Thank you.
The criminal justice section of the Canadian Bar Association is pleased to comment on Bill C-46, which proposes to amend Canada's impaired driving legislation. The section recognizes the importance of road safety and the need to ensure that Canadian law offers effective enforcement mechanisms to address impaired driving. As front-line practitioners, crowns and defence lawyers, the CBA feels that we are very familiar with the operation of the law in this area and the demands impaired driving cases place on the system.
The reality is that litigation of impaired driving consumes significant court resources, and any change should be approached cautiously and only when shown to be necessary. Part 1 of the bill deals with impairment by drugs. Drug-impaired driving is a major concern and with the expected legalization of marijuana, the number of drivers on the road under the influence of marijuana is likely to increase. We appreciate the need to address this reality.
Part 1 of Bill C-46 would amend section 253 of the Criminal Code to provide acceptable levels for drugs, as we now have for alcohol. However, the reality is that it is much more difficult to determine an impairment level for drugs than for alcohol. Most experts will agree that everyone is impaired to some degree by alcohol at .08, but the analysis is not so simple in relation to drugs. In the fall of 2016, I had the opportunity to attend a government-sponsored conference in Quebec City on marijuana-impaired driving. The experts there from both the U.S. and Canada were unanimous that it was impossible to set a limit at which all drivers would be impaired by marijuana. Habitual users will have a higher tolerance and will not be impaired as easily as an occasional user. If the limit was set at five nanograms, a habitual user could fail the test but not necessarily be impaired. In contrast, an occasional user might pass the test but still be quite impaired.
The CBA is an association of lawyers, and unfortunately we cannot offer scientifically valid solutions. What we want to do today, however, is identify this as a problem and say that in order to comply with Canada's Constitution, any proposed limits must link the concentration level to impairment based on proven scientific evidence.
Part 2 of Bill C-46 would replace the existing criminal legislation on impaired driving with an entirely new regime. From the perspective of front-line practitioners, both the crown and defence, this is extremely problematic. In fact, our first recommendation is that part 1 of the bill proceed and part 2 be deleted.
Impaired driving is one of the most extensively litigated areas of criminal law, and every aspect of the existing law has been subject to intensive constitutional scrutiny. The law is now settled. When cases are litigated, the arguments are mainly about the facts of a particular case and how they relate to the established law. We are not arguing on how the law of those sections should be interpreted. If part 2 of Bill C-46 were proclaimed, we would basically be back at square one, arguing interpretation and constitutionality of the new provisions.
The criminal justice system is still struggling to deal with the time limits recently imposed by the Jordan decision of the Supreme Court of Canada. The government has recognized that court efficiencies are at a critical point. The Senate has recently released its report with recommendations to achieve greater efficiencies. We all acknowledge that court delays are a major concern. The CBA's criminal justice section believes that this is not the time to impose legislation that will add significant demands on the system. A complete revision of impaired driving laws, in our opinion, is unnecessary. Apart from the need to address drug impairment with the new technological advances on the market, the existing laws are not deficient. Any deficiencies that we see arising would result more often from a lack of training and resources than from problems with the existing legislation.
I will offer a few examples of our specific concerns in relation to part 2 of Bill C-46.
Proposed subsection 320.14(5) provides a defence to “over 80” if the driver consumed alcohol after driving, had no expectation that they would be required to provide a sample, and the levels were consistent with a level under 80 milligrams at the time of driving.
The aspect of having no expectation that they would be required to provide a sample is something new in legislation. The language “no reasonable expectation”, who will have to prove or disprove that expectation? What is a “reasonable expectation”? Presently, if an individual attempts to skew Breathalyzer results by consuming large amounts of alcohol after driving, we have the option of charging that individual with obstruction of justice. The only addition of this “no reasonable grounds to believe that one would be asked to provide a sample” is to introduce new terminology that would spawn further litigation.
We also feel very strongly about the mandatory roadside testing under proposed subsection 320.27(2). That testing is provided when the officer has a screening device. First and foremost, we have to recognize that it would involve a tremendous input of resources to get these screening devices out there, but the essence of the CBA's objection is that it is random testing. We view this as a violation of section 8 of the charter and believe it would not withstand constitutional challenge.
Advocates of random testing frequently look to Australia and its experience, where there was a significant reduction of fatal and serious crashes following the introduction of random testing, but we have to recognize that Australia does not have a charter of rights. More importantly, when they went to random testing, they went from no testing to random testing. In Canada, when we went from no testing to suspicion-based testing, we also had a reduction. We can't look at the Australian model and assume that we are going to have the same reductions.
The other reality, Ireland, has had some success, but again, Ireland deals with drinking and driving largely under an administrative scheme as opposed to a criminal justice scheme.
When we are looking at mandatory roadside testing, it's important that we recognize those factors and not simply jump aboard other studies and assume that we are going to have the same results with our existing legislation and without going to the administrative regime that has been seen in other countries.
The CBA is also concerned about proposed paragraph 320.28(2)(b), which seems to allow any police officer to completely bypass the drug enforcement officer and make a demand for a bodily substance. Under the existing legislation, if an officer believes a person is impaired, they may demand that the person comply with testing by a properly qualified police officer, a DRE officer.
Under the new legislation, the police officer can do that, or they can bypass the DRE officer directly and make their own demand for a bodily substance. This is, in essence, totally bypassing the need for the trained officer. We have a situation where the DRE officer, who is trained, has to go through tests before he can make a request for bodily samples, yet the untrained officer can just make a request for bodily substances without doing any testing. We view that, again, as a violation, and we believe very strongly that untrained officers should not be permitted to make a demand for a bodily substance. That is far more intrusive than making a demand for breath.
Proposed section 320.29 amends the section dealing with warrants after an accident resulting in death or bodily injury. However, unlike in the existing warrant section, the officer does not need to have any grounds to believe an offence was committed, only that there was an accident, coupled with a suspicion that the person has drugs in their system—not “had” drugs in their system at the time of the accident, but “has” drugs in their system at the time of the request of the warrant. There is no linkage at all to the drugs or the alcohol or the accident. This could basically allow the police to make a request for a warrant in any case where there's a death or bodily harm even where there's no allegation of an offence by the person targeted. Again, there are significant charter implications for such a broad authorization.
Bill C-46 still contains mandatory minimum sentences. We were pleased that the extent that was in Bill C-226 was removed, but mandatory minimum still exists in Bill C-46. The CBA has long opposed mandatory minimum sentences and we continue to do so. The minister has also recognized these as problematic and we support the judicial discretion to determine the appropriate penalty in this case, in individual cases.
Proposed section 320.23 provides that an offender is not subject to mandatory minimums if he or she completes a treatment program, but under Bill C-46, that can only happen with the crown's consent. We believe that it should be the court and not the crown who determines if a treatment program is required. We are also concerned that the lack of available treatment facilities in some jurisdictions could result in inconsistencies in the application of this section.
Thank you for your attention and I welcome any questions.