Yesterday was the 6th anniversary of Bill C-46, which amended the Criminal Code with respect to impaired driving provisions and other criminal driving provisions. This was meant to correspond with the legalization of cannabis in Canada. As you may recall, there was moral panic fomented by the Conservatives suggesting that there would be carnage on the roads when cannabis was legalized in Canada. They said that everybody would be driving around high. In BC, we mocked this assertion because people had been regularly using cannabis for well over 30 years, and it was not an issue. But that was the ostensible reason for the changes.
At the same time, the government snuck in a bunch of other more draconian or concerning provisions to the Criminal Code, which got a lot of attention at the time, such as mandatory approved screening device tests, lowering the threshold to at 80 milligrams in 100 millilitres instead of over 80 milligrams in 100 millilitres, a back-extrapolation formula that would allow them to take breath tests many hours after driving, and perhaps the most controversial of them all, that the offence now of at or over .08 was having that blood alcohol concentration in the two hours after driving. Bearing in mind this special date, we have a summary for you of the newest developments in impaired driving law.
Cannabis-Impaired Driving and Fear Tactics
Now interestingly, as we predicted, there has not been carnage on the road from cannabis-impaired driving. In fact, we are seeing no more frequency of drug or cannabis-impaired driving in Canada, despite the government having spent millions of dollars to train police experts and frontline police officers to screen for drug impairment. In our office, we deal with thousands of impaired driving cases, and what we have seen is that the Criminal Code provisions for drug-impaired driving are simply not being used in British Columbia.
We have defended a number of 90-day administrative driving prohibitions issued under the Motor Vehicle Act based on an allegation of detectible drugs in the driver’s body. This was one of the changes that the province made in the summer of 2019 to facilitate and line up with the changes made in the Criminal Code on December 18th, 2018. It seems the province made a decision that prosecuting drug-impaired driving cases was not worth their time and that the probability of success overall in these cases was so low that it didn’t make sense to charge people with drug-impaired driving. They changed the Motor Vehicle Act to allow the police to issue ADPs in drug cases.
In six years and thousands and thousands of impaired driving cases, we have had one cannabis-impaired driving case and a number of other drug-impaired driving cases, but every one has been in the context of a 90-day administrative driving prohibition. All of that doomsday discussion about legalizing cannabis in Canada was nothing more than a fear tactic, as we suggested.
Legislative Oversight on Driving Prohibitions
The most significant failure the government has faced with respect to their changes was a modification they made to the Criminal Code specifying the circumstances in which driving prohibitions or disqualifications can be issued in where there is a conviction for criminal negligence involving driving. It appears to be purely a legislative oversight, but the way that the Criminal Code was written does not allow for a driving prohibition in circumstances where a person is convicted of criminal negligence, including causing death, when driving.
Kyla Lee was approached by someone who wished to appeal their sentence when they were sentenced to a lengthy driving prohibition after being convicted of criminal negligence with respect to a driving offence. The lawyers who handled the case at trial were apparently unaware of the legislative change or hadn’t noticed that a driving prohibition couldn’t follow in such circumstances, and there was no clarity in the law at that point. Kyla filed an appeal at the BC Court of Appeal in a case called R. v. Francisco, 2023 BCCA 450 (link). Her argument at the Court of Appeal was that one must assume Parliament intended to make the change they did, and even if they made a mistake, they must be clear in what they write. The Court of Appeal agreed with her, and that was a substantive decision that affected cases across the country.
Another court heard a similar argument in R. v. Wolfe, which was further appealed to the Supreme Court of Canada and confirmed the ruling in Francisco. The R. v. Wolfe, 2024 SCC 34 (link) decision was recently released, and relying on the reasoning in Francisco, the court confirmed that under the current version of the legislation, a driving prohibition cannot be issued for conviction for criminal negligence involving driving. This was a significant defeat for the government and a victory for Mr. Francisco and Kyla Lee.
Immediate Roadside Prohibitions in BC
With respect to Immediate Roadside Prohibitions (IRP DUIs) in BC, the developments in the law slowed down but have not stopped. The primary concern or problem that we have is getting court time. There are simply not enough judges in BC Supreme Court, and although we have cases in the wings, we end up delayed sometimes for years before a hearing date is set. As a result, many people don’t want to go through the process because they’ve already completed their entire IRP, and it simply doesn’t make sense to fight it further. This is an unfortunate thing because the government is essentially thwarting considerations into the reasoning process that we see at the Superintendent of Motor Vehicles tribunal by not having enough judges.
Who is to blame? We don’t know but there are some improvements in the works as far as court scheduling is concerned, so we’ll keep you updated. Still, we have managed to get some cases into court, and one is now before the Court of Appeal, argued last Friday by Kyla. It’s an important case regarding conditions to mount an evidence-to-the-contrary defence in an IRP. We’re optimistic. The decision is on reserve with the court and it could change things significantly.
Mandatory Breath Testing Provisions
One of the most controversial provisions in the Criminal Code that came into effect on December 18th, 2018, was mandatory breath testing. Prior to this, a person pulled over by the police in a lawful stop could be subject to a mandatory breath test, but there were preconditions. The police officer needed to form a reasonable suspicion that the person had alcohol in their body before they could make a demand for a mandatory test.
The Supreme Court of Canada had previously spelled out the requirements to make such a demand because it was inherently unconstitutional to test someone without a warrant. The court said that despite the constitutional violation, it was acceptable pursuant to Section 1 of the Charter of Rights and Freedoms, provided that:
- There was a basis for the demand (i.e., reasonable suspicion),
- The demand and the tests were done immediately to minimize the violation of Section 10(b) of the Charter (right to counsel), and
- The results were not used in the criminal process except with respect to providing an officer with reasonable and probable grounds to take further steps.
The change to the Criminal Code created a new demand where a police officer could demand anyone provide a sample without reasonable suspicion, provided that:
- The police officer pulled the person over lawfully,
- Had an approved screening device breathalyzer with them,
- Made the demand immediately, and
- Took the test immediately.
To us and many others, this was a bridge too far. This was stepping beyond the limits set out by the Supreme Court of Canada and created circumstances where police could arbitrarily target people. Moreover, in British Columbia, the results of ASD tests are used to punish people by giving them IRPs, so the immunity that existed before the IRP scheme came into effect had been essentially eliminated in this context. This, to us, took it outside of the realm of constitutional validity.
Impact of COVID-19 on Mandatory Testing
Before any cases challenging the new mandatory breath tests got to court, something intervened that you all know: the COVID-19 pandemic. During the pandemic, it was unsafe for police officers to stick their faces close to people to try and smell an odour of liquor on their breath, which was one of the ways they were lawfully entitled to form a reasonable suspicion allowing them to make a suspicion-based mandatory ASD breath demand. Because of the risk of exposing themselves to a pathogen, it would not be safe for officers to stick their face close to someone to try and detect an odour of liquor on their breath. In that case, the only way to deal with the person was to make the new mandatory breath demand not based on reasonable suspicion. Covid was something no one had anticipated in 2018, and of course, it provided perhaps the most substantive argument in support of the new provision.
Simply put, in many cases, a police officer could not safely form the reasonable suspicion that had been necessary in Canadian law leading up to the legislative change. Nevertheless, someone did challenge it in Saskatchewan in what seemed to be a quickly put-together case, and the provincial court judge upheld the constitutional validity of the law itself. We would have approached it differently, but we did not have a case in our office because the police in British Columbia generally avoided using mandatory breath tests. Many police officers are still not comfortable with it.
Earlier this year, however, the police in Saskatchewan and Ontario made it a policy that every person they pulled over would be tested. Alberta had said they were testing everyone stopped for a traffic violation beginning in January 2019, but we are not certain that they consistently followed through with that.
Police Deskilling and Charter Violations
The most important development we have seen in the last few years with respect to impaired driving law in British Columbia is the deskilling of police. There are several factors behind this. Most important of them, in our view, is the use of IRPs and the fact that so many senior officers retired during COVID-19. To properly train police officers, they need experience with balanced, reasonable senior officers.
Junior police officers tend to jump to conclusions, operate on the assumption that everybody is guilty, and behave as bullies. Of course, every officer is different, but this is a common theme we’ve seen. More importantly, their police reports have become worse and worse, along with the quality of their investigations. Simply put, because of police officers are conducting IRP investigations and not facing the onerous burden of conducting a Criminal Code investigation, many of them don’t know how to conduct investigations any longer. They’ve lost the skills, or they never learned them.
When it comes time to go to court, many police officers cannot articulate the evidence or the steps they were supposed to follow and the steps they did follow were wrong. Courts used to warn police officers in decisions, stating they should know by now about Charter rights. The Charter of Rights has been in effect since 1982, but we now regularly see violations that didn’t exist for a decade such as police failing to take proper notes, failing to take proper steps, and, very often, dishonesty in police reports. This is concerning, although often useful for us in our defence of our clients.
It is rare now that police officers know what they’re doing when faced with a significant case such as one involving a bad accident. Very often they don’t do a good job. This, of course, undermines public confidence in the police.
Where things are headed
In one case in Ontario earlier this year, the judge complained about the increased number of Charter arguments being presented in impaired driving cases. This isn’t a good sign. Judges go to conferences and have meetings, and when we hear something like this we assume a higher court is going to make a ruling about this perceived problem. We have seen this before.
But then in Saskatchewan recently a judge lamented the intrusions of the government, the increasingly intrusive impaired driving laws and how the playbook has been re-written to reduce the presumptions of innocence and take away the evidentiary considerations from the court. Mandatory ASD demands give the police extensive power and we have seen many abuses of this power over the last six years.
Things change. As usual, we’re pushing back and we’re here to keep you updated about the newest developments in impaired driving law. If you are facing any police driving case, give us a call. We handle these cases everywhere in BC and the Yukon. Kyla Lee is the go-to impaired driving lawyer for those in the know and we will do everything within our power and skill to get you through this. Give us a call.