The Liberal government has tweaked its proposed drug-and-alcohol-impaired driving legislation, but the changes to Bill C-46 are minor and do not assuage the constitutional concerns raised by major legal organizations.

On Oct. 16, the Justice Committee reported Bill C-46 back to the Commons with all major elements intact.

There were only 16 amendments made by the Liberal-dominated committee — mostly government-sponsored and non-substantive changes fixing drafting errors and inconsistences and making technical clarifications. The minor amendments do not affect, for example, the government’s ability under Bill C-46 to establish by regulation blood drug concentrations that constitute an offence, nor to specify which screening devices are approved.

Left untouched were major controversial reforms to the impaired driving regime — such as mandatory roadside alcohol breath testing (i.e. police screening without having a reasonable suspicion that alcohol is in the body). Critics contend that the proposed change opens the door wider to racial profiling and other police abuses of marginalized groups. The government told the Justice Committee it was minimizing that risk by amending the bill’s preamble to stipulate that “the exercise of investigative powers be in a manner that is consistent with the Canadian Charter of Rights and Freedoms.”

There are some changes to Bill C-46 that are worth noting. Bill C-46 was amended to:

  • expedite Parliament’s future mandatory statutory review to take place in three years (rather than the usual five);

  • clarify that the current mandatory minimum penalties applicable to the offence of impaired driving simpliciter and driving “over 80” will also apply (as they do now) to the more serious offences of impaired driving causing bodily harm and impaired driving causing death;

  • trigger the evidentiary deeming provision designed to help the Crown to prove an accused’s blood alcohol concentration (BAC) at the time of driving in cases when breath testing was done more than two hours post-driving — by allowing extrapolation back in time from her BAC results — only when the accused has consumed at least 20 ml of alcohol (not 0 ml as Bill C-46 originally contemplated); and

  • maintain the current definition of “vessel” in the Criminal Code — arguably leaving it unclear whether the offence of impaired operation, or “over 80” operation, of a vessel covers rowboats, canoes and kayaks. (As first introduced, Bill C-46 would have excluded from the definition of vessel those conveyances propelled solely by muscle power, but the Canadian Safe Boating Council objected, warning of the hazards of intoxicated boating of all kinds — including impaired canoeing).

The amendments fail to address the bill’s constitutional flaws, said Michael Spratt of Ottawa’s Abergel Goldstein and Partners LLP. Spratt’s arguments, on behalf of the Criminal Lawyers’ Association (CLA), pointing to the potential for absurd results to flow from the proposed provision allowing for the backward extrapolation of BAC when testing is done more than two hours post-driving did persuade the Liberals to modify the provision.

“There were those minor amendments, but there were no amendments to any of the other sections that the Civil Liberties Association, the Criminal Lawyers’ Association, the Canadian Bar Association and other witnesses pointed out were … problematic,” Spratt noted.

“All the way from random mandatory breath testing — very reasonable amendments from the NDP were rejected on that front — to the reverse onus of mandating that an accused who isn’t found behind a wheel prove his innocence and go to the expense of calling a toxicologist.”

Rob De Luca, the director of the Canadian Civil Liberties Association’s (CCLA) public safety program, agreed that the government’s amendments have not removed the bill’s constitutional question marks. “The inclusion of a three-year review of the legislation is a positive step as there remain several concerns with Bill C-46 that will require significant review and reporting if the bill is passed,” De Luca remarked.

“However, the amendments did nothing to address the many concerns CCLA has with Bill C-46, including our concerns about random roving stops, and the potential for profiling that may result from mandatory breath tests; the creation of evidentiary presumptions and reverse onus provisions that undermine the presumption of innocence; and the ineffective, and fundamentally unjust, increases in mandatory minimum fines and maximum penalties.”

As did the CLA and the CCLA, the Canadian Bar Association and the Barreau du Quebec warned the Justice Committee last month that key changes proposed in Part 2 of Bill 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).

Both the CLA and CBA asked the committee to scrap all of Part 2 of the bill.

The law groups raised red flags over two provisions. The first would replace Canada’s long-standing 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) — a change the CBA warned may fail 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.

Second, legal advocacy groups criticized the government’s revamping of 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 the effective requirement for drivers who engage in post-driving consumption to demonstrate that their BAC and/or blood drug concentration (the level is not yet specified) were not over legal limits at the time they were driving. The CLA called that proposal “a radical departure from the current law” that operates in a way “that is overbroad, unfair and unconstitutional.”

However other legal experts, such as constitutional law authority Peter Hogg of Toronto’s Blake, Cassels and Graydon LLP, and Western University emeritus law professor Rob Solomon, national legal policy director for Mothers Against Drunk Driving Canada (MADD), told MPs such concerns are overblown. Hogg predicted that Bill C-46 would survive Charter challenge. The Liberal government has tweaked its proposed drug-and-alcohol-impaired driving legislation, but the changes to Bill C-46 are minor and do not assuage the constitutional concerns raised by major legal organizations.

Source: The Lawyer’s Daily


Last updated on: 2017-10-31 | Link to this post