BRIEF TO THE

STANDING COMMITTEE ON JUSTICE, HUMAN RIGHTS

HOUSE OF COMMONS
39^th Parliament, 1^st Session

On Amendments to the Criminal Code of Canada
(Impaired Driving)

Bill C-32

Background of Canadian Criminal Justice Association

The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the Standing Committee on Justice and Human Rights regarding Bill C-32, an Act to Amend the Criminal Code of Canada (impaired driving). Our Association has specific concerns regarding C-32. We outline them here and look forward to your questions and comments.

History of Impaired Driving Legislation

Canada first introduced legislation dealing with impaired driving in 1921, when “driving while intoxicated” became a summary offence under the Criminal Code. The new section of the Criminal Code set forth relatively lenient sanctions when compared to present day laws. An individual found guilty of driving while intoxicated was subject to a term not exceeding thirty days and not less than seven days for a first offence, for a term not exceeding three months and not less than one month, for a second offence, and for each subsequent offence for a term not exceeding one year and not less than three months (Koles, 2003).
 
In 1930, impaired driving became a hybrid offence, on which the Crown could elect to proceed either as a summary conviction offence or by indictment. The prison terms for a summary offence remained unchanged, while the terms for an indictable offence became 30 days to three months for a first offence and, three months to one year for a subsequent offence (Department of Justice, 2000).
           
In 1951 significant amendments were made to impaired driving legislation. The hybrid offence of driving while impaired by alcohol was added with a fine of not less than $50 and not more than $500 and up to 3 months imprisonment for a first offence. Fines were also introduced in the sentencing provisions of the new “driving while impaired” offence.  The offence was either summary or indictable, with punishments ranging from a $50 to $500 fine, a maximum three-month prison term, or both, for the first offence, 14 days to three months’ imprisonment for a second offence, and three months’ to one year’s imprisonment for each subsequent offence. The maximum sentence for either offence was one year’s imprisonment (Department of Justice, 2000).

In 1969, there were extensive changes to the Criminal Code, including the repeal of the offence of operating a motor vehicle while intoxicated and the establishment of the status offence of driving with a Blood Alcohol Content (BAC) of more than 80mg/100ml of blood as a summary conviction offence (Department of Justice, 2000).  As well, refusing to provide a breath sample on an approved instrument was added with the same penalty as the over 80mg offence.

Both the “over 0.08” offence and the “failure to blow” offence became hybrid offences in 1976. At the same time, breath sampling with roadside screening devices was added, when police officers have reasonable grounds to suspect that there is any alcohol in the driver’s body. A hybrid offence was created for refusing to give a sample. Penalties for impaired driving, driving in excess of 0.08 and the refusal offences were harmonized (Department of Justice, 2000).
             
1985 amendments signaled a new phase, in the form of a rather dramatic toughening of the impaired driving sentencing provisions. First, the 1985 amendments created new offences of impaired driving causing bodily harm with a maximum punishment of 10 years in prison and impaired driving causing death with a maximum punishment of 14 years in prison (Department of Justice, 2000). Second, the 1985 amendments raised the minimum mandatory punishment for impaired driving, driving with a BAC over 0.08 and refusing to provide a breath sample to $300 for a first offence, maintained 14 days imprisonment for a second offence and 90 days imprisonment for a subsequent offence. Finally, the 1985 amendments introduced a mandatory minimum driving prohibition of 3 months (first offence), 6 months (second offence) and one year (subsequent offences) as well as a maximum 10 year prohibition from driving following a conviction for impaired driving causing bodily harm or death (Department of Justice, 2000).

Current Proposal (C-32):

Bill C-32 seeks to increase penalties for those individuals who choose to drive while under the influence of alcohol and/or drugs. More specifically, Bill C-32 proposes an increase in fines and minimum jail terms for impaired driving and focuses on drug-impaired driving by giving police the authority to demand roadside Physical Sobriety Tests and bodily fluid samples at the police station (Barnett, 2006).

Currently under the Criminal Code of Canada it is an offence to drive while impaired by alcohol or a drug, or a combination of the two and, while it is an offence to drive with a BAC of over 0.08, no similar drug limit exists. Simply put, although drug-impaired driving is a criminal offence, police have few legally designated means of controlling the offence. Today, police do not rely on drug testing; police instead rely on non-quantifiable symptoms of drug-impairment, such as erratic driving and witness testimony. Drug tests are admissible as evidence in court only if the accused participates voluntarily (Barnett, 2006).

Bill C-32 proposes to give police the power to demand Standardized Field Sobriety Tests (SFST), administered at the roadside, when there is a reasonable suspicion that a driver has a drug in the body. If the driver fails the SFST, the officer will then be considered to have reasonable grounds to believe that a drug-impaired driving offence has occurred, and can take the driver to a police station for a Drug Recognition Expert (DRE) evaluation.

On the occasion that a DRE officer identifies that a specific drug is causing impairment, Bill C-32 allows the officer to take a sample of bodily fluid (saliva, urine, or blood). Such tests will look for impairment by illegal, over-the-counter and prescription drugs.  Refusal to comply with these demands would be a criminal offence, punishable under the same Criminal Code penalties for refusing to take a breathalyzer test.

Bill C-32 also increases penalties for both alcohol and drug-impaired driving and creates new offences with respect to impaired driving causing death or bodily harm. The proposed legislation also aims to further deter drug impaired driving by making it an offence under the Criminal Code to be in care or control of a vehicle while in possession of illegal drugs, punishable by up to 5 years imprisonment.

Problems Identified with the Current Proposal (C-32):

Bill C-32 has been introduced to protect our citizens from drivers impaired by alcohol or drugs or both. This is, of course, a decent cause, and one that the CCJA supports in principle. Unfortunately, and despite the good intentions of those proposing Bill C-32, it is difficult for the CCJA to support the Bill in its current form for several reasons:

1. First, while the CCJA supports the notion of creating an offence for operating a motor vehicle while in possession of certain controlled substances, such legislation must take into account the lawful excuse of those legally possessing such substances for whatever reasons (for example, legally prescribed Schedule IV drugs or medicinal marijuana). Bill C-32 arguably does so; however, such legislation should also remain consistent with existing practices regarding the treatment of those in possession of controlled substances. Bill C-32 does not do that. For example, Bill C-32 makes no distinction between any of the drug Schedules. Given that we already legally consider the possession of different types of controlled substances worthy of different punishments, it is inconsistent to consider all controlled substances the same, as does the proposed legislation.
    
2. Second, Bill C-32 will require that enormous resources be directed towards enforcement. While arguably noble in intention, the reality of such resources being made available consistently across the country is questionable. As the proposed legislation calls for trained officers to conduct tests as to whether a person is impaired by a drug or a combination of alcohol and a drug, said officers will need to be trained and available at all times. Certainly, officers are already trained to recognize signs of impairment (and can legally act upon said recognition to temporarily remove drivers from the road, protecting our citizens); however, this legislation will require that specifically trained ‘drug recognition experts’ (DREs) be available and called upon for their expertise¹. It also requires that a ‘qualified medical practitioner’ be available for taking blood samples. While in many urban settings such requirements may not pose an issue, in Canada’s many rural jurisdictions there will certainly be difficulty securing these DREs and qualified medical practitioners. Indeed, some areas will unquestionably go without access². Furthermore, in these regions the possibility then arises that a situation could occur where, due to a lack of a specific DRE and/or qualified medical practitioner, drivers who would now be removed from driving will actually be allowed to continue on their way.
    
3. Third, Bill C-32 authorizes the taking of bodily fluids to test for the presence of alcohol or a drug. This authorization without a warrant may well fail a Canadian Charter of Rights and Freedoms challenge, given the potential for violations of privacy and personal security rights. The proposed enforcement measures must take into account probable court challenges on the basis of illegal search and seizure, arbitrary detention, protection against self-incrimination, and the right to counsel. Furthermore, legislation already exists allowing the issuing of warrants to obtain blood samples where an accused has committed an offence under section 253 of the Criminal Code of Canada and the person has been involved in an accident causing bodily harm or death (see CCC256).
    
4. Fourth, testing bodily fluids for the presence drugs is problematic at best. Current BAC measurement equipment is considered to be reliable and consistent. The same cannot be said for devices meant to test for the multitude of potential drugs that might cause impairment. Indeed, devices testing for some substances may not detect others. Those same devices may, however, detect substances commonly found in legitimate medications, indicating legal impairment where there is none. We currently have a set BAC standard at which operation of a motor vehicle is considered illegal (0.08). Again, no such standards exist for the mass of potentially impairing drugs. It is likely that people react differently to similar drug use and may or may not actually be impaired with the same ‘level’ of substance in their systems. For example, individuals on regular drug regimes may not be qualitatively impaired even with a blood substance level that is equal to or greater than another person who is considered to be impaired.
    
   As has been noted, there is no scientific consensus on threshold drug concentration levels in the body that cause impairment, affecting one’s ability to drive.  Again, unlike breathalyzer tests used for alcohol, there are no objective tests to measure drug-impairment. Additionally, some drugs can be detected in the body long after their effect has worn off. For example, in the case of marijuana, THC can linger in the body for up to four weeks after consumption and have no clear relationship to impairment and the ability to drive (Ashbridge, July 2006). Given that there is no scientifically proven impairment threshold, and that Bill C-32 does not propose a ‘legal limit’ for drug-impairment (as in the 0.08 limit for alcohol use), the question arises as to at what point law enforcement officials can press charges or consider an individual legally ‘drug-impaired’.
    
   The danger of the proposed legislation here lies in the inconsistency of test results, the lack of existing technology to reliably measure and indicate legal impairment, and the nebulous concept of a legal blood limit for the various substances that might cause impairment. Given the potential ease of the defence against such vague testing³, successful court challenges against such test results will likely be many, negating much of the reasoning for implementing such measures.
    
5. Fifth, by clarifying the evidence an accused can introduce to raise doubt that they were impaired as indicated by BAC results, Bill C-32 takes a potentially dangerous step towards blindly trusting mechanical devices to determine guilt or innocence. While the so-called ‘two beer defence’⁴ might be unpopular, the ability to raise reasonable doubt is essential to ensuring fairness. In addition, restricting such evidence may pose issues relating to guaranteed presumptions of innocence.
    
   While currently a defendant can call on witnesses to testify that he or she had drunk only small amounts of alcohol, or that he or she was drinking at a rate at which the alcohol consumed would have been absorbed and eliminated by the accused’s body, Bill C-32 will limit the use of such “evidence to the contrary” to evidence tending to show that the breathalyzer was malfunctioning or was operated improperly, and that the concentration of alcohol in the accused’s blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time when the offence was alleged to have been committed⁵.
    
   While some argue that C-32 will remove a legal loophole, others note that limiting available evidence to the contrary actually eliminates a legitimate safety valve and reduces judicial discretion⁶. Indeed, by limiting the ability to raise a reasonable doubt through evidence to the contrary to circumstances where there is evidence of machine malfunction or operator error, Bill C-32 weakens the presumption of innocence. The accused will otherwise not be allowed to testify to their consumption in order to defeat the presumptions in s. 258. While we recognize the high degree of accuracy and reliability of breathalyzer machines being utilized by police, we note that no machine or operator is perfect. There remains the probability that circumstances will arise where the machine malfunctions or the operator is in error but the defense is unable to lead evidence on either of these points. In those cases, innocent accused may be convicted due to the limitations that Bill C-32 places on the presumption of innocence and the right to full answer and defense. By limiting the available defenses and strengthening the presumptions created to facilitate prosecution, Bill C-32 increases the likelihood of convicting innocent people. The Canadian Criminal Justice System, like any other, is a human one. We should not allow convictions to be based on a machine, without permitting the accused to respond, no matter the machine’s reliability and accuracy.
    
6. Finally, Bill C-32 proposes to increase penalties for impaired drivers. Current legislation is adequate in this regard.  Impaired drivers who cause bodily harm are already subject to considerable imprisonment. Those who cause death are liable to imprisonment for life, and S. 253(a) of the CCC already includes reference to impairment by alcohol or drugs. As such, it is unclear how Bill C-32 would improve on the current legislation.
    

Conclusion:

For the reasons detailed above, the CCJA recommends that the Standing Committee reject Bill C-32 as it is currently presented.

References:

Ashbridge, Mark. Drugs and Driving. When Science and Policy Don’t Mix. Canadian Journal of Public Health. July/August 2006.

Barnett, Laura. Bill C-32: An Act to Amend the Criminal Code (Impaired Driving). Law and Government Division. Library of Parliament. December 2006.

Bedard, Michel; Dubois, Sacha, Weaver Bruce. The Impact of Cannabis of Driving. Canadian Journal of Public Health. January/February 2007.

Department of Justice. Impaired Driving Case Study. Policy Sector and Legislative Services Branch. September 7, 2000.

^1. Overall evaluations of DRE programs generally demonstrate reliability in identifying motorists under the influence of drugs approximately 75-90% of the time (Barnett, 2006).  DRE testing is used in many U.S. States, Australia, New Zealand, Germany, Norway and Sweden. However, several problems still need to be addressed. First, DREs appear better at identifying certain drugs and drug use among motorists who have consumed a higher drug dosage; less apparent is how DREs perform in evaluating motorists who consume lower drug quantities prior to driving. Second, based on pharmaco-kinetics (i.e. drug half-life), the time between the roadside stop of a suspected motorist and the testing of fluids for drug use at the station may delay DREs’ efforts to determine drug use in association with driving (Ashbridge, 2006).

^2. If Bill C-32 is passed, responsibility will fall under provincial jurisdiction and provinces will be responsible to pay for related police training with scarce resources. Federal budget cuts announced in September of 2006 eliminated the RCMP drug-impaired driving program’s $4.6 million training budget (Barnett, 2006). The Government of Canada has committed only $2 million in funding to benefit law enforcement in Canada for DRE training; obviously this is not enough. How will the provinces fund projects related to drug-impaired driving legislation and effectively implement the proposed changes sought through Bill C-32?

^3. The proposed legislation will make charging, prosecuting and convicting suspected drug-impaired drivers challenging. The Criminal Code necessitates proof of drug impairment in motorists, not merely drug use. Determining thresholds for drug impairments in the context of driving is difficult. Too many variations exist in individuals (drug metabolism, consumption patterns, biological determinants), the drug used (drug class, quantity consumed, combination of drugs consumed at once), and the type of drug testing performed. (Ashbridge, July 2006).

^4. This defense based on evidence to the contrary is more commonly known as the “Carter” defense, referring to the Supreme Court of Canada’s ruling in R. v. Carter. In that case the Court found that expert evidence based on the testimony of the accused demonstrating that the accused’s blood alcohol level would not have exceeded .08 is evidence to the contrary despite the fact that this also means that the evidence respecting the intoxilyzer machine is wrong. The accused is not required to speculate where the error may have occurred. See R. v. Carter (1985), 19 C.C.C. (3d) 174.

^5. Laura Barnett, Legislative summary on Bill C-32 An act to amend the Criminal Code (impaired driving), online: LEGISinfo http://www.parl.gc.ca/legisinfo/index.asp?Language=E&query=4875&Session=14&List=ls.

^6. “Driving While Drugged:  Canada’s Parliament Should Protect Us From Drivers Whose Judgment Is Impaired.  It Must Also Protect Us From Bad Laws,” Ottawa Citizen (2006).