Something that I hear as a DUI lawyer is that there are loopholes that I use to get my clients off their DUI charges. The people who make these claims are people who think that legitimate defences and police breaches of charter rights are in fact, merely legal loopholes that allow guilty people to go free.
So I wanted to answer the question in this blog post about whether there are really loopholes that can allow people to be found not guilty of impaired driving charges, and if there are, why those loopholes actually exist.
I would not be completely honest if I didn’t say that there weren’t things that really do seem like loopholes in impaired driving cases. But at the end of the day, they aren’t loopholes. And I’m going to explain why.
One of the biggest things that people often think about as a loophole in an impaired driving case is certain requirements that police officers have to provide certain types of paperwork in a particular form and fashion, and within particular timelines. These requirements vary based on the type of DUI case that you’re dealing with.
For example, if you’re dealing with a DUI case that involves British Columbia’s immediate roadside prohibition legislation, there is a statutory requirement that a police officer submit a sworn or solemnly affirmed Report to the Superintendent of Motor Vehicles within seven days of serving a notice of driving prohibition. But that requirement doesn’t exist just to create a loophole for the individual facing the prohibition. Rather, that requirement exists so that individuals who are facing these cases have the ability to know and respond to the case against them in a timely fashion.
And the requirement to have the officer swear or affirm the evidence was a constitutional consideration after the law was found to be invalid because it didn’t provide a proper mechanism of review. At the end of the day, when police officers are submitting reports, they are making an allegation that if prosecuted as a criminal offence would amount to a criminal offence, and so the requirement that they swear their report is a bare minimum and a constitutional safeguard.
You wouldn’t expect that if somebody was making an allegation that you disagreed with, that an officer could just say things without promising that they were true.
It’s not a legal loophole that a report be sworn; it is in fact an important part of any regulatory, judicial, or quasi-judicial review process. The importance of sworn evidence has been recognized in British Columbia by our Court of Appeal and recognized by the Supreme Court of Canada. It is evidence about which an officer is making a solemn promise or sworn confirmation that they are telling the truth, and their failure to comply with that obligation could lead to a criminal charge of perjury. It is effectively a safeguard against unjust actions by the police.
So a person having their prohibition revoked on the basis of the absence of a sworn or solemnly affirmed Report is in fact an important recognition of the fact that the officer wasn’t willing to promise that what they did in the case was truthful.
That’s not a loophole; that’s ensuring the integrity of the system at its core.
When it comes to criminal impaired driving cases, something as well that seems like a loophole but actually isn’t is the requirement for the prosecution to provide documents from the breathalyzer used to test the individual to ensure that the instrument was properly functioning.
And yes, there are requirements about certain things that must be included in this documentation and time frames in which this documentation must be served. And there are requirements about the form of the documentation. But at the end of the day, these documents are actually being filed in court as an alternative to having a witness testify. They allow a police officer who operated the instrument and conducted the testing to avoid being called to court and cross-examined about what they did.
Because they are essentially standing in place of the ordinary methods that we rely on in our judicial system to test that evidence is accurate, they need to be exactly right.
It’s not a loophole for the defence to say that these documents are not completed properly. Rather, the only loophole that actually exists in respect of these documents is a loophole that benefits the prosecution by simplifying the ability to prove the case against the accused. The only people in our legal system that benefit from what we would traditionally understand to be loopholes in impaired driving cases is, in fact, the police and the prosecution.
There are numerous loopholes that are written into the Criminal Code of Canada that permit prosecutors to avoid calling witnesses and not have to provide certain evidence to an accused individual or respond to particular disclosure requests because the government felt that too much time was being spent responding to people who were trying to obtain evidence that would allow them to challenge the reliability of their breath tests.
Being excused from proving the reliability of a piece of evidence is a loophole. Seeking evidence or pointing out flaws in existing evidence that goes to the reliability of either that evidence, the results obtained on the instrument, or the witness themselves is anything but a loophole. It is what our justice system demands: that people have the right to test and challenge the evidence. And where the prosecution benefits from shortcuts to avoid having to answer for their conduct, strict standards must be put in place in order to make sure that that evidence remains evidence that can be trusted and that has integrity.
When it comes to identifying defects in sworn reports or identifying defects in paperwork that police or prosecutors are relying on to avoid calling witnesses in court and approved breath or blood alcohol readings, it’s important to obtain legal advice from an experienced lawyer dealing with DUI cases. An experienced lawyer can identify whether there are any defects that would be fatal to the admissibility of these documents.
We have that expertise. We have that knowledge. And we are here to help in defending any impaired driving case, whether it is an immediate roadside prohibition, an administrative license suspension, or a criminal charge for DUI.