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.