The Trudeau government’s proposed alcohol-and drug-impaired driving legislation violates the Charter and will clog already overburdened courts with Charter challenges from coast to coast to coast, says Senate Liberal Serge Joyal, the influential chair of the red chamber’s Legal and Constitutional Affairs Committee.

The Senate’s legal dean said that, in his view, Bill C-46, as put forward by the government, is “full of holes,” counterproductive and apt to be substantially revised in the Senate. His view was shared by at least some other senators after they finished hearing the testimony last week from the Canadian Bar Association (CBA) and other legal groups on the government’s proposed major overhaul to the Criminal Code’s impaired driving provisions. Bill C-46 is ancillary to the Liberals’ signature proposed legislation to legalize cannabis (Bill C-45).

Joyal told The Lawyer’s Daily that, in his view, the “safest” and “simplest” way to avoid the ss. 8, 9 and 10(b) Charter violations and litigation warned of by the CBA and others in respect of the government’s contentious proposal to enact mandatory “random” breath testing (RBT) for alcohol at roadside would be to amend Bill C-46 to “reintegrate” the current requirement that police must have reasonable suspicion that a driver has alcohol in his or her body before they screen for alcohol at roadside.

“RBT, in my opinion, is totally contrary to the Charter. There is no question about that,” Joyal declared. The long time constitutional lawyer emphasized that the Supreme Court’s approval of roadside screening hinged on the existence of a requirement for reasonable suspicion.

“But once you remove that reasonable suspicion and you just start stopping people and compel them to have an intrusive test against [their] privacy rights, this will be contested … not only in the 10 provinces, but in the three territories.”

Joyal dismissed as “wishful” or “magical” thinking the assurances of federal Justice Minister Jody Wilson-Raybould that the changes proposed by Bill C-46 (which also include prosecution-friendly reforms such as eliminating the “bolus” drinking defence, restricting the intervening drink defence and limits on Crown disclosure of breathalyzer maintenance records) will reduce litigation and court delays in the frequently litigated fields of drug-impaired and drunk driving.

“The bill is full of holes … that would give rise to challenges on all kinds of counts, so you won’t make things easier,” Joyal said, calling Bill C-46 a “bonanza” for lawyers, but not for the justice system or the public.

“You will have complicated the system much more than you think by [the bill] trying to plug all the loopholes … [which will] in fact give rise to additional challenges,” he asserted.

Conservative Sen. Denise Batters, a lawyer and former chief of staff to Saskatchewan’s justice minister, echoed Joyal’s view that, based on lawyers’ testimony, a flood of constitutional litigation is likely as a result of RBT and other measures in Bill C-46.

“I have been on this committee for five years — where we had dozens of pieces of criminal justice legislation from our former Conservative government — and I have never heard such a damning constitutional indictment of a piece of legislation before,” Batters told The Lawyer’s Daily. “From what I have personally witnessed at the legal committee, I think that the government should seriously consider dropping the random alcohol testing. And then there are also major other areas of concern.”

In Batters’ view, the preponderance of opinion before the committee from legal groups, and from individual defence counsel with special expertise in impaired driving law, contradicts the opinion of one of the country’s preeminent constitutional scholars, Peter Hogg, that it is “an easy conclusion” that courts would uphold RBT as constitutional, in part because of its potential to save lives.

“I think that the likelihood of especially the random alcohol testing provisions being found to be unconstitutional is very real,” remarked Batters, who said last week’s testimony by Vancouver defence counsel Kyla Lee, a specialist in impaired driving law, “absolutely … dismantled professor Hogg’s analysis on [RBT].”

However, David Taylor, a spokesperson for Wilson-Raybould, said the government considers that there is “convincing evidence” about the efficacy of RBT in saving lives, from among the more than 40 countries that authorize mandatory alcohol testing. “Mandatory alcohol screening is one of many measures contained in Bill C-46 that is expected to contribute to efficiencies in the criminal justice system,” he said by e-mail. Moreover “our government is confident that the proposals are consistent with the Constitution and will vigorously defend any challenge.”

Statistics show that prosecuting drug-impaired driving is generally a more time-consuming and resource intensive exercise than prosecuting alcohol impairment on the roads. However, Joyal said he believes Bill C-46 will generate even more litigation around proposed per se THC limits (due to the absence of scientific proof of the link between those limits and impairment) — as the CBA and other law groups at the committee predicted.

“It’s going to be a nightmare for Crown attorneys because they can’t just throw these [drug-impaired driving] charges in the court, and then think the court will deal with it,” he explained. The court “will want to satisfy itself that the scientific proof is really credible because you can’t sentence somebody to prison if the proof is not watertight in terms of its scientific basis. It’s not at all watertight.”

In that regard, one Conservative senator, lawyer Claude Carignan, has suggested that Bill C-46 should be amended to suspend the application of per se limits until science backs up their use. In the meantime, police could continue to employ drug recognition experts.

The government has defended the per se drug limits, stating the three new offences based on them are based on “careful consideration of the available scientific evidence on cannabis and driving,” in particular from the research of the Drugs and Driving Committee.

“With respect to blood drug concentration levels, particularly for the low-level, fine-only drug offence for THC, our government is moving forward with a precautionary approach,” Taylor said. “From our perspective there is no safe level. … The proposed levels reflect the best available scientific evidence, and was informed by the experiences of other countries. The Standing Committee on Justice and Human Rights agreed with our assessment. ... The ultimate goal is to ensure people do not drive after consuming cannabis, or any impairing drug.”

He said the government believes “it would not be prudent to delay this initiative in the hopes that the science will provide new or different conclusions. We will continue to invest in and monitor scientific developments in this area and will be responsive to any changes. To that end, setting the levels by regulation [as provided in Bill C-46] would ensure that the levels can be quickly adjusted to respond to scientific developments or to add new drugs.”

Joyal said other “weaknesses” that he sees in relation to Bill C-46 include that the government has not yet approved a roadside oral fluid drug screenerand the need to train thousands of police before cannabis is legalized (the government has moved the date from July 1 to late summer.)

“At this time of the study we are having with this bill, we come to the conclusion that in fact it seems to be creating more problems than it solves,” Joyal remarked. “We will certainly consider some amendments and some [changes] around the timeframe of implementation of various sections of the bill.”

Joyal stressed it is important that police forces are given reasonable time to train their officers, and to ensure that the new equipment to be used for testing for drugs in saliva gives satisfactory results. “The provinces, the municipalities, the police officers have asked us for more time,” he observed. “There is no doubt that postponing is certainly an option that is in the minds of a majority of senators of the committee. … We want to do this very seriously because there are lives of people at stake.”

Like Joyal, Batters said it remains unclear how much support there is in the Senate for Bill C-46 as currently written (it is being sponsored by Independent Sen. Gwen Boniface). In mid-March the Legal and Constitutional Affairs Committee will turn its attention to the cannabis bill (Bill C-45) until May; it will then resume study of Bill C-46 in June.

Batters suggested the government has “to be willing to actually accept some significant amendments on this bill … so that this bill is as good as it can be. … The job of the Senate is sober second thought and making sure we improve legislation.”

The Criminal Lawyers’ Association (CLA), Canadian Civil Liberties Association and Indigenous Bar Association, among other law groups, told the Senate committee last week that authorizing RBT would open the door wider to racial profiling and other police abuses of marginalized groups. With the notable exception of the Canadian Association of Crown Counsel — which praised the proposed introduction of RBT as likely to be “the most effective deterrent and lifesaving aspect of Bill C-46” — many of the law groups at the committee said removing the “reasonable suspicion” threshold from the Criminal Code is likely to viewed by courts as unjustifiably breaching the Charter’s ss. 8 and 9 rights to be free from unreasonable search and seizure and arbitrary detention, and the s. 10(b) right to counsel. They said the resulting litigation and uncertainty will exacerbate delays in a criminal justice system already reeling from the deadline pressures of the Charter right to a speedy trial, as set out by the Supreme Court in R. v. Jordan.

 “This legislation contains so many constitutional defects that, on the ground level, when it hits, in provincial courts across this country, there are going to be constitutional challenges, Charter challenges to multiple sections,” warned Adam Steven Boni on behalf of the Canadian Council of Criminal Defence Lawyers. “Whether it’s on a basis of overbreadth, violation of [Charter] section 8 and section 9, or the minimum mandatory sentencing provisions, we are going to have a very large amount of Charter litigation.”

“Half joking among our colleagues at the defence bar, we see this as a Christmas/Hanukkah present — this litigation will go on for a decade,” echoed the CLA’s representative Michael Edelson, a leading defence counsel.

He stressed RBT’s strong potential to violate the Charter’s s. 10(b) right to counsel. “If we have this situation where people are in a conga line of cars at a roadside stop and every single one of them is going to be randomly tested, you’re going to have a right to counsel problem at this point under 10(b) of the Charter, because the longer the time that passes, the more compelling is the basis for arguing in court that the right to counsel was denied,” Edelson explained.

Source: The Lawyers Daily


Last updated on: 2018-03-27 | Link to this post