Tuesday, December 05, 2006

The Impaired Driving Road - Paved With Good Intentions?

Okay, someone has to say it...and since criminal defence lawyers are accustomed to taking unpopular positions, here it goes...

The federal government is going way too far with proposed revisions to the impaired driving sections of the Criminal Code. One can only hope that Parliament will debate parts of Bill C-32 into oblivion, otherwise, the Department of Justice had better prepare for a flood of new litigation claiming violations of the Canadian Charter of Rights and Freedoms.

Bill C-32 - First Reading Version

Impaired by Drug
There are a number of potential Charter issues with respect to the field sobriety tests that officers would be given authority to conduct. The official Department of Justice material speaks of "highly trained" and "expert" officers who will determine when grounds exist to demand bodily fluid samples from a person believed to be driving while impaired by a drug.

A recent news report, however, suggests that these "experts" merely go on a two-week course. Seems awfully cursory training for the officers to have a specialized ability to sort out drug-impaired drivers from the general driving public.

Expert Training

In any event, as these are truly new provisions to Canadian law, I'll hold the criticism for now because no matter how carefully crafted, there will undoubtedly be many Charter challenges to test the boundaries. Time will tell if the government did its homework before putting these provisions forward.

Sadly, if the proposed overhaul of the current alcohol impairment sections is any indicator, the report card is unlikely to be good.

Getting Tougher on Alcohol
The most common notion of "impaired driving" remains impairment by alcohol. While there are some proposed revisions that one would have a tough time arguing against, like increased minimum punishments, there are other proposed amendments that defy legal reasoning.

For example, Bill C-32 proposes the addition of two new alcohol-specific offences: 1) causing an accident that results in bodily harm while you are over 0.08; and 2) causing an accident that results in death while you are over 0.08.

We have always had impaired driving causing bodily harm or death which provides for more severe punishment than a "regular" impaired where it is shown that impairment was a cause of the harm or death. In such a scenario, it is your criminal behavior that directly results in harm to another person, and so there is a legal justification for increased punishment.

There has not previously been an "over 0.08 causing" charge because the number is an arbitrary limit which attracts criminal sanction regardless of whether you are actually putting anyone at risk by being impaired. These new offences are incredibly overbroad because you can receive a far greater criminal punishment due to a completely non-criminal factor...or even possibly a factor that has nothing to do with your behavior.

Consider a driver with a BAC of 0.10 and, because he has not maintained the brakes on his car over the past month, he hits a car in an intersection. Assume the accident was inevitable due to brake failure and that this driver has a high alcohol tolerance and was not impaired. Due to the low impact of the collision and the fact that the other driver is wearing a seatbelt, no injuries occur. The over 0.08 driver could be charged by summary conviction which under Bill C-32 would carry a maximum jail term of 18 months.

Now consider the same driver with the same BAC and the same accident, but this time the other driver is not belted and she crashes her head against the windshield and the result is a serious concussion with major cuts and bruises. Now the charge must proceed by indictment and the driver is subject to a maximum jail term of 10 years (life if the girl were to die). The potential criminal liability is markedly increased in spite of the fact that the actual criminal conduct is identical, the accident was inevitable due to negligence, and was in no way caused by the presence of alcohol.

It is difficult to find fairness in this type of increased punishment without any corresponding increase in moral or legal culpability on the part of the offender.

No More Evidence to the Contrary?
Shockingly, the proposed legislation also purports to, de facto, eliminate any defence to a 0.08 charge that is supported by the results of a breathalyzer or blood analysis. The wording of the section seems to still suggest an "evidence to the contrary" defence, de jure, albeit more stringent than the current law, however...

Under the proposed new provision, an accused must call evidence tending to show both that the approved instrument was malfunctioning or operated improperly and that the concentration of alcohol in the accused's blood would not have exceeded 0.08 at the time of the alleged offence.

This section actually might have passed Charter scrutiny if it were not for the subsequent provision stating that evidence of the accused's amount and rate of alcohol consumption, rate of absorption, and any calculations based thereon cannot be evidence tending to show that the approved instrument was malfunctioning or operated improperly.

So basically, absent smoke coming out of the breathalyzer machine during a test (and the police officer administering the test just pretending not to notice) an accused will be left with no way in which to dispute the presumed normal operation of the instrument. Furthermore, the interplay of these sections leads to an absurd contradiction within a criminal proceeding.

In order to provide evidence tending to show that one's BAC would not have been over 0.08 at the time of the alleged offence, it is necessary to call all of the normal evidence regarding consumption and then have an expert use absorption and elimination rates to come to an opinion of a BAC lower than 0.08 based on that evidence.

If the trial judge accepts the accused's evidence and finds that it "tends to show" that his BAC would not have been over 0.08 at the time of the incident, then logically, the judge must necessarily be prepared to accept that the approved instrument was malfunctioning or operated improperly...BUT...the judge is barred in law from drawing that conclusion.

Since the accused is required to demonstrate both elements, then notwithstanding he has shown his BAC to be below 0.08 at the time of the alleged offence, he has failed in his defence and must be convicted on the basis of the test results.

To allow an accused to be convicted of being over 0.08 in the face of evidence tending to show he or she was not over 0.08 seems to blow the presumption of innocence and the concept of reasonable doubt completely out of the whole trial process.

Now, I don't want to be seen as minimizing the seriousness of impaired driving or the impact it has on its many victims. The fact remains though, that we have a justice system which demands certain fundamental protections in order to ensure that trials are fair...and these protections cannot be trumped no matter how well-intentioned the government.

With all due respect to Bill C-32, rather than conduct unfair trials with near absolute liability on alleged impaired drivers, why not just say zero tolerance...ANY alcohol within 24 hours of driving means a criminal charge. Then all of these nuances about accuracy of approved screening devices and evidence to the contrary simply go away.

Something to think about.