It's a pleasure to be here. Thank you for the invitation.
Very briefly, I practise criminal constitutional law and have done so for the past 25 years. I'll try to bring that perspective to bear.
Certainties will arise from the proposed amendments, and that is that roadside criminal investigations take time for police officers to conduct. If a case proceeds with criminal charges, the preparation of disclosure packages occupies a police officer's time. Although the use of administrative sanctions instead of criminal law is the subject of discussion and debate, administrative procedures, such as the administrative drug prohibitions that are used in B.C., allow an officer to be out on the road more quickly compared to criminal law requirements.
Impaired driving charges, with these amendments or without them, will continue to be defended against. Criminal trials take an officer off the road for even more time. The more criminal trials there are and the more complicated they are, the more court time is needed. That, of course, engages the concerns that have been addressed by the Supreme Court of Canada in Jordan.
A further certainty is that changes in law, whether they are good changes or not, will create uncertainty with respect to the state of the law, and there will be litigation. Roadside stops, investigations, and prosecutions do engage constitutional rights, and the proposed amendments obviously can't change that. The constitutional rights that are engaged arise in three areas.
I'm moving a little off my prepared remarks because I was listening carefully to the eloquent speakers who were here before me.
The first situation is roadside. The context, of course, is that driving is a regulated activity. Safety is important. Roadside detentions tend to be brief, but privacy interests exist, and there are going to be concerns about the lawfulness of the initial detention. There is a risk of bias about an improperly exercised discretion. I wish to be clear in saying that. I do not say that there is a widespread tendency toward improper detentions, but whenever there is an opportunity for detention, there is a risk of bias. Also, at roadside there are going to be the issues with respect to reasonable grounds to suspect versus reasonable grounds to believe, which are section 8 charter concerns.
The fair trial process and the right to make full answer in defence is guaranteed by section 7 of the charter. I'll address some of the issues that the amendments propose.
Then there's the sentencing. There have been discussions before with respect to mandatory minimum sentences, whether they'd be effective in offering deterrence and whether they'd be constitutional.
I predict, unsurprisingly, that the amendments, if made, will bring constitutional challenges that will require court resources. There will be uncertainty as the cases go through the appellate systems in different provinces. That might or might not be a bad thing, but it almost certainly will exist.
The questions that I pose are: Is there a sound evidentiary basis upon which to conclude that the proposed amendments will more effectively deter criminal conduct or will measurably improve road safety? Even if road safety might be improved, do the amendments contain provisions that are constitutionally defective?
I now make the following specific observations with respect to the proposed amendments. The language of “impaired” versus the phrase of “impaired to any degree” I predict will give rise to problems. When I say “problems” all I mean is litigation and the uncertainty that arises from it. “Impaired to any degree”, I suggest, imports an uncertainty or vagueness, and it may amount to no threshold at all.
Evidentiary matters with respect to the courtroom process, the proposal that an evaluating officer's opinion would be admissible without the officer's being qualified as an expert, is first, potentially going to be subject to some form of challenge. Second, it is not necessarily going to eliminate court time or make the process any quicker. Even though an officer's opinion may be admissible, although he or she may not be qualified as an expert, there will be inevitable challenges to the weight of the officer's opinion. If the officer's opinion may be challenged on the basis of weight, it is going to be attacked, much as it would be if it were an expert opinion.
Under the heading of proposed section 320.12, “Recognition and declaration”, are the phrases “an approved instrument produces reliable and accurate readings” and “(d) an evaluation conducted by an evaluating officer is a reliable method of determining whether a person...is impaired”. These, I will simply say, in my mind, are curious provisions. It's hard to know what to make of something that is a statutory recognition and declaration. In any event, evidence that may be used to prove guilt and that has a statutory presumption of reliability will give rise to inevitable questions.
Finally, with respect to this, the proposed provision that the amount of alcohol or drug consumed does not constitute evidence that the analysis of blood was not conducted properly some might regard as interesting. Some might regard it as remarkable that evidence of alcohol or drug consumption might somehow be irrelevant to charges that relate to drug or alcohol impairment. I say that those provisions might well be challenged on section 7 grounds.
A challenge to the manner of proof available to the prosecution, or the defences available to a defence, are going to be subject to very different considerations as to, for example, whether a roadside detention is itself unconstitutional or whether it can be saved by section 1.
My comment with respect to delay in sentencing is that this is a very good provision. I would encourage those who have the power to ensure that treatment, which is referred to, is available in rural and smaller jurisdictions. It tends to be something that is available in the city. It is unfortunate if such provision is not available uniformly across Canada.
In the interest of time, those are my opening remarks.
