Modernizing the Transportation Provisions of the Criminal Code - Discussion Paper

Driving Prohibitions

There is no consistency underpinning the current prohibitions on operating a mode of transportation. Some of the most harmful offences have only discretionary prohibitions, while prohibitions for some less serious offences are mandatory. The rationale may have been to leave discretion in the court for situations of lengthy incarceration where, presumably, the offender would be off the road for a long period of time and a driving prohibition might not have been seen as needed upon release.

There are two offences related to street racing that, on a second offence involving bodily harm or death, have a mandatory lifetime prohibition yet no such prohibition is required for a person with two offences of impaired driving causing bodily harm. The impaired driving offences do have mandatory prohibitions but they are the same for simpliciter and for offences involving bodily harm or death.

Parliament could be asked to standardized the prohibitions for simpliciter, causing bodily harm and causing death cases each having its own set of prohibitions. The prohibition periods could be:

Simpliciter offences:

Bodily harm offences:

Death offences:

Your views are sought on setting uniform minimum prohibition periods.

Recommendation 6. The Committee recommends that the use of alcohol ignition interlock devices be encouraged.

Recommendation 7. The Committee recommends that the Alcohol Test Committee of the Canadian Society of Forensic Science be authorised to approve alcohol ignition interlock systems for use in provincial and territorial programs

Currently, offenders convicted of alcohol-impaired driving can reduce the length of their prohibition if they are accepted into a provincial/territorial ignition interlock program. So long as the offender is operating an ignition-interlock equipped vehicle in accordance with the conditions of the provincial program, he or she will not be committing an offence. Currently, the Criminal Code does not allow a person to enter an ignition interlock program until three months have elapsed for a first offence, six months for a second offence and one year for a third offence.

One option to encourage the use of ignition interlock would be to set no minimum period of prohibition for a first offender. Each province/territory would determine whether and when it would admit the offender into its ignition interlock program. However, there would be no early admittance of persons who have a previous impaired, refusal or over 80 convictions. A second option would be to reduce the waiting period for admittance to the ignition interlock program so there would be the possibility of having an ignition interlock immediately upon a first conviction, after 3 months for a second conviction and after 6 months for a third or subsequent conviction. A third option would be to allow provinces to admit all offenders (first and repeat) to the ignition interlock programme after 3 months of prohibition.

Your views are sought on when an offender may drive with the use of an ignition interlock device.

The Standing Committee also recommended that "the Alcohol Test Committee (ATC) of the Canadian Society of Forensic Science be authorised to approve alcohol ignition interlock systems for use in provincial and territorial programs."

It is important that equipment which can be used to allow a person to drive a car during a prohibition period be reliable. However, the situation is different than in the case of instruments and screening devices, which simply analyze a breath sample for alcohol. The ignition interlock system must also be able to shut the car down and it must have safeguards to ensure that it is not easily circumvented. The ATC does not have the expertise to evaluate how well the ignition interlock system works once it has detected alcohol.

The ATC could be asked to establish criteria jointly with another body that has the expertise to evaluate the non-alcohol detection aspects of the system. The Criminal Code could specify that the ignition interlock system had to meet the criteria of the joint body. The provinces would then have to conduct the evaluations. Another option would be to have the Criminal Code specify that the provincial program would have to use approved interlock equipment. The joint body would make recommendations to the Attorney-General of Canada who could then approve the system by way of a Minister's order.

What are your views on setting criteria for ignition interlock devices to be used by impaired driving offenders?
What are your views on the role of the ATC in setting criteria?
What are your views on having the AG approve interlock systems for use in Canada?

Investigatory Powers

Random Breath Testing (RBT):

Recommendation 5: The Committee recommends that random roadside breath testing be put in place.

With respect to many driving offences, the evidence is relatively simple to gather and present to a court. A dangerous driving charge will be based on the police having observed someone driving very fast or crossing the centre line and the court will have to decide whether that conducts amounts to dangerous driving. A drive disqualified charge is often based on the police having stopped someone, for example, because a taillight was not working and a check of their name revealed that they are disqualified from driving.

It is much more difficult to prove impairment by alcohol or a drug. The observations of the police are always subject to challenge. Therefore, Parliament placed the issue of impairment by alcohol on a scientific basis by creating the separate and distinct over 80 offences and instituting a breath testing regime in 1969. The breath testing scheme is a unique instance in our criminal law where a person can be found guilty of an offence based on a factor (BAC) that can only be proven by requiring the suspect to provide a breath or blood sample for analysis. To encourage the person to provide a sample for analysis, it is a criminal offence to refuse to provide the sample, without reasonable excuses, where the police have the requisite grounds for making the demand.

The use of ASDs at the roadside has greatly assisted the police in developing the reasonable and probable grounds necessary to make an AI demand. Instead of having to form an opinion based only on subjective observations, the police officer can require the person to provide a breath sample on an ASD if the officer suspects that there is alcohol in the driver's body. It is not a criminal offence to fail the ASD test and a failure on the ASD only constitutes the reasonable and probable grounds needed by police prior to demanding that the detainee provide a breath sample on the AI. The criminal charge can only be proven in court on the basis of an AI test carried out by a qualified technician.

Although the threshold in the Code for the police to make an ASD demand is relatively low, some studies have shown that many drivers with illegal BACs succeed in getting through roadside checks. In order to detect such drivers, several countries require all drivers to provide a screening device test whenever demanded by the police, without any suspicion that there is alcohol in the driver's body. This procedure is known as Random Breath Testing.

RBT has been in use in Australian states, New Zealand and some European countries for many years. RBT has had such remarkable results that in 2004 the European Union recommended that it be a part of every EU nation's traffic safety measures. According to the European Transport Safety Council, RBT is now in use in 22 European states. It should be noted, however, that there are different models of RBT. In Ireland, RBT is only used as part of an organized checkpoint whereas in Australian states, any police officer can require any person that the officer has reasonable cause to believe was driving a motor vehicle to provide a breath sample. (Annex 1 has a summary of research into the safety effects of RBT.)

The Supreme Court of Canada noted, when it upheld in Ladouceur random checks for drivers licenses, registration, mechanical fitness and sobriety:

To recognize the validity of the random routine check is to recognize reality. In rural areas it will be an impossibility to establish an effective organized program. Yet the driving offences in these areas lead to consequences just as tragic as those that arise in the largest urban centres. Even the large municipal police force will, due to fiscal constraints and shortages of personnel, have difficulty establishing an organized program that would constitute a real deterrent.3

RBT and collisions:

There is also the question of persons involved in collisions, particularly those that cause bodily harm or death. Often, the police are fully occupied ensuring medical care to the injured and securing the area so the cause of the collision can be properly investigated. In these circumstances, if the police do not have an ASD at hand, Parliament could be asked to give police the authority to detain drivers for a reasonable time until an ASD arrives and, if the police cannot be certain who was the driver, to sample everyone who might have been the driver. Clearly, laying a charge will require that there be reasonable grounds to believe one of the persons so tested was the driver. Such evidence may not however be available for some time because the police often must interview witnesses and victims.

ASD in non-RBT situations:

The current provision authorizing police to demand an ASD sample based on reasonable suspicion would continue for non-death and non-bodily harm cases where the police do not have an ASD at hand.

Possible RBT provisions:

Mandatory screening

(1) Where a person is operating a motor vehicle, a peace officer who has an approved screening device may, by demand, require the person to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of that device and, if necessary, to accompany the peace officer for that purpose.

Screening - collision

(2) If a peace officer has reasonable grounds to suspect that a person has operated a motor vehicle that was involved in a collision resulting in the death of another person, or in bodily harm to any person, the peace officer may, by demand, require that person to provide as soon as practicable a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

Collision - multiple potential drivers

(3) For greater certainty, if a peace officer cannot determine under subsection (2) which person operated the motor vehicle, the peace officer may demand a sample of breath from every person who the peace officer reasonably suspects may have operated the motor vehicle and, if necessary, to accompany the peace officer for that purpose.

Your views are sought on the random breath testing options.

Reasonable suspicion:

Currently, the Code requires that the police have reasonable grounds to suspect that a driver has alcohol in the body to demand an ASD test but must have reasonable grounds to believe that a person is committing an impaired or over 80 offence before demanding that a person submit to an approved instrument (AI) test. It is only the AI test that can be used to prove the offence in court.

The Ontario Court of Appeal in R. v. Stellato4 held that if the evidence establishes any degree of impairment ranging from slight to great, the impaired driving offence has been made out. However many trials have turned on whether the police had reasonable grounds to suspect the person was impaired based upon a minute examination of their observations of the accused's appearance, speech, steadiness on his or her feet and ability to find registration papers, etc.

Although RBT would assist by ensuring that the person must submit to the test where the police officer has an ASD at hand, the question of reasonable suspicion for an ASD demand will arise in cases where the ASD was not at hand. Therefore Parliament could be asked to consider specifying in the Code that in assessing whether the police had reason to suspect the person had alcohol in their body prior to demanding an ASD or Standard Field Sobriety Test (SFST), the court shall take into consideration the results of the AI test.

Your views are sought on specifying that a court must consider the BAC result on the AI when assessing reasonable suspicion to make an ASD demand.