Legislative Background: reforms to the Transportation Provisions of the Criminal Code (Bill C-46)

Overview of existing law and challenges

The Government has committed to creating new and stronger laws to combat this crime. On April 13, 2017, the Government therefore introduced Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts.

To understand Bill C-46, it is important to understand how the current Criminal Code provisions dealing with impaired driving work. This is difficult as impaired driving is amongst the more complex and heavily litigated areas of the criminal law. Over the years, these provisions have been amended on a piecemeal basis, resulting in a complex set of provisions which are challenging to understand, even to senior legal practitioners and judges.

The Criminal Code prohibits driving while impaired by alcohol and/or drugs and driving with a BAC “over 80”. While the impaired driving offence requires proof of impairment, the over 80 offence does not. There is currently no equivalent legal limit offence for drugs.

To facilitate the investigation and prosecution of impaired driving, the Criminal Code provides law enforcement officers (officers) with powers to obtain breath or blood samples and administer physical sobriety tests. The police also have powers under common law and provincial highway traffic legislation to randomly stop a driver to check the driver’s licence and vehicle registration, and to determine vehicle fitness and the driver’s sobriety.

However, officers cannot currently require a driver to comply with any roadside test unless they have reasonable grounds to suspect the driver has alcohol or drugs in their body. With reasonable suspicion, they can demand that the driver either provide a breath sample on an approved screening device (ASD) (for alcohol) or perform standard field sobriety tests (for drugs or alcohol).

If an officer has reason to suspect drugs in the body, they can only demand that a driver perform standardized field sobriety tests (SFST) at the roadside. These tests (e.g., walk and turn) provide evidence that the driver may be impaired. SFST does not indicate whether they have drugs in their body and, if so, at what level. The Criminal Code does not currently authorize the use of any roadside test of a bodily substance to indicate whether a driver has drugs in their body.

Depending on the results of the roadside tests, the officer may have reasonable grounds to believe that the driver has committed an alcohol-impaired or drug-impaired driving offence. At that point, they may demand that the driver accompany them to the police station to either provide an evidentiary breath sample on an AI (i.e., breathalyser for alcohol) or submit to a drug recognition evaluation (DRE) by a specially trained evaluating officer (for drugs). If the evaluating officer identifies a drug as causing impairment, they may demand a bodily substance (i.e., blood, urine, or saliva) to determine the presence of a drug. Currently, without a warrant, there is no legal mechanism for taking a blood sample to determine the presence or concentration of drugs in the blood, without first undergoing a DRE.

The SFST and DRE provisions were added to the Criminal Code in 2008 and have increased the detection of drug-impaired drivers. However, there is an insufficient number of DRE trained officers who can conduct these tests. Additionally, some lower courts have been reluctant to accept the opinion evidence from DRE officers or to draw the inferential link between the presence of drugs found in a driver’s body and impairment at the time of driving.Footnote 7

Proving someone has committed an “over 80” offence can be challenging. Accordingly, the Criminal Code currently contains two presumptions to assist the Crown in these cases. The “presumption of accuracy” assists the Crown in proving that the BAC reading on the AI is accurate if certain procedures have been followed (e.g., the first sample was taken within two hours of driving). The “presumption of identity” helps the Crown prove that the accused’s BAC at the time of driving was the same as his or her BAC at the time of testing.

The ability of the Crown to rely on these presumptions has been limited in certain circumstances. For example, the defence frequently requests disclosure of scientifically irrelevant materials, (e.g., maintenance records in order to argue that the failure to conduct an annual inspection rebuts the presumption of accuracy even though the tests of the AI just prior to testing the accused showed that the AI was working properly). This strategy has resulted in significant trial delays and has led to several cases not being tried for delay or lack of evidence. The ATC has published a paper setting out what is scientifically relevant to proving BAC and indicating that maintenance records are not relevant.Footnote 8 Nevertheless, there continue to be applications for more disclosure than what the ATC considers relevant.

The presumption of identity has been undermined by the defences of bolus drinking and intervening drink. The bolus drinking defence arises when the driver claims to have consumed a large amount of alcohol just before driving. Although they admit that their BAC was “over 80” at the time of testing, they claim that the alcohol was still being absorbed and, at the time of driving, they were under 80. The intervening drink defence arises when a driver drinks after being stopped by the police or involved in an accident, but before they provide a breath sample. This defence undermines the integrity of the justice system as it rewards conduct specifically aimed at frustrating the breath testing process. It also leads to unnecessary litigation, contributing to an overburdened criminal justice system.

The Criminal Code also contains other offences relating to transportation (e.g., dangerous driving, failure to stop at the scene of an accident, flight from police, street racing, and operating a vehicle while prohibited). The underlying conduct of these offences is duplicative of other offences (e.g., the street racing offences and dangerous driving); the only difference is in the penalties and the prohibitions are discretionary.

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