Presentation to the Senate Legal and Constitutional Affairs
On September 27, 2016, Paul Doroshenko of Acumen Law Corporation presented to the Senate Legal and Constitutional Affairs Committee with respect to a study the Senate is conducting on delays in Canada’s Criminal Justice system.
Paul went over time in his oral evidence. The entire presentation was provided in written form. We have reproduced Paul’s entire presentation below. Click here to download the PDF.
Delay in Our Justice System Arising from Developments in Impaired Driving Defense
Paul Doroshenko, Lawyer, Acumen Law Corporation
STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
Study on matters pertaining to delays in Canada’s criminal justice system
September 27, 2016
Metropolitan Hotel Vancouver
Thank you to the Chair and the Committee for inviting me to speak to you today about these important issues.
I am a criminal defense lawyer practicing in Vancouver, British Columbia. I handle cases in British Columbia and Alberta. I have been a lawyer since 2000. The focus of my practice is impaired driving cases. Since the introduction of the Immediate Roadside Prohibition scheme in British Columbia in 2010, I have been outspoken concerning the rights of those accused of drinking and driving.
I am speaking to you today about delays in criminal trials, how impaired driving trials have changed in recent years and the BC approach to controlling impaired driving. I hope to make it clear for you that recent changes in the process have had a significant impact on delay.
Impaired Driving Trials
Until 2008, the average impaired driving trial took one day for many impaired driving lawyers. Generally, there were one or two police witnesses and occasionally a civilian witness to some driving evidence. Defense lawyers with busy impaired driving practices like myself would schedule two to three trials of this nature a week. It was also common for many of these trials not to proceed on the day of trial.
Since 2010, the length of these trials has more than doubled. In my own experience and in my discussions with defense counsel and Crown prosecutors, two days is now the new normal for an impaired driving trial. How did we double the length of a trial in just a few years?
On July 1, 2008, a significant change to the Criminal Code came into effect with respect to presumptions in over 80mg cases. Before the change, defense lawyers could present evidence that their client’s blood alcohol level would not have been what was reflected in the breath test readings. This was known as “evidence to the contrary.” The change implemented in 2008 modified the Criminal Code to replace the “absence of evidence to the contrary” with a presumption of conclusive proof in absence of evidence showing three things: the test was performed improperly; the improper analysis is what put the reading over 80mg in 100ml; and the accused’s blood alcohol concentration did not exceed the legal limit.
There was nothing in the legislative change with respect to cases already before the court. This appears to have been an oversight. This issue took several years to resolve causing delays in countless cases already in the system.
In 2012 the Supreme Court of Canada ruled on the constitutional validity of these changes in R. v. St Onge Lamoureux, 2012 SCC 57,  3 S.C.R. 187. The Court narrowed the amendments to require only that the accused demonstrate that the test was performed improperly and that the improper operation of the Approved Instrument could cause an unreliable reading.
This raised interesting issues for defense counsel. Previously, very little disclosure was provided from Crown to defense regarding the operation and maintenance of the Instrument, and it was not something that anyone seriously investigated. Now defense lawyers had to consider what would be necessary to show that the breath tests were not performed properly.
Tests need to be performed on a properly maintained and properly functioning Instrument. The Technician must conduct a proper breath test. Defense lawyers now had to establish that the Instrument was not properly maintained, or appeared not to function as intended for some reason, or that the Technician failed to follow procedure to the letter, in order to defeat the new presumptions under Section 258 of the Criminal Code.
Evidence from the accused would almost never reveal this information. The evidence now needed to make full answer and defense was in the hands of the Crown, suppliers of the Instruments, and the companies that maintain the Instruments. As a result of this, there have been increasing demands from defense lawyers like myself for disclosure related to those issues.
The more I investigated this issue and turned up relevant evidence, the more I learned about what I needed to request and what could go wrong.
We are at the early stage in learning about problems with Approved Instruments.
What has been surprising to defense lawyers in the impaired driving bar is the number and types of problems with breath testing instruments. We had been all taught to believe that the breath goes into this essentially infallible box and what came out was reliable evidence. We forgot the lessons from the Wizard of Oz. Once we looked behind the curtain we started to get closer to the truth.
When St Onge Lamoureux was before the Court we were not yet focused on the functioning of the Instrument and Instrument operation. But by that point in my career, I had already taken note of enough problems with Instruments. I knew the amendments to the presumptions in the Criminal Code were dangerous in that some innocent people would be convicted of driving while over the legal limit.
In 2008, I obtained documents pursuant to the Access to Information Act concerning tests performed in RCMP labs on one model of Instrument. During the previous year the RCMP Forensic Science Services was investigating a problem that I had identified with the BAC Datamaster C Instrument. Among the material I received in response to my request was an email from Benny Wong at the RCMP Forensic Laboratory in Vancouver, discussing the problem I had identified. Mr. Wong wondered how many “innocent souls” had been convicted as a result of this problem.
The RCMP Forensic Science Services are relied upon to provide unbiased information. Nevertheless this is a government organization where there are consequences for not towing the party line. The party line included that Instruments are near to infallible and that the only information that is relevant about the breath test is that which is recorded on the breath test tickets. Some members of the RCMP Forensic Science Services have privately confided in me that they are not comfortable with that position.
We now see that this previously undisclosed information is necessary to prevent wrongful convictions. Moreover, even with access to this evidence about the Instrument, the safeguard provided by the old evidence to the contrary provision remains necessary to avoid wrongful convictions.
It is impossible to put the genie back in the bottle. Now that we are aware of the problems with Approved Instruments, Parliament cannot write a constitutionally valid law that renders the Instrument infallible. This increased demand for disclosure increases the demand on the trial system. Not only are pre-trial disclosure applications often necessary, but delays in obtaining the disclosure have also taxed the system.
Until very recently Crown did not have a proper system to obtain or provide information concerning the Instrument. It is only in the last few years has this become routine in British Columbia and Alberta. But even that is not enough; earlier this year in Alberta, hundreds of impaired driving cases were withdrawn because proper maintenance records could not be produced. Trial dates were set, but charges were not withdrawn until the trial, leaving that time unavailable for other bookings. These disclosure issues and poor management of them by Crown counsel have contributed to court delays. Indeed, this was one of the factors discussed in R. v. Jordan 2016 SCC 27.
Changes to Charter Litigation
Another factor that has contributed to the delay in cases coming to court is how Charter litigation has changed over the past few years. This is particularly evident in impaired driving trials, but has been an issue in all types of criminal trials.
Previously, defense lawyers needed only to show one meaningful Charter breach to have the breath test results excluded from evidence. This was due to the Supreme Court of Canada decision in R. v. Stillman  1 S.C.R. 607 that evidence that was conscripted from an accused flowing from a Charter breach should be automatically excluded. This made the inquiry under Section 24(2) of the Charter relatively simple: breath tests were automatically excluded, because they were conscripted by virtue of the Criminal Code demand and the threat of a refusal charge.
The trial process was straightforward using the Stillman approach. Defense lawyers could argue the Charter breach and the 24(2) analysis at the same time. The outcome was predictable if you could establish a breach. Cross-examination could be streamlined to deal with obvious Charter breaches, rather than explore areas of potential breach.
Since the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32, this process has become more complex. Now, defense lawyers need to focus on any possible areas of breach, and do more thorough cross-examination to show that a breach was particularly serious or to elicit evidence about the impact of the breach on the accused. This takes longer with witnesses. It also takes longer in argument. Defense lawyers and Crown now shy away from arguing 24(2) at the same time as arguing breaches, due to the fact that the number of breaches, and the seriousness of the breaches are now more significant in the consideration whether or not evidence will be excluded.
This has had an impact not only on impaired driving prosecutions, but also in all manner of criminal trials where Charter issues arise. It takes longer, and causes greater delays. Judges have also been more reluctant to rule off the bench, wishing instead to give thorough and considered reasons. For this reason, continuation dates and decision dates are often scheduled on top of original trial dates. Those continuations sometimes get cancelled after a decision in favour of the accused, but then they are too soon for trial scheduling to meaningfully use the court time.
The Immediate Roadside Prohibition Scheme
The BC Government considered this problem: how to eliminate court delays, eliminate Charter arguments and eliminate disclosure requests.
In British Columbia we saw our government reduce court delays by almost eliminating impaired driving prosecutions. The government essentially replaced impaired driving prosecutions with Immediate Roadside Prohibitions based on Approved Screening Device results. By creating this administrative scheme, the government essentially opted out of the Charter and Charter rights, opted out of any meaningful disclosure process and opted out of any meaningful test of the police evidence.
This has been a blow to our justice system.
Punishment on the basis of ASD results is dangerous and without precedent. There is nothing constitutionally valid about conducting a bodily search on the basis of a suspicion without use immunity. Here, we have no mechanism to challenge the validity of the demand if the driver provides a sample. ASDs are also far more fallible than the Instruments in the detachment. Routine maintenance is performed by officers, and significant issues with this process have been a common occurrence.
We have seen numerous occasions of officers improperly conducting calibration checks, falsifying information on calibration documents, using devices with a serious functional problem, and withholding disclosure so that we cannot identify problems with the devices.
This administrative scheme may appear on its face to be about saving lives. From my perspective it poses a long-term danger to our concept of justice in Canada. The real rationale seems to be to save the government money. There is no process to compel disclosure, and Charter rights are not something an adjudicator is authorized to consider.
Delays in BC’s Administrative Scheme
There are significant problems with the delay in this administrative scheme. Adjudicators are not legally trained, and so they are frequently extending the time to render decisions on the basis of the need to seek legal advice. Their seeking of legal advice has not always been for the right reasons. For example, in Attorney General (British Columbia) v. Lee 2016 BCSC 707, the RoadSafetyBC adjudicators were being directed toward particular outcomes in cases by their legal advisors and superiors. The only reason we learned of this information was because it was mistakenly disclosed to our office in a Freedom of Information request.
We have seen delays of over 3 years for clients to receive decisions. The administrative system is mismanaged. Recently, our office received a decision in a case from an adjudicator who has been retired for two years. It was clear enough that it was not her decision; this client, whose prohibition was revoked, waited two extra years because the backlog is so bad that files simply fall through the cracks.
Just a few months ago there were over 1000 people province-wide who had indefinite extensions of the time to render decisions in their cases. Many of these cases were eighteen months to two years old.
There is no remedy for delay in the administrative system. In Blencoe v. British Columbia (Human Rights Commission) 2000 SCC 44, the Supreme Court of Canada set the standard for prejudice by administrative delay to be so high as to be impossible to meet. Consequently tribunals are essentially authorized to delay rendering decisions without any repercussions for the government.
Creating an administrative scheme moved the delay to another forum. It reduced the Provincial Court case load substantially by taking those cases out of the system. At the same time it shifted the delay to the administrative scheme where there is no remedy to an individual suffering from the delay.
Worse still is that creating an administrative system also taxed the Supreme and Appeal courts. Those who are unsuccessful in their administrative decision have a right of judicial review in BC Supreme Court. In Vancouver particularly, there have been significant delays in having important administrative cases heard because of scheduling delays. There are not nearly enough judges to hear these matters, and the hearings often last a day or longer, requiring a significant amount of judicial resources. Again, the delay was simply moved to another forum.
Prosecution of impaired driving offences requires significant resources which is a burden to the criminal justice system overall. This burden was increased by the change to the presumptions in Section 258 of the Criminal Code which came into effect in July 2008. Simply reverting to the previous “evidence to the contrary” provisions will not greatly simplify the disclosure process because lawyers have now been witness to a sample of the problems that can exist with Approved Instruments. Nevertheless, reintroducing the “evidence to the contrary” provisions would reduce the likelihood of wrongful convictions.
Measures such as BC’s Immediate Roadside Prohibition program are not an answer to delay in the justice system. The delay in these cases is often as long as in criminal cases and there is no remedy for an individual wronged by delay in a case before an administrative tribunal. Moreover, the BC Supreme Court is now facing an onslaught of appeals from the tribunal creating delays in yet another forum.
Thank you to the Chair and the Committee for inviting me to share my views.
Paul C. Doroshenko
Acumen Law Corporation
210-837 Beatty Street
Vancouver, BC V6B 2M6
Twitter: @PaulDoroshenko / @VanCrimLawyer