the test of minimal impairment, or the proportionality components of the Oakes test” under s. 1 of the Charter for justifying the resulting infringements of the right to counsel and to be free from arbitrary detention or unreasonable search or seizure, the CBA told MPs.

Second, legal groups say the government proposes to revamp the offences of impaired operation and operation over .08 (s. 320.14) in a way that could catch drivers who consume alcohol or drugs after they have stopped driving — and effectively requiring drivers who engage in post-driving consumption to demonstrate that their blood alcohol concentration and/or blood drug concentration (the level is yet to be specified) were not over legal limits at the time they were driving. The CLA calls that proposal “a radical departure from the current law” that operates in a way “that is overbroad, unfair and unconstitutional.”

Michael Spratt, Abergel Goldstein & Partners LLP

“This is, to a large extent, recycled Conservative legislation [Bills C-226 and C-73] that fundamentally changes, in an unconstitutional manner, how impaired law ... will operate in Canada,” commented the CLA’s representative, Michael Spratt of Ottawa’s Abergel Goldstein & Partners LLP, prior to his Sept. 20 appearance at the Commons Justice Committee.

For example, Spratt told The Lawyer’s Daily, “if this bill passes, the offence of being drunk or intoxicated or impaired while driving is replaced with an offence of being impaired within two hours of driving. This bill reverses, in an unconstitutional way, the burden for someone — who has done nothing wrong — to prove their innocence.”

Bill C-46 creates “exceptions” or defences to those who have exceeded blood drug levels or blood alcohol levels if accused can show: they consumed alcohol or drugs, or drugs and alcohol, after ceasing to operate the conveyance; after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and their alcohol and/or drug consumption is consistent with their blood alcohol concentration or blood drug concentration having been within legal limits at the time they were operating the vehicle.

But Spratt notes “it’s not a crime to drive. It’s not a crime to drink. It’s not a crime to drink after driving. But this bill makes it a crime to drink after driving unless the accused can prove certain things — and that’s unconstitutional.”

Like the CCLA, the CLA also told MPs that the power the government proposes to give to police at roadside to pull over drivers for random breath testing (s. 320.27(2)) is open to serious abuse via racial or other profiling. “Quite simply, what we do know, is that even in the enforcement  of the most routine traffic laws, systemic discrimination exists and minorities are grossly and disproportionately affected,” Spratt explained.

He cited the Ottawa Police Service’s Traffic Stop Race Data Collection Project last year — sparked by a human rights complaint of racial profiling — which revealed visible minorities were disproportionately targeted at traffic stops, even though those individuals were also less likely to actually be ticketed for driving infractions (i.e. racialized individuals were more often stopped by police for no reason).

“We also know that many laws — like the prohibition against marijuana — disproportionately operate against the marginalized and the racialized, and we know that ‘carding’ disproportionately impacted the racialized and the marginalized,” Spratt pointed out. “This provision in this bill is just carding in a car.”

The law groups’ constitutional concerns were challenged, however, in separate presentations to MPs Sept. 18, by Western University’s emeritus law professor and national director of legal policy for Mothers Against Drunk Driving Canada (MADD) Robert Solomon and constitutional law expert Peter Hogg of Blake, Cassels & Graydon LLP in Toronto. Hogg supplied a similar legal opinion to MADD in 2010 that affirmed the constitutionality of mandatory breath testing.

Mandatory breath testing was proposed in Bill C-226 by Conservative MP Steven Blaney, but was killed this year by the Commons Public Safety Committee, which cited doubts about the bill’s constitutionality, balance and efficacy.

Robert Solomon, Western University

Solomon told MPs that mandatory alcohol screening is likely to reduce the opportunity for racial profiling because it is a police best-practice to generally stop everyone.

“Right now it's up to the subjective judgment of the officer,” he noted.

“At a mandatory alcohol screening checkpoint, like current selective breath-testing checkpoints, the practice is that as cars come along they're waved in — that doesn’t change at all,” Solomon assured Liberal MP Ron McKinnon. “The difference is instead of the officer coming up to the car and asking you for your ownership, your licence, and insurance, trying to detect the telltale odour of alcohol, they simply present you with the machine and say, ‘Blow.’ So in many ways, it may well be faster than our current selective breath-testing procedure.”

In a brief to the committee, Solomon disputed claims by defence counsel that the impaired driving law is working well — noting that impairment-related crashes are the number one criminal cause of death and that Canada has long had one of the worst impaired driving records among comparable countries (despite having among the lowest rates of alcohol consumption). He said research from many countries with comprehensive mandatory alcohol testing establishes that such programs are effective and dramatically reduce accidents and save many lives. He called the CCLA’s argument that the same will not necessarily occur in Canada “simply false.”

Peter Hogg, Blake, Cassels & Graydon LLP

Accepting Solomon’s expert opinion that mandatory alcohol testing will operate as a much more effective deterrent to drunk driving than the present law, Hogg argued in his written submission to MPs that it is “an easy conclusion” that courts would uphold such a reform as constitutional. Hogg said mandatory testing would not infringe s. 8, and would only lead to “minor infringements” of the right to counsel and the prohibition on arbitrary detention which courts would uphold, under s. 1 of the Charter, as reasonable and demonstrably justified limits in a free and democratic society.

He reasoned there would be no unreasonable search or seizure in violation of s. 8 because mandatory testing will make an important contribution to public safety, while the invasion of the driver’s privacy will be minor and transitory and not much different from existing legal obligations to provide police with evidence of licensing, ownership and insurance — requirements which the Supreme Court has upheld.

Moreover the breath sample is for screening purposes only and will not be admissible in evidence in criminal proceedings. There will be no stigma, humiliation or racial profiling because typically every driver passing through a checkpoint will be screened, Hogg said. “The Supreme Court has already relied on s. 1 to uphold the existing law respecting random stops and breath tests because of their contributions to public safety and [mandatory] breath testing does not raise any truly new issue.”

However CCLA representative Roberto De Luca noted that the government’s proposal would not limit the police’s new search power to compel breath testing to stationary checkpoints where discretion is curtailed and therefore the risk of racial profiling or other improper exercises of police powers is reduced.

Responding to a query from MP McKinnon, De Luca acknowledged that “we definitely think that if the provision were restricted to fixed checkpoints and there were procedures in place that ensured randomization so that for instance either everybody is stopped, or if there's a capacity issue what you can do is stop every fifth or sixth driver — that does significantly curtail the problem of discretion and profiling. If the provision were changed to ensure that would be the practice — I mean it's been called the best practice and were codified — we would have significantly less concerns with the provisions. We still think there would be issues in part having to ensure that there's randomization and oversight and accountability, but I think it would certainly be a preferable provision.”

De Luca suggested there would still be Charter issues with mandatory breath screening, but the scheme’s. s. 1 Charter defence “might be a little bit stronger because the discretionary component is so curtailed.”

Spratt contested Hogg’s Charter analysis because the Ottawa criminal lawyer said “the practical realities of groundless alcohol screening are an important consideration that are not given sufficient weight.”

“The reality is that random screening will not be random,” he argued. “It will not just be a minor inconvenience. It will disproportionately impact racialized and marginalized communities. It is a blank slate for the continuation of destructive racism in our police forces and is unconstitutional.”

For the CBA, Kathryn Pentz agreed that in practice, when there is a line of vehicles stopped, that the police will, because of the time involved, “certainly wave certain people through, and that ... certain profiling that will take place. You and I would probably be waved through, and other individuals would probably be stopped based on other characteristics.”

Commenting on the bill’s proposal to enact per se legal limits for drugs, Pentz said the difficulty is “that drugs affect everybody differently. So it's not going to be possible, at least from my understanding talking to the experts, to say that everyone will be impaired at a particular level. The only answer to that, unless there is some science that evolves to deal with that ... is ... remain with the [present system of] drug recognition experts.

Source: The Lawyer’s Daily


Last updated on: 2017-10-29 | Link to this post