Legislative Background: reforms to the Transportation Provisions of the Criminal Code (Bill C-46)
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Overview of Part VIII.1 as proposed by Bill C-46
As noted, the Criminal Code first prohibited driving while intoxicated by alcohol in 1921 and by a drug in 1925. Since that time, there have been numerous amendments to the transportation offences, most frequently in the area of impaired driving.
While these reforms have strengthened measures to combat impaired driving, they have also added to the complexity of the Criminal Code’s transportation offence provisions and they have created some overlap between offences and inconsistencies amongst penalties. In its 1991 Report Recodifying Criminal Procedure, the Law Reform Commission wrote that some of the impaired driving provisions had "become virtually unreadable".Footnote 10 Moreover, the impaired driving provisions have been subject to such extensive litigation that it is difficult in some cases to understand how they operate from simply reading the text. This, in turn, has affected effective and efficient investigation and prosecution.
Bill C-46 therefore proposes a revision of the provisions in a new Part of the Criminal Code to make the law more comprehensible, by simplifying and modernizing the drafting, eliminating some provisions that are unnecessary, and introducing some new provisions. The overall intention is to make the investigation and prosecution of impaired driving offences simpler while respecting the Charter rights of Canadians. It is anticipated that these reforms will have a positive effect on bringing cases to a resolution and reduce delays.
Bill C-46 contains a statement of principles (section 320.12). The principles are declaratory statements, which form part of the Criminal Code, and, if enacted, are intended to act as an interpretative tool for the reforms. For example, the principles regarding breath testing for alcohol and the Drug Recognition and Evaluation (DRE) process reflect the government’s confidence in the science underlying the procedures.
Although everyone who meets provincial standards concerning age, health, knowledge of the rules of the road, and competence by passing a driving test is entitled to a driver’s licence, the privilege of driving is subject to the person respecting provincial highway traffic laws and federal and provincial laws regarding sobriety, blood alcohol concentration (BAC) and blood drug concentration (BDC).
II. Definitions and clear language
Bill C-46 seeks to reduce the complexity of the law and to use simpler and more modern drafting language. More modern language does not of itself indicate a substantive change. For example, “forthwith” in the English would be replaced with “immediately” in the context of a driver providing a breath sample on the approved screening device (ASD). This change is consistent with the interpretation of forthwith in the jurisprudenceFootnote 11 and is not intended to impact the flexible approach adopted by the courts in administering the ASD in situations, for example, where there is mouth alcohol present. It is also consistent with the current French version which uses the term “immédiatement” which is also used in the new Part VIII.1.
Similarly, in the proposed French version, “alcootest approuvé” as the equivalent of “approved instrument” (AI) would be replaced by “éthylomètre approuvé” which is the more commonly used term in Francophone countries. Other examples include “thereby” being replaced by “as a result” and “where it is proved” being replaced by “if it is proved”.
The term “conveyance” is used to refer to any motor vehicle, vessel, aircraft or railway equipment. Defining “conveyance” reduces the need for unnecessary repetition throughout Part VIII.1. Where the words “motor vehicle, vessel, aircraft or railway equipment” (other than in the definition of “conveyance”) nonetheless appear separately in a provision of the Bill, the provision only applies to the type of conveyance mentioned in that provision, (e.g., mandatory alcohol screening only applies to motor vehicles).
The definition of “operate” incorporates the concept of “care or control” which currently is only in the impaired driving offences. This amalgamation is not intended to change the meaning of either “operate” or “care or control”. The use of “operate” and “conveyance” results in shorter, clearer provisions.
Certain expressions that add to the complexity of the law would not be in the proposed new Part. For example, the requirements in paragraph 258(1)(c) that samples of breath be taken “pursuant to a demand under subsection 254(3)” and that the sample be “received directly” into an AI do not appear in proposed section 320.31.
Part VIII.1 contains 10 basic transportation offencesFootnote 12:
- Dangerous operation of a conveyance (section 320.13);
- Operating a conveyance while impaired (paragraph 320.14(1)(a));
- Having a BAC of 80 or more within two hours of operating a conveyance (paragraph 320.14(1)(b));
- Having a blood drug concentration (BDC) over the prescribed legal limit within two hours of operating a conveyance (paragraph 320.14(1)(c));
- Having a combined BAC and BDC over the prescribed legal limit within two hours of operating a conveyance (paragraph 320.14 (1)(d));
- Having a BDC over a prescribed limit that is lower than the BDC set under paragraph 320.14(1)(c) within two hours of operating a conveyance (subsection 320.14(4));
- Refusing to comply with a demand (section 320.15);
- Failure to stop after an accident (section 320.16);
- Flight from peace officer (section 320.17); and
- Driving a conveyance while prohibited (section 320.18).
The three offences referring to a BDC over the legal limit reflect the new offences proposed in Part 1 of the Bill. There are also significant changes to the offences of operating while impaired, operating “over 80” and refusal. Elements of allother offences remain essentially unchanged from their previous versions although the drafting has, in some cases, been modernized. Where language has been modernized, previous jurisprudence on the interpretation of these offences should continue to be applicable.
Part VIII.1 proposes to clarify the degree of impairment that would be necessary to commit the offence (section 320.14). The language of the offence indicates it would be an offence to operate a conveyance if a person’s ability is impaired by alcohol or a drug or a combination of alcohol and a drug “to any degree”. This is to reinforce that evidence of impairment established to any degree, ranging from slight to great, is sufficient to ground the offence of impaired driving. This represents the current lawFootnote 13.
Operating with a BAC equal to or exceeding 80 within two hours of driving
The proposed formulation “equal to or exceeding” responds to concerns regarding the practice of truncating (i.e., rounding down to the nearest multiple of 10) BAC resultsFootnote 14. Under the current provision, the police must take two samples of breath that are 15 minutes apart and the lower of the two BAC results is used. Consequently, when, for example, a person blows 101 and 89, as indicated by the digital readout on an AI, they would not be charged as the lower reading would be rounded down to 80 even though there is no doubt the person was over 80.
The new formulation of the offence “operating at or over 80 within two hours of driving” would eliminate the bolus drinking defence, by changing the timeframe within which the offence can be committed. Also, it significantly limits the intervening drink defence. The bolus drinking defence arises when the driver claims to have consumed a large amount of alcohol just before or while 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 not “over 80”. Making this behaviour subject to criminal sanctions is consistent with the comments of the Supreme Court of Canada in R v St-Onge – Lamoureux (St-Onge).Footnote 15 The Court stated that such a defence showed “significant irresponsibility with regard to public safety.”
This formulation of the offence is used in at least 16 American statesFootnote 16 and has been upheld by the courts. As one Washington court noted in upholding such a law in 1997, “[t]he [legal limit for] BAC is not some magical bright line between safely drunk and unsafely drunk, and the fact that driving with less than a [legal limit for] BAC may prove to be criminal under the two-hour rule does not mean that the rule is arbitrary or not substantially related to public safety”.Footnote 17
The formulation also limits the intervening drink defence which arises when a driver drinks after driving but before they provide a breath sample. This defence often arises where there has been a serious collision and the driver claims to have been settling their nerves. This undermines the integrity of the justice system as it rewards conduct specifically aimed at frustrating the breath testing process. The only situation in which a driver could rely on intervening consumption to avoid a conviction is captured in subsection 320.14(5).The offence is not made out if all of the following conditions are met:
- The person consumed alcohol after ceasing to operate the conveyance;
- The person had no reasonable expectation that they would be required to provide a sample of breath or blood; and,
- Their alcohol consumption is consistent with their BAC at the time the samples were taken and with their having had a BAC of less than 80 at the time of operation.
Situations in which a person would have “a reasonable expectation” that they would be required to provide a sample would be decided on a case-by-case basis by the courts. However, a person involved in a serious collision causing death, bodily harm, or major damage should reasonably expect to be required to provide a sample. This limitation is consistent with the Supreme Court comment in St-Onge where the Court indicated that, “there is good reason to suspect that post‑driving drinking (or just the claim thereof) is an act of mischief intended to thwart police investigators. All such cases, at the very least, involve a significant degree of irresponsibility and a cavalier disregard for the safety of others and the integrity of the judicial system.”Footnote 18
Operating a Conveyance with a BDC over the Legal Limit
The three new offences of having a BDC above the prescribed limit for that drug within two hours of driving that would be enacted by Part 1 of the Bill are reproduced in Part VIII.1 using simplified and modernized drafting. These offences are similar in principle to the offence of operating with a BAC equal to or over the legal limit. Several jurisdictions have established legal drug limits while driving, including the United Kingdom that has limits for 16 drugs and Norway that has limits for 20 drugsFootnote 19. The legal limits under the proposed framework will be set by regulation, on the basis of advice from the DDC.
The proposed offences are:
- A straight summary conviction offence for drivers with low levels of impairing drugs;
- A hybrid offence for drivers with impairing levels of drugs alone; and
- A hybrid offence for drivers with impairing levels of drugs in combination with alcohol.
The proposed THC offences are:
- Summary conviction: 2 ng but less than 5 ng THC per ml of blood
- Hybrid – drug alone: 5 ng or more THC per ml of blood
- Hybrid – drug and alcohol: 2.5 ng THC per ml of blood combined with a BAC of 50.
The hybrid drug-alone offence would also apply to other impairing drugs (e.g., LSD, Ketamine, PCP, magic mushrooms).
Authorizing the Governor-in-Council (Cabinet) to set the blood-drug limits by regulation is a flexible process to respond to the evolving science with respect to drug impairment rather than having to amend the Criminal Code whenever a new limit is proposed. The DDC has provided a report on THC and eight other drugsFootnote 20.
The proposed section 320.15 clarifies the intent required for a person to commit the offence. The person must know that a demand has been made and fail or refuse to comply without a reasonable excuse.
Where there has been an accident causing bodily harm or death, the mental element is knowledge or recklessness that they were involved in the accident that resulted in bodily harm or death. Under the current law, the mental element is that the person knew or ought to have known that they had caused the accident.
Offences not to be re-enacted
Part VIII.1 would not re-enact certain offences, such as “dangerous driving during flight from police causing bodily harm or death” and “dangerous driving during street racing” offences. These offences were originally enacted to provide a higher maximum penalty for dangerous driving in certain narrow circumstances. The proposed increases in the maximum penalties for dangerous driving makes these offences unnecessary. Additionally, the current offences of failure to keep watch on a person towed and taking an unseaworthy vessel on a voyage would not be re-enacted. These offences are administrative in nature and, where the conduct rises to the level of criminal activity, the offences of criminal negligence and dangerous operation are available.
IV. Penalties and prohibitions
The proposed penalties and prohibitions are, with a few exceptions, the same as those that currently exist. The changes are:
The mandatory minimum fine for a first conviction for impaired driving or having a BAC of 80 to 119 would be: $1,000. There would be higher mandatory fines for first offenders with high BACs: $1,500 for a BAC of 120 to 159, and $2,000 for a BAC of 160 or more. To ensure that there is no incentive to refuse to comply with a demand, the MMP for a first refusal conviction would be $2,000.
The current mandatory minimum penalties (MMP) for repeat offenders would be unchanged: 30 days imprisonment for a second offence and 120 days imprisonment for a third or subsequent offence.
The maximum penalty for all the transportation offences would be increased from 18 months to two years less a day on summary conviction, and from 5 years to 10 years on indictment. The 10 year maximum would make it possible to make application for the offender to be designated as a Dangerous Offender or a Long Term Offender.
It is proposed that offences causing bodily harm be hybridized. This would allow the Crown to elect whether to proceed by indictment or by summary conviction. Where the Crown proceeds by summary conviction, the maximum penalty would be 2 years less a day. Where the Crown proceeds by indictment, the maximum penalty would be 14 years imprisonment
Nine transportation offences would be added to the definition of “designated offence” in section 752 (dangerous offender and long term offenders).
Aggravating Factors for the Purpose of Sentencing
In addition to the general sentencing principles in Part XXIII (Sentencing) of the Criminal Code, section 320.22 contains a list of aggravating factors which a court must consider when imposing a sentence for any of the conveyance offences. It should be noted that the aggravating factor of having a BAC over 120 would not be considered for a first offence of impaired driving simpliciter since a higher mandatory fine is already provided for in this circumstance. However, it would be an aggravating factor in subsequent impaired driving offences or if bodily harm or death is involved.
Postponement of Sentencing
Under the proposed provision, a court that convicts a person of impaired operation or refusing to provide a sample could postpone sentencing, where the offence did not cause bodily harm or death to permit the offender to attend a treatment program (section 320.23(1)). The Crown must consent and the treatment program must be approved by the province. However, if the court postpones sentencing, it must make a prohibition order.
If the offender successfully completes the treatment program, subsection 320.23(2) would permit the court to decline to impose the MMP. However, the court would not be permitted to direct a discharge. This limitation ensures that the offence for which the accused was convicted will remain on their criminal record and act as a prior offence for any subsequent impaired or refusal offence.
These provisions would replace the current subsection 255(5), which allows a court to discharge an offender on condition that they take a curative treatment for their consumption of alcohol or drugs. This provision is not in force in Newfoundland and Labrador, Quebec, Ontario and British Columbia.
Prohibitions and Provincial Ignition Interlock Programs
The new Part would maintain the current approach to prohibition orders for transportation offences. However, an offender may be permitted to drive earlier than is currently allowed during the prohibition period if they are enrolled in a provincial ignition interlock program and comply with the conditions of the program. The intent of the Bill is to encourage the use of ignition interlocks by reducing the period during which an offender has to wait before they are permitted, under the criminal law, to drive with an ignition interlock program.
The new Part would no longer require the court to bring to the attention of the accused the specific Criminal Code provision which makes it an offence to drive while prohibited. This requirement is unnecessary, overly technical, and contrary to the principle that a person is presumed to know the law. Consequently, 320.24(5) only requires the court to ensure that the offender has read the order or received a copy.
V. Investigative matters
Mandatory alcohol screening
Under current law, the police must have suspicion of alcohol in the body to be able to demand a roadside alcohol screening. Research has shown that police are often unable to develop the necessary suspicion in their brief interaction with drivers stopped at roadside for a sobriety check. Some studies have indicated that police using the current system may fail to detect as many as half the drivers above the limit.Footnote 21
A significant proposed change is the introduction of mandatory alcohol screening (320.27(2)) which would likely occur mainly, but not exclusively, at organized sobriety checkpoints. Quite simply, a police officer who has stopped a driver, for example to investigate a speeding violation, would be able to demand that the driver provide an ASD sample without needing to have reasonable suspicion that the driver has alcohol in the body.
In countries that have adopted mandatory alcohol screening, the reductions in deaths and injuries on the roads have been dramatic. The Standing Committee on Justice and Human Rights in its 2009 Report “Ending Alcohol-Impaired Driving, A Common Approach” noted a decrease in deaths of 36% in four years in New South Wales and 23% in Ireland in the first year after they adopted mandatory alcohol screening.Footnote 22
The Standing Committee therefore unanimously recommended mandatory alcohol screening in its 2009 report.Footnote 23 It responds to research that indicates that many drivers who have an illegal BAC are able to pass through sobriety checkpoints undetected by understating the amount they drank or claiming they did not drink at all. Mandatory alcohol screening will detect these drivers. Moreover, the knowledge that drivers who are stopped cannot avoid providing a breath sample is a powerful deterrent to drinking and driving.
Mandatory alcohol screening has sometimes been referred to as Random Breath Testing (RBT), the terminology used in Australia, and some commentators and members of the public mistakenly consider this to be a new power to stop vehicles at random.
In fact, random stopping has been considered on three occasions by the Supreme Court of Canada. The first case was R v DedmanFootnote 24 where the Court found that random stops were justified at common law because of the importance of deterring impaired driving, the necessity of random stops to effective detection, and the fact that driving is already subject to regulation and control in the interests of safety.
The second case was R v HufskyFootnote 25. It dealt with a random stop at a checkpoint pursuant to the Ontario Highway Traffic Act. The Supreme Court found that, in view of the importance of highway safety and the role to be played in relation to it by a random stop, the limit on the right not to be arbitrarily detained is a reasonable one that is demonstrably justified in a free and democratic society.
The third case was R v LadouceurFootnote 26. In that case, the stop was by a roving patrol car and not at an organized checkstop. The Supreme Court held that reducing the carnage on the highways caused by impaired drivers was a pressing and substantial concern which the government was properly addressing through random stops. As the Court noted, “stopping vehicles is the only way of checking a driver's licence and insurance, the mechanical fitness of a vehicle, and the sobriety of the driver.”
With respect to screening on suspicion of alcohol in the body, the law would be unchanged and the peace officer may demand Standardized Field Sobriety Tests (SFST) and/or ASD tests.
Testing for the presence of a drug
Currently, an officer who has a reasonable suspicion of a drug in a driver’s body can only demand that the person perform the SFST. Bill C-46 would authorize the Attorney General of Canada to approve, by Ministerial Order, roadside drug screeners (drug screeners). At this time, oral fluid screening devices are the only appropriate technology for use by law enforcement. These are devices that detect the presence (essentially a “yes” or “no” answer) of a few drugs, including THC, cocaine and methamphetamines, three of the most commonly occurring drugs found in Canadian drivers. Before a drug screener could be authorized for use, it would have to be evaluated by the Drugs and Driving Committee against a set of rigorous evaluation criteria.
An officer would be authorized to demand that a driver provide an oral fluid sample if they reasonably suspect that a driver has drugs in their body. The results on a drug screener would not directly lead to a charge, but would instead lead to further investigation. They would be useful in detecting drivers who have drugs in their body and would provide more specific information about the presence of drugs than the SFST tests. For THC, it is probable that, if it is found in oral fluid, it will also be found in the blood. However, the screeners cannot provide any information about the level of a drug in the blood, nor any information about whether or not a driver is impaired.
A peace officer may demand all three tests if they have a suspicion of the presence of both alcohol and drugs. The peace officer does not need to articulate which drug is suspected of being present.
Drug Recognition Evaluation (DRE)
The law relating to the taking of a bodily sample for the purpose of an evaluation would be essentially unchanged. However, “based on the evaluation” has been deleted to ensure that the evaluating officer can testify as to all their observations, not just those specifically related to the DRE steps (320.28(4)). For example, if the person is constantly twitching, that may indicate they are under the influence of a stimulant. Evaluating officers are trained to note such observations in developing their conclusions.
There would also be a new power for an evaluating officer to demand a breath sample by means of an AI if this demand has not already been made. This change addresses a challenge encountered under the current legislation which provides that an AI demand cannot be made if there had already been an ASD demand. Where the evaluating officer suspects that alcohol is involved, it is essential that there be an AI analysis to prove the person’s BAC. Even a low BAC combined with another drug, particularly cannabis, can produce impairment. Proof of BAC must be based on the results of the AI test and not on the ASD test.
Demands for Blood by Investigating Officer
Under the current provisions, a patrol officer can only demand a blood sample where the driver was, for some reason, incapable of providing a breath sample; for example, if the person’s mouth was injured in a collision or the person had a congenital mouth defect. This limit on a blood sample demand exists because the breath test on an AI is far less intrusive and produces immediate results. Where such a blood sample is taken, it may be further tested for a drug as it is an offence to be impaired by a combination of alcohol and a drug.
However, the proposed new drug-impaired offences require that there be proof of blood drug concentration. Currently, there is no equipment to rapidly determine blood drug concentration at the roadside. Consequently, when a drug has been detected in a driver’s saliva at roadside and the officer believes the driver is impaired by a drug, the police would be authorized to demand a blood sample for analysis.
Authorization to Take Blood Samples
Subsection 320.28(6) proposes that a qualified blood technician can take blood in ordinary cases rather than requiring the supervision of a doctor. Taking a person to a hospital is unnecessary in the vast majority of cases. Qualified blood technicians are authorized by the proposed provision to take blood samples only if they believe that there is no danger to the person’s health.Footnote 27
Warrants to Obtain Blood Samples
The timeframe in which the police can seek to obtain a warrant to take a blood sample from a person who cannot consent would be extended from four hours to eight hours (section 320.29). Typically, the person has been injured in an accident that caused bodily harm or death and was taken to hospital. This extension of time recognizes that, in these situations, police often have to deal with the aftermath of the collision before seeking the blood sample warrant. Situations where individuals have been injured or died are the most serious and the Government believes it is important to ascertain whether or not alcohol or drugs were involved in these situations.
The grounds for granting the warrant would be changed. Under the current warrant provision, the peace officer must have reasonable grounds to believe that the person had committed the offence of driving while impaired or driving while over the legal limit and reasonable grounds to believe they were involved in a collision causing bodily harm or death. A doctor would have to confirm that the person was incapable of consenting, usually because the person is unconscious, and that taking the sample would not endanger the person’s health. A doctor would either have to take the blood or supervise the taking of the blood by a qualified technician.
The new warrant provision only requires that the peace officer have reasonable grounds to suspect that the person has alcohol or a drug in the body. This change mirrors the provision in the current law which permits a peace officer to demand an ASD test if there are reasonable grounds to suspect alcohol in the body.
VI. Evidentiary matters
Proof of BAC
There are several proposed changes dealing with proof of BAC but the underlying principles are the same. The law would now clearly spell out the procedures that must be followed to ensure an accurate BAC reading.
As noted in the Principles, if enacted, Parliament has confidence in the accuracy and reliability of AIs that are approved by the Attorney General of Canada after being evaluated and recommended by the ATC. Modern AIs perform internal checks and are programmed so that they will not activate if there is a problem that could affect the result. For example, the standard alcohol solution test used to determine whether or not the AI is properly calibrated must be within set parameters or the AI will not operate. Furthermore, modern AIs are digital and provide a printout showing the results of the air blank tests, the standard alcohol solution tests and the subject tests, such that there is no possibility of an AI malfunctioning or being used improperly in a way that would not be evident on the printed test record.Footnote 28
Subsection 320.31(1) reflects this confidence. It would make the results of a breath analysis by an AI conclusive proof of the BAC at the time of testing if the prosecution can establish that these conditions are met: before each sample was taken there was an air blank test and a calibration check within specified parameters, there were 15 minutes between tests and the two tests, when truncated, were within 20 mg/100 mL of one another. These procedures, if followed, ensure that the breath test of a person has produced accurate results.Footnote 29
With respect to breath samples, an accused would no longer be able cast doubt on the reliability of the AI breath analysis. If the results of the conditions above are met, BAC at the time of testing is a proven fact.
Conclusive proof – blood samples
The law with respect to blood samples to determine BAC would not be changed – the person must point to evidence of a mistake by the analyst and cannot rely solely on evidence of consumption and a calculation of BAC based on that consumption to show an improper analysis
Proof of BAC - more than two hours after operating
Due to the proposed reformulation of the offence, the presumption that, where the first sample is taken within two hours, the results of the AI analysis are equal to the BAC at the time of driving (the presumption of identity) is no longer necessary. Where the sample is taken beyond two hours, BAC would be BAC at the time of testing plus an additional 5 mg for every 30 minutes in excess of those two hours. This approach eliminates the requirement for a toxicologist to calculate what the drivers BAC would have been at the time of driving.
While the elimination rate of alcohol varies from individual to individual, it is scientifically accepted that after two hours, people are eliminating alcohol from their bodies at a rate of 10 to 20 mg per hour; thus BAC is falling.Footnote 30 The mathematical formula is therefore favourable to the accused. This change also reflects the fact that the time of the test is irrelevant to the accuracy of the BAC analysis. The AI does not transform from a reliable instrument when the tests are within two hours into an unreliable instrument when the test is performed after two hours. It is impossible for the very same AI to be reliable at 10:00 and 10:16 for the tests on a driver who was stopped at 8:01 but unreliable if the driver was stopped at 7:59.
Presumption of drug-impairment
There are two significant changes proposed relating to evidence in the area of DRE. The law would be clarified to ensure that the evidence of an evaluating officer conducting the DRE is admissible at trial without a hearing to qualify the evaluating officer as an expert. This clarification reflects the confidence that Parliament has in the specially-trained evaluating officers and their opinion on impairment by drugs. It also reflects the majority opinion in the Supreme Court of Canada decision R. v. BingleyFootnote 31.
The second proposed change is the introduction of a presumption in the DRE context. This presumption in subsection 320.32(7) is triggered if an evaluating officer identifies a type of drug as being in the system of a person based on his or her evaluation and that type of drug is confirmed by testing a bodily sample in a lab. Once the identified type of drug is confirmed as the same as the evaluating officer identified, it is presumed, in the absence of evidence to the contrary, that the identified drug was also present in the person’s body at the time when they were operating the conveyance and caused the impairment observed by the peace officer who made the arrest.
This presumption can be rebutted by the accused if they can raise a reasonable doubt that the signs of impairment were caused by something else such as a medical condition.
There is a proposed change in procedure related to certificates when the accused seeks to have the person who signed the certificate cross-examined. Under the proposal, the accused has to apply in writing and provide particulars of the likely relevance to an issue in the trial of the evidence that the person who signed the certificate can give that is beyond the facts set out in the certificate. A copy of the application will have to be served on the prosecution at least 30 days before the date set for hearing, which date must also be at least 30 days before trial. The provision is intended to ensure that the person who signed the certificate is not required to attend unnecessarily. In particular, a certificate of the qualified technician showing that the conditions for establishing conclusively BAC were fulfilled, should eliminate the need for the qualified breath technician to testify in the vast majority of cases.
A new procedure is proposed with respect to disclosure relating to subject breath tests (320.35). It specifies what the prosecution is required to disclose based on what the ATC advises is scientifically necessary to determine whether a subject breath test provided accurate results.Footnote 32 The accused can apply for further disclosure but must satisfy a judge that additional material is likely to be relevant.
In the wake of the 2008 amendments restricting evidence to the contrary, and most recently following the Supreme Court of Canada decision in St-Onge, there has been an increase in the number of requests for disclosure of information which is irrelevant to determining that the AI was in proper working order. This increase has led to lengthy hearings and contradictory judgments on what has to be disclosed. It has caused significant delays in bringing many impaired driving cases to trial.
These changes reflect the Government’s confidence in the reliability of AIs and its acceptance of the ATC’s position that such items as maintenance records of AIs are scientifically irrelevant to determining a valid subject breath test.
It is important to note that nothing in section 320.34 limits the disclosure to which an accused may otherwise be entitled. In any issue unrelated to the accuracy of the BAC, the Criminal Code is silent with respect to the disclosure obligations and reference should be made to the common law.
VII. Transitional provisions
The elements related to the proof of BAC and disclosure in response to the Supreme Court of Canada’s decision in St-Onge will apply to any case before the courts when the new Part comes into force. This legislative direction clearly indicates that all cases before the courts are to be decided on scientifically valid grounds.
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