Irrefutably Guilty? A Brief Overview of the New Impaired Driving Amendments 1 By R.S. Prithipaul 1. With the implementation of Bill C-2 on July 2, 2008, Canada s impaired driving legislation has undergone dramatic revision. Parliament has substantially widened the scope of police powers at the investigative stage as a result of amendments to subsections 254(2) and 254(3) of the Code. These provisions enlarge the ability of the police to carry out alcohol screening and create novel investigative mechanisms for the detection and detention of drugimpaired drivers. The most dramatic modifications are those incorporated in section 258 which effectively eradicate the traditional notion of evidence to the contrary. And, predictably, the government has augmented penalties for both initial and repeat offenders. Section 253 of the Criminal Code Table One 3. The jurisprudence had previously deemed that a person could be impaired by alcohol, a drug, or combination of the two. The new legislation states explicitly in section 253(2) that the combination of alcohol and a drug creates impairment of ability to drive. Section 254 of the Criminal Code Table Two 4. Pre-Bill C-2, section 254 contained coercive mechanisms for the detection, screening, and investigation of alcohol-impaired motorists. The new version of the legislation significantly enlarges those powers and creates an investigative framework for the identification of motorists suspected of driving under the influence of drugs. 5. The new version of section 254(2) contemplates two kinds of screening, physical sobriety testing to detect drugs or alcohol (section 254(2)(a)), the other using an approved screening device in the case of suspected consumption of alcohol (section 254(2)(b)). Those tests must still 1 I am indebted to the remarks of Alan Gold on this subject as contained in the Netletter, Monday, June 30, 2008, Issue 595. Issue 595 as well as subsequent Netletters contain invaluable information and jurisprudential developments on the recent impaired driving amendments and are required reading for the practitioner.
be carried out forthwith, but the overall requirement for immediacy is diluted. This is because the two kinds of screening procedures are premised on the basis of a police officer s mere reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle Manifestly, this provision substantially enlarges the ability of the police to screen motorists and is ripe for constitutional challenge given its interaction with sections 8, 9, 10(a) and 10(b) of the Charter (see para. 8, infra). 6. Section 254(2)(a) envisages a screening procedure for drugs or alcohol that enables a peace officer, by demand, to require a suspect to perform forthwith physical coordination tests prescribed by regulation. These physical coordination tests, depending on their results, may yield the reasonable grounds necessary to believe in impairment by drugs or alcohol. Sobriety tests may be video recorded: section 254(2.1). A helpful primer on standard field sobriety tests is contained in Gold s Netletter, Issue 595. The police may only have resort to a screening test using an approved screening device if they suspect the presence of alcohol in the subject s body: section 254(2)(b). 7. We are all familiar with the requirement for immediacy in the screening of motorists. The Supreme Court of Canada has consistently affirmed that the constitutional validity of the former section 254(2) depends on the immediate performance of approved screening device tests: R. v. Thomsen (1988), 40 C.C.C. (3d) 411 (S.C.C.); R. v. Grant (1991), 67 C.C.C. (3d) 268 (S.C.C.); and R. v. Woods, [2005] 2 S.C.R. No. 205. In Woods, Fish J., writing for a unanimous Supreme Court, wrote at p. 4, paras. 14-15: 14 The constitutional obstacle is no easier for the Crown to overcome. Section 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit as regards to police demand for breath sample, and explicit as to the mandatory response: the driver must provide a breath sample forthwith. 15 Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of sections 8, 9, and 10 of the Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, section 254(2) would not pass constitutional muster. That requirement cannot be expanded to cover the nature and extent of the delay that occurred here. 2
8. It was consistent with the operation of the predecessor legislation that the Crown prove actual operation or care or control of a motor vehicle as a predicate for the making of a screening demand. It was not enough for a peace officer to merely suspect the accused s prior operation or care or control of a vehicle. The officer s suspicion related to the presence of alcohol in the subject s body, but the elements of operation or care or control had to be factually present. 9. Counsel are well advised to pay heed to the remarks of Anderson P.C.J. concerning the need for a case-by-case consideration of whether any particular screening measure constitutes a reasonable limit prescribed by law on the defendant s section 10(b) Charter rights: R. v. Klontz, 2007 ABPC 1283, pp. 6-11, paras. 42-68. Is a declaration of constitutional invalidity required or is it sufficient to argue for example that, in the factual circumstances of the accused s case, section 254(2) did not operate as a limit on the accused s right to counsel? 10. Of course, screening may afford the police with reasonable grounds to believe in the commission of a section 253 offence whether by the ingestion of alcohol or drugs or a combination of both. Pursuant to section 254(3), the police maintain the power to demand breath or blood to detect alcohol for evidential purposes. The writer questions whether the new blood demand provisions contained in section 254(3)(a)(ii) evince a legislative intention to lower the applicable threshold. Previously, a peace officer had to have reasonable and probable grounds to believe that, by reason of any physical condition of the person, (i) the person may be incapable of providing a sample of his breath, or (ii) it would be impracticable to obtain a sample of the person s breath. The current legislation states that a blood demand is authorized when the peace officer has reasonable grounds to believe that, by reason of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath. 11. Drug evaluation testing for evidential, as distinct from screening, purposes is now authorized pursuant to sections 254(3.1), 254(3.2), and 254(3.4). The definitions contained in section 254(1) refer to an evaluating officer[,] a peace officer who is qualified under the regulations to conduct evaluations under subsection 3.1. The Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196 (Appendix B), provide for physical 3
coordination tests, evaluation procedures, and state that an evaluating officer must be a certified drug recognition expert accredited by International Association of Chiefs of Police. The evaluation of a motorist believed to be committing an offence under section 253(1)(a) as a result of the consumption of a drug or a combination of alcohol and a drug is made possible by section 254(3.1). 12. The evaluation process is carried out by demand requiring that the accused submit to an evaluation conducted by an evaluating officer and to accompany the peace officer for that purpose : section 254(3.1). A drug evaluation may be video recorded: section 254(3.2). If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe that the person s ability to operate a motor vehicle is impaired by a drug or a combination of alcohol and a drug, the officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of either oral fluid, urine, or blood: section 254(3.4). Again, the drug evaluation itself would be carried out in accordance with the regulations (Appendix B). 13. What if the drug evaluation process leads to the conclusion that alcohol and not drugs was the source of the accused s impairment? Section 254(3.3) appears to have been drafted with a view to addressing that circumstance. Parliament has provided that an evaluating officer who has reasonable grounds to suspect that the person has alcohol in their body, and if the person was not subjected to an approved screening device test or an evidential breath or blood test to determine the presence of alcohol in the person s body, that officer may demand the provision of a sample of breath that, in the evaluating officer s opinion, will enable a proper analysis to be made by means of an approved instrument. However, approved instrument is defined in section 254(1) as one that enables evidential testing, not screening. The problem is that section 254(3.3) explicitly allows, in effect, for an evidential test on an approved instrument on the basis of the evaluating officer s reasonable grounds to suspect that the person has alcohol in their body, the threshold for a screening demand pursuant to the present section 254(2)(b). Evidential testing should not, according to the terms of section 8 of the Charter, be authorized on the basis of a reasonable suspicion concerning the mere presence of alcohol in the body. 4
14. It is an offence to refuse to comply with any of the demands for alcohol or drug screening or investigation: section 254(5). Section 258 of the Criminal Code Table Four 15. The most radical revision of the former legislative scheme undoubtedly occurs as a result of the new section 258. Section 258(1)(c) now deems breath test results to be conclusive proof of the accused s blood alcohol concentration at the time of testing and at the time of the alleged offence. This evidence can only be challenged by evidence probative of all of the following: (1) The approved instrument was malfunctioning or was operated improperly, (2) The malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused s blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood, and, (3) The concentration of alcohol in the accused s blood would not in fact have exceeded eighty milligrams of alcohol in one hundred milliliters of blood at the time when the offence was alleged to have been committed. 16. The new legislation requires evidence tending to show all of the [above] three things. Section 258(d.01) eliminates traditional evidence to the contrary from a consideration of instrument malfunction or improper operation: (d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused's blood was performed improperly, does not include evidence of (i) the amount of alcohol that the accused consumed, (ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused's body, or (iii) a calculation based on that evidence of what the concentration of alcohol in the accused's blood would have been at the time when the offence was alleged to have been committed; 17. Analogous provisions have been enacted with respect to blood samples: section 258(1)(d). Significantly, the provisions affording the defence access to a sample of breath taken at the time of testing remain unproclaimed: sections 258(1)(c)(i) and 258(1)(g)(iii)(A). Section 258(d.1) appears to address itself to bolus drinking or post-offence drinking scenarios. This 5
provision requires evidence that the accused s actual blood alcohol level was under the legal limit at the material time, and that the accused s blood alcohol concentration at the time of testing is consistent with the Crown s test results. The intent of the legislation is clearly to abolish the well-entrenched Carter type of defence (after R. v. Carter, [1985] O.J. No. 1390 (C.A.) (Q.L.)) which, for well over three decades, has enabled the accused to raise a reasonable doubt as to guilt by tendering evidence of consumption coupled with expert testimony in an effort to displace the presumptive accuracy of the Crown s test results. 18. The Crown in this province has been arguing on a case-by-case basis that the new legislation applies retroactively. Such an interpretation, if accepted, would defeat the vast majority of evidence to the contrary defences. Case law on retrospectivity emerges on virtually a daily basis from trial courts across the country. In this province, Provincial Court Judges E.A. Johnson and H.W.A. Fuller (and others) have concluded that Bill C-2 does not operate retroactively: R. v. Lungal, 2008 ABPC 282 and R. v. Houde, 2008 ABPC 280. See the attached papers at Appendix C for a discussion of the distinctions between procedural and substantive enactments and the law concerning retrospectively, generally. 19. My written brief on retrospectivity addresses itself to the question of whether the current state of the law respecting disclosure is compatible with Bill C-2. In cases such as R. v. Keirsted, [2004] A.J. No. 754 (Q.B.) (Q.L.), R. v. Coopsammy, [2008] A.J. No. 478 (Q.B.)(Q.L.), and R. v. Scurr, 2008 ABQB 127, the Crown and the Edmonton Police Service have successfully argued that attempts to obtain disclosure of certain types of calibration records would have to follow the procedures outlined in R. v. O Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.). The correctness of that line of authority will need to be questioned under the regime of Bill C-2. Defence counsel must consider how to obtain access to the kind of material section 258 now renders probative. How must we frame requests and applications for information concerning possible malfunction and improper operation of approved instruments? 20. The ultimate issue, of course, is whether section 258(1) will survive constitutional scrutiny by virtue of its deletion of conventional evidence to the contrary. Arguably, the pre-bill C-2 regime depended for its constitution validity on the ability of the accused to adduce Carter- 6
type evidence: R. v. Cvitkovic, [1998] O.J. No. 50 (Prov. Ct.); R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.). 21. In this writer s view, much will depend on how the appellate courts characterize the traditional evidence to the contrary defence. If evidence to the contrary is in essence a true substantive defence (as I believe it to be), akin to any accused person s attempt to deny an essential element of a criminal allegation, then a ruling that the current section 258 offends the Charter should be attainable. What Parliament giveth, Parliament can take away, but only up to a point. Parliament cannot, the argument would go, deny the accused access to a sample of his or her breath taken at the time of testing and, simultaneously, deprive that person of the opportunity to defend himself or herself by attempting to challenge the accuracy of the Crown s evidential test results. 22. It seems likely, based on existing case law, that the courts will conclude that the new version of section 258(1) will be found to contravene sections 7 and 11(d) of the Charter. The ultimate issue is whether the new provisions will be saved under section 1. The defence will have to argue that new enactments fail to meet the proportionality test defined in R. v. Oakes (1986), 24 C.C.C. (3d) 321 (S.C.C.). Mr. Alan Gold, in the June 30, 2008, edition of the Netletter (Issue 595) writes of the Oakes considerations in these terms: The second part of the s. 1 analysis, the "proportionality test" involves three determinations: that the measure adopted is rationally connected to the objective (rational connection); that the measure impair as little as possible the right or freedom in question (minimal impairment); and that there be proportionality between the effects of the measure and the objective. It is in the latter elements of the proportionality test that the new presumptions run aground on unconstitutionality. In Phillips [supra] in upholding the predecessor presumption the Court's response to the argument that innocents would be convicted (thereby negating minimal impairment and proportionality) was: It is, of course, open to an accessed to give evidence of drinking shortly before the breathalyser test together with appropriate scientific evidence and thus establish that the BAC shown by the breathalyser test was higher than at the time of the alleged driving offence. This would be "evidence to the contrary" which could rebut the presumption under s. 241(1)(c). The fact is that under the new presumptions this will be insufficient and such innocent accused will be convicted without further evidence. 7
To return to the final issue, whether the presumptions are in fact constitutional because there is in fact no possibility of innocent accused as described above, the logically possible evidentiary situations are as follows: it is scientifically impossible for an accused to be within the legal limit of '.08' and yet produce inconsistent test readings thereafter; it is scientifically impossible for the machine to malfunction and yet produce test readings, or it is scientifically impossible for the machine to be operated improperly and yet produce test readings. Clearly the government in passing this legislation believes these claims. To secure a decision of constitutionality they will have to prove these propositions by admissible evidence. One point is immediately obvious: if these claims are true why does the legislation reference malfunctioning and improper operation? Why not just make the presumption absolute in its terms and defend its constitutionality by proving the same propositions in defence of a presumption worded in the absolute. The very us of the wording in the legislation suggests these are real phenomena. If so, is it fair to assume an innocent accused will always be able to access evidence of malfunctioning or improper operation? If not, these presumptions will be convicting "innocent" people, something constitutional presumptions are not allowed to do. Clearly interesting cases lie ahead. Section 255 of the Criminal Code Table Three 23. Bill C-2 manifests the depressing tendency typical of new criminal legislation to punish ever more harshly. The fine for an initial conviction cannot be less than $1,000.00, thirty (30) days is the minimum term of imprisonment for a second offence, and third and subsequent offences are punishable by not less than one hundred and twenty (120) days. The maximum period of incarceration, when the Crown proceeds by summary conviction, rises to eighteen (18) months from six (6): section 255(1). 24. Previously, sections 255(2) and 255(3) proscribed impaired driving causing bodily harm and death, respectively. While Bill C-2 preserves those offences, it expands the scope of liability by variously combining bodily harm or death with the elements of care or control, having an excessive blood-alcohol content, and even refusal to comply with a section 254 demand. It is now criminal to have committed a section 253(1)(a) offence whether one operates or has care or control of a motor vehicle and where bodily harm or death are caused: section 255(2). The new legislation creates entirely novel infractions of committing an offence under section 253(1)(b) (ie. driving or having care or control while over 80 mg%), and causing an accident resulting in bodily harm to another person : section 255(2.1). Pursuant to section 255(2.2), it is punishable 8
to have failed or refused to have complied with a demand made under section 254 if the offender knows or ought to know that their operation of the motor vehicle or their care or control of the motor vehicle caused an accident resulting in bodily harm to another person. Analogous offences where the outcome is death are defined in sections 255(3), 255(3.1), and 255(3.2). All of these crimes involving bodily harm or death are purely indictable. 25. It appears that conditional sentences are no longer available in cases involving bodily harm: section 742.1 of the Code. 9