Nova Scotia Fall Criminal Law Conference Bill C-2: Highlights and Issues Halifax, Nova Scotia November 21, 2008 Philip Perlmutter Counsel - Crown Law Office Criminal Overview: This paper highlights some of the developments and emerging issues since the coming-into-force of Bill C-2 on July 2, 2008. In very brief compass, it summarizes some of the most significant changes to the investigation and prosecution of those suspected of impaired driving. Bill C-2: Some of the Important Changes: The impaired driving related amendments in Bill C-2 fall broadly into four categories: (a) Police Investigatory Powers; (b) Procedural/Evidentiary Changes; (c) New Offences and (d) Increased Penalties. (a) Police Investigatory Powers: The new statutory scheme provides for a series of investigative stages in cases of impairment by drugs, alcohol or both. At the roadside the investigating officer may, on reasonable suspicion, screen for alcohol by means of sobriety tests and an approved screening device (ASD) demand, or just by sobriety tests in the case of drugs alone. Once the officer acquires reasonable grounds to be believe the driver has, within the preceding three hours, operated or had care/control of a motor vehicle while impaired by a drug or combination of alcohol and drugs, a demand may be made for an evaluation by a drug recognition expert ( evaluating officer ). Eventually the evaluating officer may demand urine, saliva or blood samples, to test for the presence of drugs. The amendments are described below. Under the amendments to s. 254(2) of the Code physical co-ordination tests and ASD samples may now be demanded on suspicion of alcohol in the body, and Philip Perlmutter Crown Counsel, Crown Law Office Criminal, Ministry of the Attorney General Ontario, 2008. This paper may not be distributed in whole or in part, in hard copy or in electronic format without the author s permission. The views expressed in this paper are solely those of the author and do not necessarily represent those of the Ministry of the Attorney General of Ontario. Thanks to my colleague, James Palangio who co-authored papers on which I relied.
only the former on suspicion of drugs alone. The ASD demand may now be made within three hours of the suspected operation or care/control and in addition drivers may now be required to perform roadside physical co-ordination tests (also known as SFST standard field sobriety tests), which may be video-taped. Under the amendments, in addition to the reasonable suspicion of alcohol in the body when the demand is made, the officer must also suspect that the driving or care/control occurred within the preceding three hours. As a result, officers may now make the demand after the motorist has ceased driving and is no longer still in care/control. Courts need not resort to the doctrine of past signification to uphold the validity of the demand. Under newly enacted s. 254(3.1), where the investigating officer s belief (including the results of the co-ordination tests/asd results) rises to the threshold of reasonable/probable grounds that the motorist has committed the offence of operation or care/control while impaired by a drug alone or alcohol and a drug within the preceding three hours, s/he may require the person to submit to an evaluation by a drug recognition evaluator (DRE), which may also be videotaped. [ss. (3.2)] Under newly enacted ss.(3.3) where the DRE reasonably suspects the motorist has alcohol in their body, they may demand a breath (approved instrument) test, if no ASD demand or blood demand had been previously made. Under newly enacted ss. (3.4) if, on completion of the DRE evaluation, the officer has reasonable grounds to believe the person s ability to drive is impaired by a drug or combination of alcohol and a drug, s/he may demand a sample of blood, urine or saliva to determine whether there is a drug in their body. Refusal to comply with any of the demands is an offence. (b) Procedural/Evidentiary Changes: Section 258(1)(a) has been amended so that the statutory presumption of care/control when found in the driver s seat now applies to the refusal offences, in addition to s. 253 offences. The most significant procedural changes redefine evidence to the contrary. While the admissibility of traditional Carter evidence (i.e. expert calculation of a blood alcohol concentration (BAC) under 80 at the time of offence, based on the accused s evidence of consumption) has been preserved, there are new limits imposed on its use, depending on whether the approved instrument results are being challenged. The presumption of accuracy, arising from the combined operation of s. 258(1)(c) and s. 25 of the Interpretation Act has been effectively eliminated. Here, in summary, is how the amendments are intended to operate. 2
Under s. 258(1)(c) as amended, where breath samples are taken in compliance with the subsection, regardless of whether the results are tendered by certificate or the technician viva voce, the lowest result is deemed to be conclusive proof of the BAC at the time of offence, unless the evidence (or paucity of evidence) raises a reasonable doubt that: (a) the approved instrument was operated incorrectly or suffered from a malfunction that, (b) produced a result exceeding the legal limit and (c) that the accused s BAC at the time of offence was under 80. Under newly enacted s. 258(d.01), the traditional Carter consumption/expert evidence may not be considered in establishing the criteria under (a) error/malfunction and/or (b) that the BAC exceeded the limit as a result. It remains admissible as evidence of (c) the actual BAC at the time of offence. Under amended s. 258(1)(d.1), test results exceeding the limit are proof that the BAC was the same at the time of offence, unless the evidence tends to show that the accused s consumption of alcohol was consistent with both a lawful BAC at the time of offence and the test results. Put another way, where the test results can be reconciled with the consumption evidence (on account of unabsorbed alcohol), the presumption is rebutted. This provision preserves the bolus and post offence drinking defences, which continue to operate as before. It should be noted that the amendments define what the evidence must show, not the evidence itself, necessary to rebut the presumptions. What will be required depends on whether the accuracy of the results is challenged. Use of the term conclusive proof in s. 258(1)(c) does not change or elevate the requisite threshold; it remains a reasonable doubt standard. That phrase was used solely to render inoperative s. 25 of the Interpretation Act and no more. Otherwise the former Carter defence would have continued to apply, but in certificate cases only. (c) New Offences: The most notable new offences include: (a) Causing an accident resulting in bodily harm or death while committing an over 80 offence; (b) Failure/refusal to provide a sample, knowing/ought to have known that the operation of their motor vehicle caused an accident resulting in bodily harm or death. (d) Increased Penalties: The increased penalties include raising the minimum mandatory penalties to a fine of $1000, 30 days imprisonment and 120 days imprisonment, respectively. The maximum penalty on summary conviction has been increased to 18 months imprisonment. The amendments resolve any ambiguity that convictions for impaired bodily/harm and death are deemed to be prior/subsequent convictions for impaired/over 80 simpliciter and refusals. 3
Issues arising from Bill C-2: A number of questions have arisen regarding the operation of the amendments, including: (a) Do they apply retrospectively? (b) What additional disclosure may be required if they do? (c) Do the provisions violate ss. 7,11(d) and 15 of the Charter? (d) Procedurally, how should these issues be dealt with at trial? As these issues are too broad to adequately address in this paper, here are some very brief suggested answers. (a) Retrospectivity: Absent any appellate authority as yet, it may be said that the trial judges in Ontario have overwhelmingly held that the amendments are evidentiary and procedural and accordingly operate retrospectively, even where the trial commenced before July 2. The Courts in British Columbia have swung in favour of retrospectivity; in Saskatchewan there is one jury trial ruling that they so operate and the few Alberta decisions so far have all ruled the amendments operate prospectively. The Quebec situation is a little unusual, particularly on account of a letter, from the Quebec DPP, which has been proffered as evidence of an agreement by the Province of Quebec that the amendments apply prospectively. Based on this document, some are advancing an inequality argument under s. 15 of the Charter. Not only is the letter inadmissible hearsay, but also the argument is predicated on a misconception of how prosecutors operate in Quebec. Many municipalities, including Quebec City and Montreal, have their own prosecutorial services. The DPP does not bind municipal prosecutors unless it issues a directive. The letter relied upon explicitly denies being a directive and in Montreal at least, prosecutors have already argued that the provisions apply retrospectively. In a recent ruling a Montreal Municipal Court rejected that argument, but another decision remains under reserve. Those decisions belie any uniform approach or agreement by the Province of Quebec regarding the interpretation of the amendments. (b) Is the defence entitled to additional disclosure? It is well settled that disputed requests for disclosure must be resolved by way of a Charter application. While as a general principle the prosecution must justify withholding disclosure said to be clearly irrelevant, it is submitted that the applicant must do more than simply request the additional disclosure to put the Crown to its case. As in section 8 Charter applications challenging the grounds for the breath demand where the applicant must first establish the warrantless seizure as a threshold issue, it is submitted the applicant must likewise provide 4
some basis of potential relevance before the Crown is called upon to justify withholding the requested disclosure. In the context of Bill C-2, some explanation must first be provided of how the historical information sought (e.g. any repair or maintenance logs) may assist in determining whether the approved instrument operated properly some months or years later. It is submitted that the connection between the historical information and the subsequent operation of the instrument is not obvious and the bald assertion of an expert that such material is relevant, without more, is not sufficient to trigger the Crown s disclosure obligation. Recently in Mosseau, 1 after hearing expert evidence, Justice Morneau rejected an application for production of maintenance logs, ADAMS/COBRA data and the source code, finding they were irrelevant because they could provide no insight into the reliability or proper working order of the instrument on a later date. On the evidence taken, the Crown agreed to provide the requested alcohol standard log, as it related to the date on which the standard was last changed prior to the subject tests. In the pre-c-2 summary conviction appeal decision in Harrington, 2 an acquittal based in part on the crown s failure to provide disclosure of the maintenance logs was reversed. The appeal judge held that the caselaw supported the apparent lack of probative link between any other time the instrument is functioning and this case at hand. (c) Constitutionality: Applications alleging the amendments violate ss. 7 and 11(d) are just reaching the courts in Ontario. Briefly stated, the Crown s argument is that the new provisions were intended to permit only scientifically valid defences. These include bolus and post-offence drinking, as well as defences based on the improper operation/malfunction of the approved instrument. The Carter defence alone is not scientifically sufficient to successfully attack the accuracy of the readings obtained on an approved instrument. In that sense, there is no air of reality to a defence based on the improper operation of the approved instrument founded solely on the evidence of an accused s consumption pattern. There must be something more. Absent evidence of improper operation/malfunction of the approved instrument and evidence that it resulted in an erroneous over 80 reading, there is no scientifically valid basis upon which a trier of fact may acquit the accused. (d) Procedural Considerations: To some extent the procedural constraints in Ontario are set out in s. 109 of the Courts of Justice Act and the Rules of the various courts. As the provincial (lower) courts are prohibited from making broad declarations of constitutional invalidity and restricted to case specific rulings, it is submitted that such applications must be deferred until the end of the trial, and then argued only where necessary to resolve the case, for several reasons. First, an acquittal may otherwise occur on the merits, or based on successful 1 R. v. Mosseau (22 October 2008), Walkerton 07-785 (Ont. C.J.) 2 R. v. Harrington, [2008] O.J. No. 3888 (S.C.J.) 8, 9 5
applications to exclude evidence under s. 24(2) of the Charter for violation of ss. 8, 9 or 10. Similarly, if the accused s consumption evidence is rejected, s/he would be unable to rebut the presumptions under either version of s. 258, pre or post C-2. In such cases the constitutionality of the amendments does not arise as an issue and need not be decided. Finally, there is abundant authority that such challenges cannot be considered without a factual foundation. Unless the application is deferred until the end of the trial, the Court will hear evidence whose relevance has not yet been determined and may not be required at all. In summary, based on the foregoing, it is submitted that trials where these various issues are raised, should proceed on the following basis: 1. Retrospectivity should be argued and determined first. 2. If the provisions are ruled retrospective, any case-specific disclosure applications should be dealt with next, including the calling of evidence where necessary. 3. The trial proper should be heard, including any case-specific Charter applications for the exclusion of evidence. 4. The constitutional challenge should not be heard unless, at the conclusion of the trial there has been no acquittal and the consumption evidence has not been rejected. Any additional evidence required should be taken at that time. November 17, 2008 6