RSS FeedNew Alcohol Regulations Target Binge Drinking in Alberta
Amendments to the Alberta Gaming and Liquor Commission policies come into effect today.
The new rules, which are explicitly aimed at curbing binge drinking, will create a number of changes to how alcohol is served in licenced establishments throughout the province.
As of today, there will be new minimum prices established for booze:
- Spirits: $2.75 per ounce
- Wine: $0.35 per ounce (works out to $1.75/glass)
- Draught beer: $0.16 per ounce (works out to $3.20/pint)
- Canned/Bottled Beer and coolers: $2.75 per 12-ounce bottle or can
These minimum prices will eliminate cheap drink specials being offered by bars that the Alberta government says contribute to irresponsible drinking.
In addition to minimum drink prices, limits will be imposed on happy hours. Bars will not be allowed to sell drinks for less than their regular price after 8pm. Of course, at no time will the bar be allowed to reduce its price for alcohol below the established minimums.
Perhaps most significantly of all, the rules will place limits on how much patrons will be allowed to purchase before last call. Bars will not be allowed to sell or serve more than one bottle of beer or two ounces of liquor to a patron after 1 a.m.
Despite the potential effect on revenues, representatives of the affected industry are getting behind the new rules. This is because of the annoying habit of drunk people creating disturbances inside and outside of their establishments, which pose a threat to employees, patrons, and the general public.
The CBC News quotes Mike Shimka, vice-president of the Alberta Hotel and Lodging Association, as saying:
“These changes have great potential to reduce the public order problems associated with binge drinking … Most of us would never guzzle a tray full of cheap highballs just before closing time, but many of us have shared a sidewalk with someone who has. These new changes should make closing times outside bars a lot more peaceful.”
The CBC says that impetus for the new limits on alcohol consumption in bars came after two police officers in Edmonton were attacked several months ago while trying to break up a fight outside a bar.
Man Busted for Impaired Operation of a Riding Mower
Last month, I discussed the potential criminal liability for the impaired operation of a motorized wheelchair in Canada.
On the topic of drunken care and control of non-traditional motor vehicles, the Grand Rapids Press reports the story of a Michigan man caught operating a riding lawnmower with a blood alcohol level of 0.441 percent. That level is over 5 times the legal limit in Michigan - 0.08. It’s also enough to put most casual drinkers into a coma.
Witnesses told police that Earhart earlier appeared to be slumped over the wheel of the mower as it went in circles in the intersection. He appeared to regain control at one point, but passed out again and was thrown to the ground. The mower continued until it struck a tree and lawn ornament. A witness shut off the engine.
The man has been criminally charged with drunk driving.
While this case may sound pretty funny, it’s obvious that the impaired operation of a riding mower in an intersection could easily have led to serious injury or death.
By the way, the man would have been criminally liable in Canada, too. While many people may like to have a few beers before mowing the lawn on a fine Sunday morning, operating a riding mower while impaired is an offence under section 253 of the Criminal Code of Canada.
Don’t drink and drive, kids!
Problems with New Impaired Driving Legislation
As part of my series on the Tackling Violent Crime Act, I’d like to discuss the new changes to the drunk driving provisions of the Criminal Code.
The need for reform
To begin, the extent of the drunk driving problem is put into perspective when the latest statistics (from 2005) show that there have been over 1,200 impaired-driving related fatalities across Canada. According to Professor Robert Solomon, a law professor at the University of Western Ontario and a representative of MADD Canada, drunk driving is “the No. 1 criminal cause of death in this country.” And that’s to say nothing of non-fatal injuries and property damage caused by people deciding to get behind the wheel when they’ve had too many to drink.
Thus, a significant number of amendments in the new legislation deal with impaired driving. The perception (and indeed, probably the reality) was that a lot of drunk drivers were using legal loopholes to escape convictions. As one defence lawyer, a specialist in impaired driving cases (who shall remain nameless), once told me:
“drunk driving is one of the few offences in the Criminal Code where you really can just throw a lot of money at the problem and have it go away. A good lawyer can nearly always find some screw-up on the part of the cops in order to get their client off.”
Unlike most other crimes, drunk driving prosecutions typically rest on a single piece of evidence: the breathalyzer test results. The tests basically have to be perfect; they are challenged if the machine isn’t correctly calibrated, if the operator wasn’t specifically trained for them, and so on. The slightest irregularity can be fatal to the prosecution. These tests could also be challenged by other evidence tending to suggest that the machine’s results were wrong.
Acquittals were also often the result of Charter breaches on the part of the police. Breath test evidence has been routinely excluded if an accused was not properly informed of the reasons for their detention under section 10(a) of the Charter or their right to counsel under section 10(b), for example.
Paul Moreau, a criminal lawyer in Edmonton, explains that:
“impaired driving is a very technical type of offense. The police are required to do certain things in a certain order within a certain time frame. Certain documents are required and they have to be filled out correctly. Any part of the process that is done incorrectly may provide a defense to the person charged with that crime. So part of my function is to analyze what the police have done and see whether they have done it correctly. If they have not, then the person may very well have a good defense.”
The public perception is that these acquittals are based on trivial technicalities. Others argue that protection of our constitutional rights demands high scrutiny of police action. Recently, the Ontario Court of Appeal has said that:
“Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill - as it was in this case - the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.”
(R. v. Nguyen, 2008 ONCA 49, at para. 21)
The government has the unenviable challenge of balancing the need to protect the public from drunk drivers and the need to defend civil liberties. Consistent with their purpose as the guardian of our rights, Canadian courts have been strictly interpreting our drunk driving legislation in favour of civil liberties, even when it has led to seemingly absurd outcomes.
In a high-profile case last month, the Ontario Court of Appeal upheld Margaret Trudeau’s acquittal on a drunk driving charge. Ms. Trudeau was found to be driving with a blood alcohol level of 0.107. She was acquitted on the grounds that her rights were violated when she was told that no one answered the phone when the police placed a call to her lawyer. Instead, the police should have told her that an answering machine had picked up the call. Ultimately, Trudeau did manage to contact a lawyer, but it was not her first pick.
Trudeau later publicly stated that:
“I shouldn’t have got off. I was over the limit…”
Statements like this have done nothing to allay the public’s concerns about drunk driving in the criminal justice system.
The truth is that there is actually a high conviction rate for impaired driving. Statistics Canada’s numbers for 2005/06 show that of 43,444 decided impaired driving cases, 33,983 resulted in a conviction. That is a 78% conviction rate - the highest rate for any criminal offence category studied by StatsCan. However, the public perception does not accord with these figures. A poll of over 2000 Canadians found that:
“most respondents didn’t think our courts make drunk driving charges stick. One in four thought less than 25 per cent of charges result in convictions. Only one in 10 correctly answered that over 75 per cent of charges result in convictions.”
Regardless of the disparity between the public perception of conviction rates and the actual conviction rate, the reality is that many drivers, exemplified by Margaret Trudeau, who were most definitely drunk behind the wheel have been going free. This was a pressing problem and legal reform was necessary to address it.
I take issue, however, with the extent of those changes. I think the government has gone too far in abrogating civil rights in favour of cracking down on drunk driving. Indeed, I think that many of the new Criminal Code provisions will be successfully challenged under the constitution.
Why bother cautioning the accused?
Take the following example:
“the result of an analysis of a sample of the accused’s breath, blood, urine or other bodily substance - other than a sample taken under subsection 254(3), (3.3) or (3.4) - may be admitted in evidence even if the accused was not warned before they gave the sample that they need not give the sample or that the result of the analysis of the sample might be used in evidence;”
(Criminal Code, s. 258(1)(b), as amended)
Previously, an accused could argue that they were not properly cautioned before taking the breathalyzer test, and thereby have the evidence excluded. The correct solution to this problem was a simple one: train the officers to give a proper caution! Instead, the government seems to have decided that one’s rights are unimportant in the context of drunk driving. Since the police can now get away with not cautioning the accused, we can expect that they’ll simply never give an appropriate warning; why bother?
Expanding the scope of police powers
Another example of the Criminal Code amendments:
“If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to [accompany the officer for sobriety testing and/or breath testing].
(Criminal Code, s. 254(2), as amended)
The addition of the “preceding three hours” requirement now means that a police officer can basically detain you at random and require you to provide a breath sample. All the officer needs is a reasonable suspicion that you’ve sat in the driver’s seat of a car within the past three hours. Forget about whether you’ve actually driven the car. It doesn’t even matter if the engine was ever on.
If an officer believes that you sat in a driver’s seat while under the influence of drugs at any time within the last three hours, he/she now has the power compel you to undergo a breath test, a blood test, a urinalysis, or an oral swab as required to check for the presence of drugs in your system. Regardless of whether the charges would ultimately stand, the police have legal authority to engage in random detainment and drug testing. Whereas before, this power was probably practically limited to the roadside, the three hour requirement now means they can detain and test a suspect just about anywhere.
Mandatory minimums
Additionally, mandatory minimum incarceration periods for impaired driving have been increased (Criminal Code, s. 255(1)(a), as amended). For a second offence, the penalty is a guaranteed 30 days in jail, up from 14 days. For a third offence, it’s a minimum incarceration period of 120 days, up from 90. (Note: I will be discussing mandatory minimum sentences in greater depth at a later date, since I think I could devote an entire post to them.)
The all-knowing machine
As explained above, drunk driving prosecutions rest disproportionately on a single, fallible piece of evidence: a certificate of analysis from a breathalyzer test.
But even assuming the device is being used properly, the machine suffers from many documented problems. For example,
“The Intoxilyzer is designed to produce a breath alcohol result exactly corresponding to a simultaneous blood alcohol sample. The problem is the assumption that the partitioning of alcohol from the blood into the breath is 2100:1. Not all persons partition alcohol from their blood based upon this ratio. Studies show partition ratios as low as 834:1. The Intoxilyzer 5000 will overestimate the alcohol concentration of someone blowing with a partition ratio less than 2100:1.”
Despite having an established error rate of between 10% and 30%, courts have upheld the use of breathalyzers because their results must be considered in light of other evidence:
“In State v. McCarty 434 N.W.2d 67 (S.D. 1988), the court ruled that a statutory declaration that the partition ratio is 2100:1 did not create an unconstitutional irrebuttable presumption. The defendant had a BAC of 0.14% based on a breath test. At the trial, the defendant raised issues concerning the reliability of using a partition ratio of 2100. At trial, the jury was instructed in language identical to statutory construction that BAC shall be based on either alcohol concentration in blood or breath. The court acknowledged that this ratio can vary from 1142 to 1 to 3478 to 1; it even quoted an expert on the artificial rigidity of mandating a partition ratio of 2100 to 1. While admitting that the jury instruction was improper, the court said that it was cured by another instruction which stated that presumptions created by statute are inconclusive, and must be considered a part of the total evidence presented at trial. Therefore, there was no irrebuttable presumption of guilt by the state.”
However, the government has now placed almost total faith in the all-knowing machine, which is hailed as an “objective” measure of an accused’s level of intoxication:
“evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was … the concentration determined by the analyses.”
(Criminal Code, s. 258(1)(c), as amended. Emphasis added.)
The only challenge to this “conclusive proof” is where the defence can show that the machine was malfunctioning or was operated improperly. Of course, it’s fairly difficult to demonstrate this where the machine is in the possession of the police and cannot be properly inspected.
Previously, defence counsel could bring “evidence to the contrary” to show that the breathalyzer reading must be wrong. For example, a witness could testify that he was at the bar with the accused all night, and that the accused only drank one beer. Now this defence has been severely curtailed by the legislature:
“for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of
(i) the amount of alcohol that the accused consumed,
(ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or
(iii) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed;”
(Criminal Code, s. 258(1)(d.1), as amended.)
Professor Solomon has rightly complained that the evidence to the contrary defence has been used “completely inappropriately” by defence counsel. Nevertheless, section 258(1)(d.1) goes too far by completely nullifying the availability of the defence.
Yes, there will be unscrupulous defence lawyers. And yes, there will be witnesses who lie. But it is the role of the judge (or jury) to weigh the evidence and conclude whether it should be considered or not. This is a challenging job, but judges are relied on to do it every single day in this country. It should be up to a judge to decide whether a witness is lying or whether the defence’s argument is sound.
The statutory elimination of the evidence to the contrary defence represents a serious infringement of the presumption of innocence. The “conclusive” nature of breathalyzer evidence means that by the time the accused reaches trial on account of failing the breath test, their fate is predetermined. In essence, the judge in impaired driving cases is being replaced by a machine that is “objectively” deciding who is guilty and who is not. By depriving the accused of the ability to introduce relevant and non-prejudicial evidence at trial, the legislature is seriously curtailing that accused’s fundamental right to make full answer and defence to the charges:
“This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice … The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.”
(R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 336.)
Legitimately innocent people will be caught in this new net. No matter how severe the problem of drunk driving, depriving an accused of the right to make full answer and defence simply cannot be justified.
Chronic Drunk Driver Gets 20 Years, but not Designated a Dangerous Offender
A few months ago while listening to CBC Radio, I heard about the controversial case of a man being tried in Alberta for habitually drunk driving.
The man, Raymond Yellowknee, had already been convicted of drunk driving three times, when in 2006 he decided to drink and get behind the wheel yet again.
According to police, Yellowknee had a blood alcohol level of 0.22 (about three times the legal limit), and was driving a stolen pickup truck. Police pursued the vehicle, but Yellowknee refused to stop and instead provoked a high speed chase.
Just minutes later, Yellowknee lost control of the truck and crossed the center divider. He collided head-on with a passing car.
Inside the car were a mother, who was nearly finished her training to become a teacher, and her three young daughters. All were killed.
I became interested in the case when the radio broadcast reported that the Crown would be seeking a dangerous offender designation for Yellowknee under s. 753 of the Criminal Code. The designation allows the convicted offender to be sentenced to an indeterminate prison term.
The dangerous offender provisions are usually reserved for the most serious violent offenders that a court believes cannot be rehabilitated. This would have been the first time that the designation would be used for a habitual drunk driver.
A judge would have to acknowledge that drinking and driving is a serious personal injury offence: one which carries a sentence of ten years or more, and involves “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person” (CC s. 752).
The Canadian Press reports that yesterday judge Ernie Walter of the Alberta Provincial Court decided not to name Yellowknee a dangerous offender. I should point out that Yellowknee, 35, had by this point:
… amassed a total of 71 offences and has been out of jail for only one year since he was 18.
Instead, judge Walter felt (for whatever reason) that there was a chance for rehabilitation. The court sentenced Yellowknee to 20 years (less time already served) under the “long-term offender” provision.
Section 753.1 of the Criminal Code defines a long-term offender as one posing a substantial risk of re-offending but also one where “there is a reasonable possibility of eventual control of the risk in the community.”
Robert Solomon, Professor of Law at the University of Western Ontario, provided us with his opinion of yesterday’s decision:
The Crown had sought a dangerous offender designation, which carries an indeterminate sentence and lifetime parole. Instead, the judge held Mr.Yellowknee to be a long-term offender, which means that he will be supervised in the community for 10 years after his release from prison. Yellowknee was sentenced to 20.5 years imprisonment reduced to 16 years to reflect his pre-trial detention. In my view, several elements of the Yellowknee decision are gratifying. First, the judge clearly stated that Mr. Yellowknee’s long history of impaired driving offences, coupled with his horrific conduct on the day in question, met the criteria for being designated a dangerous offender. Although it is long overdue, this is the first case in which a Canadian court has acknowledged that repeat impaired driving offenders who pose ongoing risks can justifiably be labelled dangerous offenders. Second, Mr.Yellowknee’s long-term offender designation and lengthy sentence will protect the public for almost as long as a dangerous offender designation.
Without reading the decision [it seems to be unreported as yet], it is difficult to understand why the judge exercised his discretion not to label Mr. Yellowknee a dangerous offender. The facts are as close to a worst case scenario as one can imagine and a dangerous offender designation was clearly justified. However, the Supreme Court of Canada has previously indicated that the dangerous offender designation should not be used if a less onerous sentence would adequately protect the public. Perhaps the judge was concerned that a decision to label Mr. Yellowknee a dangerous offender would be overturned on appeal. Clearly, finding Mr. Yellowknee to be a long-term offender is less controversial than finding him to be a dangerous offender. Moreover, defence counsel had indicated that they would accept a long-term offender designation. The choice between the designations would not have made a great difference in this case, given the 16 year prison sentence.
Regardless of the ultimate designation handed down for Mr. Yellowknee, yesterday’s decision should set a precedent (admittedly, non-binding) for dealing with habitual drunk drivers and the substantial risk of harm that they pose to the community.
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