Enter into the unknown [at least for now] – driving while impaired, etc…..

My emails and texts have been buzzing since late last year – present. As always, this is not legal advice (I am no lawyer by any stretch), but information from a fellow officer that attempts to educate law enforcement and interpret the muddled law as it is. I suspect this will not be my last post on this topic, but for now, let’s get to it….

As background, in 1921, Parliament made it an offence to drive while intoxicated. In 1925, it criminalized driving while intoxicated by narcotics. Dangerous driving has also been an offence since 1938. In 1951, Parliament responded to the concern that some courts were only convicting if the driver was “falling down drunk” by adding the offence of driving while impaired by alcohol. Major changes were made to the impaired driving laws in 1969. Parliament repealed the offence of driving while intoxicated, while keeping the offence of driving while impaired. At the same time, it made it an offence to drive with a Blood Alcohol Concentration (BAC) over 80 mg of alcohol per 100 ml of blood (over 80) and created an offence of refusing to provide a breath sample. Parliament provided for the BAC to be determined by an “approved instrument” (AI). In 1979, Parliament also authorized the use of an “approved screening device” (ASD) at the roadside to facilitate the detection of impaired drivers. It is a criminal offence to refuse to provide an ASD or AI sample. Parliament has also amended the Criminal Code over the years to respond to certain court decisions. It has also passed legislation to deter the dangers caused by street racing, fleeing the police and leaving the scene of an accident. It is also a criminal offence to drive while prohibited from doing so as a result of a Criminal Code conviction. In 2008, Parliament made more major changes to address drug-impaired driving, creating the legal framework for the Drug Recognition and Evaluation (DRE) Program. There is more, but you get the point….

Fast forward, 2018-19: Mandatory alcohol screening – under the old regime, officers could not require a driver to comply with any roadside test unless we had reasonable grounds to suspect the driver has alcohol or drugs in their body. With reasonable suspicion, we could demand that the driver either provide a breath sample on an approved screening device (ASD) (for alcohol) or perform standard field sobriety tests (for drugs or alcohol). Now, section 320.27(2)) CC allows an officer to require a driver to provide a breath sample on an ASD if the officer has an ASD close at hand. Unlike the old framework, this provision does not require that the officer form a reasonable suspicion that the driver has alcohol in his or her body. Reasonable suspicion will still be required where the ASD is not at hand, or the driver is no longer operating or has care or control of the motor vehicle (the words… “require the person who is operating a motor vehicle”…was purposeful). Mandatory alcohol screening will likely occur mainly, but not exclusively, at organized sobriety checkpoints. Quite simply, a police officer who has stopped a driver lawfully, for example to investigate a speeding violation, would be able to demand that the driver provide an ASD sample without needing to have reasonable suspicion that the driver has alcohol in the body. The term “conveyance” is now used to refer to any motor vehicle, vessel, aircraft or railway equipment, so it is important to note that mandatory alcohol screening only applies to motor vehicles. As well, the definition of “operate” has also been amended to incorporate the concept of “care or control”. A “fail” does not constitute an offence, but is simply a step that could lead to further testing on an Approved Instrument (AI, or “breathalyzer”), typically at a police station.

Some commentators and members of the public mistakenly consider this to be a new power to stop vehicles at random. In fact, random stopping has been considered on three occasions by the Supreme Court of Canada. The first case was R. v. Dedman [1985] 2 S.C.R. 2 where the Court found that random stops were justified at common law because of the importance of deterring impaired driving, the necessity of random stops to effective detection, and the fact that driving is already subject to regulation and control in the interests of safety. The second case was R. v. Hufsky [1988] 1 S.C.R. 621. It dealt with a random stop at a checkpoint pursuant to the Ontario Highway Traffic Act. The Supreme Court found that, in view of the importance of highway safety and the role to be played in relation to it by a random stop, the limit on the right not to be arbitrarily detained is a reasonable one that is demonstrably justified in a free and democratic society. The third case was R. v. Ladouceur [1990] 1 S.C.R. 1257. In that case, the stop was by a roving patrol car and not at an organized checkstop. The Supreme Court held that reducing the carnage on the highways caused by impaired drivers was a pressing and substantial concern which the government was properly addressing through random stops. As the Court noted, “stopping vehicles is the only way of checking a driver’s licence and insurance, the mechanical fitness of a vehicle, and the sobriety of the driver.”

Another change in this area is operating with a BAC equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours of driving. The change in the law isn’t that we can demand breath samples from drivers at home or in bars because we could do that under the old regime. The change is that now those breath samples can now afford evidence of an offence, where before they could not. The intent here, I believe, is to eliminate the bolus drinking defence, by changing the timeframe within which the offence can be committed. Also, it significantly limits the intervening drink defence. The bolus drinking defence arises when the driver claims to have consumed a large amount of alcohol just before or while driving. Although they admit that their BAC was “over 80” at the time of testing, they claim that the alcohol was still being absorbed and, at the time of driving, they were not “over 80”. The formulation also limits the intervening drink defence which arises when a driver drinks after driving but before they provide a breath sample. This defence often arises where there has been a serious collision and the driver claims to have been settling their nerves. This undermines the integrity of the justice system as it rewards conduct specifically aimed at frustrating the breath testing process. The only situation in which a driver could rely on intervening consumption to avoid a conviction is captured in subsection 320.14(5). The offence is not made out if all of the following conditions are met:

  • The person consumed alcohol after ceasing to operate the conveyance;
  • The person had no reasonable expectation that they would be required to provide a sample of breath or blood; and,
  • Their alcohol consumption is consistent with their BAC at the time the samples were taken and with their having had a BAC of less than 80 at the time of operation.

Situations in which a person would have “a reasonable expectation” that they would be required to provide a sample would be decided on a case-by-case basis by the courts. However, a person involved in a serious collision causing death, bodily harm, or major damage should reasonably expect to be required to provide a sample. I believe we will see alot of “unconstitutional” arguments in this area because, for example, if a driver could convince a court that they drove home, or to a bar, sober and then drank, never expecting to be subjected to a breath demand, and that after getting home he/she consumed a quantity of alcohol that they were not carefully tracking, the court may still find them guilty because without knowing how much alcohol they consumed, the person may be unable to show that the consumption matched up with their breath readings.

Further still, the new section 320.31(9)) CC provides that a statement made by a person to a police officer that is compelled under a provincial Act (e.g. file an accident report, admission of driving, etc.) is admissible for the purpose of justifying a roadside screening demand authorized by the Criminal Code. This has the potential to engage the protection under section 7 of the Charter against self-incrimination.

The new section 320.29 CC provides that a justice may issue a warrant to obtain a blood sample from a person where the justice is satisfied that:
– There are reasonable grounds to believe that the person was involved in an accident causing bodily harm or death within the previous 8 hours;
– There are reasonable grounds to suspect that there is alcohol or a drug in the person’s body; and
– A medical practitioner is of the opinion that the person is incapable of consent and that the taking of the sample would not endanger the person’s health.

As well, new subsection 320.31(4) CC provides that, where testing on an AI is performed more than two hours after driving, BAC at the time of the offence (i.e. within the two-hour window) is conclusively deemed to be equal to the BAC at the time of testing plus 5 mg/100 ml for every complete 30 minutes between the expiry of the two hour period and the time of testing. The onus remains on the Crown to prove the offence beyond a reasonable doubt, by combining the scientifically valid AI test with well-established scientific knowledge on the metabolism of alcohol.

There are many other changes, but I think this post went on long enough. This area of law is new: to us, the lawyers, and the courts, so time will tell once the litigations begin where we will end up. The letter of the law versus the spirit of the law will come to bear. When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the “letter”) of the law, but not necessarily the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not necessarily adhering to the literal wording…. interesting times indeed for us officers that love to delve into the abyss that is law!

Let’s not become ‘lazy’ or let our investigative skills suffer in the meantime…. we can be wrong in our beliefs and that is a cold comfort to a morally innocent person left without a defence under these new laws… the courts will hopefully work it out sooner than later to give us some guidance and certainty in this new area of law.

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Filed under Impaired Driving, Recent Case Law

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