The second theme pertains to the modified offence of driving while impaired to any degree, the new mandatory screening power for police, and the new power allowing the police to take samples of bodily substances on the basis of suspicion alone.
According to the Quebec Bar, the modified offence of driving while impaired to any degree is for all practical purposes a disguised zero-tolerance regime. The notion of impairment to any degree is tantamount to saying that, unless the person is sober while driving a motor vehicle, they can easily be accused of driving while impaired. If the person has consumed even a single glass of wine or one beer, a police officer can stop them and lay charges if they have observed what they deem to be less than perfect driving. This criterion is therefore much too broad and, in our opinion, is clearly excessive as regards the stated objectives of public safety and deterrence. It leaves too much room for subjective opinion of what constitutes impaired ability to drive a motor vehicle.
In this regard, I would like to mention two points made by the Court of Appeal of Quebec. First, the court noted, roughly translated, that:
[...] poor judgment on the part of an automobile driver does not necessarily indicate alcohol impaired driving [...]
The court goes on to state, roughly translated, that:
The criminal offence is not driving while impaired—impairment which can be caused by fatigue, stress, a physical or mental disability, etc.—but rather driving while impaired by the consumption of drugs or alcohol.
Through its criminal law committee, the Quebec Bar, which as you may recall is made up of lawyers as well as crown prosecutors, has expressed concern that such a broad and subjective criterion could lead to a criminal record for an individual, with all the attendant negative life consequences.
Still with regard to clause 320.14 of the bill, the Quebec Bar has reservations about this amendment owing to the period of time during which a person may be accused of this offence. The bar notes further that driving while impaired by drugs or alcohol can be evaluated up to two hours after the person has driven. Once again, we question how proportional this new criterion is as regards the presumption of innocence, in particular, since subclause 320.14(5) significantly reverses the burden of proof.
Moreover, in addition to this new zero-tolerance regime, there are provisions for screening and sampling that are just as worrisome for the rights of accused persons. The bill gives police mandatory screening powers in exercising their power to intercept a vehicle. Clearly, the police officer has full discretion to ask any driver to submit to a breath test.
The Quebec Bar is once again very concerned by the extent of the discretionary power afforded police officers under this new regime. Of course, we take it for granted that police officers receive and will receive the necessary training to manage this formidable discretionary power, but the fact remains that there are still risks of profiling, be it racial or demographic, based for instance on the lifestyle or consumption habits of a certain part of the population.
To properly express our concern, we refer to the Supreme Court of Canada decision in Bain, 1992, which says the following.
Unfortunately it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively. The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control.
If this undertaking applies to the crown, in our opinion it applies equally if not more so to police officers in the field.
Finally, in addition to this power, police officers will also be able to require a blood sample if they have reasonable grounds to believe that the person is driving while impaired to any degree owing to the effects of a drug, therefore even if the driver is nearly sober.
Once again, we are worried about the possible consequences of the exercise of such powers, but also about the consequences of how law enforcement views this amendment. Clearly, driving that deviates to the slightest degree from what the police officer deems to be normal driving could be considered an offence and open the door to the exercise of major and very intrusive sampling powers on the part of the police, as well as, ultimately, charges being laid against persons for conduct that is incompatible with the perception of a criminal offence.
Thank you once again for this opportunity to share our thoughts on Bill C-46. We hope they will be useful to you in your considerations.
We are of course available to take your questions.