Legislative Background: reforms to the Transportation Provisions of the Criminal Code (Bill C-46)
Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts
The Minister of Justice prepares a “Charter Statement” to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, for consistency with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review included consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-46 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.
Life, liberty and security of the person (section 7)
Section 7 of the Charter guarantees to everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
A criminal offence that carries the possibility of imprisonment implicates the right to liberty, and so must not be contrary to the principles of fundamental justice. These include the principles that laws must not be arbitrary, overbroad or grossly disproportionate. A law will be arbitrary where it impacts section 7 rights in a way that is not rationally connected to the law’s purpose. A law will be overbroad where it impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one where effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.
The right against self-incrimination has also been recognized as a principle of fundamental justice for the purposes of section 7. Although individuals are protected from testifying in court against themselves under section 11(c) of the Charter, section 7 can also protect individuals from self-incrimination outside the courtroom context in some circumstances.
The reworded offence for driving with a Blood Alcohol Concentration (BAC) “over 80”, as well as new offences for driving with prescribed limits on Blood Drug Concentration (BDC) and combinations of BDC and BAC, may engage section 7 and must therefore not be arbitrary or overbroad. A new provision clarifying the admissibility of compelled roadside statements may engage the protection under section 7 against self-incrimination.
Change to “over 80” offence
Clause 15 (new paragraph 320.14(1)(b)) rewords the current “over 80” offence to prohibit having a BAC at or over 80 mg/100ml within two hours of driving. This would be subject to an exception for “innocent intervening consumption,” meaning consumption that occurred after driving, where the individual had no reason to expect a breath or blood demand, and where the quantity consumed was consistent with a BAC that was below 80 at the time of driving. This would criminalize consumption of alcohol prior to driving in quantities sufficient to result in a BAC at or over 80 (“bolus drinking”), even where the BAC at time of driving may have not yet risen above the limit. It also criminalizes consumption after driving, in situations where an individual had a reasonable expectation that he or she may be required to provide a sample (for example, after an accident), and that may serve to obstruct investigation of the offence.
The following considerations support the consistency of this section with the Charter.
By criminalizing bolus drinking and drinking that may obstruct an investigation, the offence captures two categories of reckless, morally culpable conduct, the prohibition of which serves the Government’s objective of combating impaired driving. The definition of the offence in terms of BAC within two hours of driving and the “innocent intervening consumption” exception combine to ensure that dangerous conduct is covered while innocent consumption after driving is not captured.
Per Se Blood Drug Concentration offences
Clauses 1 and 2 create offences (new paragraphs 253(3)(a) and (c) respectively) for having a BDC above a prescribed limit, or a prescribed combination of BDC and BAC, within two hours of driving. These are subject to the same sentences as existing impaired driving offences. These clauses also create a “low Blood Drug Concentration” offence (new paragraph 253(3)(b)) that is punishable only by a fine of no more than $1000 and which would not count as a previous conviction for the purposes of minimum sentencing in impaired driving proceedings. These offences are, like the “over 80” offence, subject to an exception for “innocent intervening consumption.”
The following considerations support the consistency of these provisions with the Charter. As with the new “over 80” offence, the definition of the offence in terms of BDC/BAC levels within two hours of driving criminalizes “bolus consumption” and post-driving consumption that may obstruct the investigation of an offence. These are both categories of reckless, morally culpable conduct, the prohibition of which serves the Government’s objective of combatting impaired driving. As with the “over 80” offence, these offences have a carve-out for innocent intervening consumption, and so are tailored to exclude conduct that is unrelated to the objective.
Admissibility of roadside statements
Clause 15 (new section 320.31(9)) provides that a statement made by a person to a police officer that is compelled under a provincial Act is admissible for the purpose of justifying a roadside screening demand authorized by the Criminal Code. This has the potential to engage the protection under section 7 of the Charter against self-incrimination.
The following considerations support the consistency of this section with the Charter. While compelled statements under provincial highway legislation may not be used to prove an element of an impaired driving offence at trial, the same concerns do not apply where the compelled statement is to be used for the purpose of justifying an Approved Screening Device (ASD) demand. Officers should be entitled to use facts at their disposal, including compelled statements, for the purpose of establishing the reasonable suspicion required to make an ASD demand.
Searches or Seizures (section 8)
A number of provisions in the Bill have the potential to engage section 8 of the Charter, which protects against “unreasonable” searches and seizures. A search or seizure will be reasonable if it is authorized by a law, the law itself is reasonable in striking an appropriate balance between privacy interests and the state interest being pursued, and the search is carried out in a reasonable manner.
Rules surrounding roadside screening for alcohol and drugs, and rules surrounding breath and blood testing, govern searches and seizures and therefore implicate section 8 of the Charter.
Mandatory Alcohol Screening
Clause 15 (new section 320.27(2)) allows an officer to require a driver to provide a breath sample on an ASD if the officer has an ASD close at hand. Unlike the current framework, this provision does not require that the officer form a reasonable suspicion that the driver has alcohol in his or her body. Reasonable suspicion will still be required where the ASD is not at hand.
The following considerations support the consistency of this section with the Charter. The provision applies only if a person is otherwise lawfully stopped and provides lawful authority to interfere with privacy in a breath sample to further the important objective of enhanced road safety. The privacy interest in a breath sample in this context is low. The Supreme Court of Canada has recognized as reasonable the authority, under provincial law and common law, of police officers to stop vehicles at random to ensure that drivers are licensed and insured, that the vehicle is mechanically fit, and to check for sobriety. The information revealed from a breath sample is, like the production of a drivers licence, simply information about whether a driver is complying with one of the conditions imposed in the highly regulated context of driving. It does not reveal any personal or sensitive information and taking the sample is quick, and not physically invasive. A “fail” does not constitute an offence, but is simply a step that could lead to further testing on an Approved Instrument (AI, or “breathalyzer”), typically at a police station.
Eliminating the requirement that an officer form reasonable suspicion furthers the Government’s compelling objective. The evidence shows that, currently, police officers often face many challenges in detecting when drivers have consumed alcohol and so may fail to demand a breath sample. As new section 320.27(2) would authorize a police officer to make a demand without having to make inquiries into whether an individual had consumed alcohol, it would reduce the impact of this kind of human error. It also would increase the deterrent effect of roadside stops by eliminating the perception that motorists could avoid having to give a sample by hiding their impairment.
This approach has been introduced in a number of countries, including Australia, New Zealand, Ireland, France, Belgium and the Netherlands. Research in a number of countries demonstrates that it has contributed to a measurable reduction in accidents and deaths on roads and highways. For example, in Ireland, it has been credited by the Road Safety Authority with a 23% reduction in road deaths in the 11 months after introduction. In New Zealand, visible mandatory-screening checkpoints were credited with a 32% reduction in crashes. In the State of Tasmania, serious accidents declined by 24% in the first year after the introduction of Mandatory Alcohol Screening, while in Western Australia, fatal accidents declined by 28% in the first year.
Approved Screening Devices (ASDs)
Clauses 3(1)-(5) and 4 (new section 254.01) expand the use of ASDs to include devices that test bodily samples (for example, oral fluid) for the presence of drugs (“drug screeners”). An officer could demand that an individual submit to a test on a drug screener where the officer has reasonable grounds to suspect that the individual has a drug in his or her body. Any such screening devices would have to be approved by the Attorney General of Canada.
The following considerations support the consistency of this section with the Charter. Like the roadside alcohol screeners that are used under the existing framework, a drug screener is an investigative tool used at the roadside solely to help an officer determine if reasonable grounds exist to believe that an offence has been committed. It would not be used to prove the offence at trial. Like a roadside alcohol screener, a drug screener is a quick, non-intrusive search method that reveals information in which individuals have a limited expectation of privacy given the highly regulated highway context. The provision would require that an officer, before demanding a sample, have a reasonable suspicion that the individual has a drug in his or her body. This reduces the potential for unnecessary administration of the tests. The use of non-intrusive drug screeners subject to the existing framework for the use of ASDs represents a reasonable interference with privacy interests in service of the important purpose of detecting drivers who have consumed drugs.
Clause 3(5) (new paragraph 254(3.1)(b)) enables an officer to demand that an individual provide a blood sample if the officer has reasonable grounds to believe that the individual has committed an offence of driving while impaired by a drug, or of driving with a prescribed BDC, whether or not the officer makes a demand for a Drug Recognition Evaluation (DRE). This is a change from the current approach, in which a blood demand may only be made after a DRE. The DRE is a series of tests intended to determine whether an individual is impaired and, if so, by what substance. This is normally done at a police station.
The following considerations support the consistency of this provision with the Charter. The purpose of the change is to effectively enforce the new offences, which are defined in terms of BDC. The only way to prove a prescribed BDC offence using current technology is through a blood sample taken as close to the time of driving as reasonably possible. Obtaining a blood sample in a timely manner is therefore critical to proving these offences, since levels of a drug in the bloodstream can decline rapidly after consumption, particularly for smoked cannabis. This makes it essential to obtain a blood sample promptly, as soon as an officer has developed reasonable grounds to believe that an offence has been committed. The delays associated with the DRE would make it impossible in many cases to prove a prescribed BDC offence. Further, these delays cannot be compensated for by calculating the rate at which the BDC declines, since rates at which drugs are eliminated from the body vary widely based on a number of variables. The proposal is as tailored as possible given this constraint, in that it maintains the same threshold as the existing framework before a sample can be demanded, namely reasonable grounds to believe that an offence has been committed.
Warrant for blood sample where individual incapable of consent
Clause 15 (new section 320.29) provides that a justice may issue a warrant to obtain a blood sample from a person where the justice is satisfied that:
- There are reasonable grounds to believe that the person was involved in an accident causing bodily harm or death within the previous 8 hours;
- There are reasonable grounds to suspect that there is alcohol or a drug in the person’s body; and
- A medical practitioner is of the opinion that the person is incapable of consent and that the taking of the sample would not endanger the person’s health.
This replaces the current provision which uses reasonable grounds to believe that the person had committed an impaired driving offence. The time frame is also changed from 4 hours to 8 hours.
The following considerations support the consistency of this section with the Charter. Currently, a warrant is available in similar circumstances only where the justice has reasonable grounds to believe that the person has committed an impaired driving offence. The new approach will reduce the threshold to a reasonable suspicion standard in order to better serve the intended purpose of enabling investigation of impaired offences where a driver is unconscious and unable to consent to the blood sampling. In ordinary circumstances (i.e. where a driver is conscious), a police officer may administer an ASD or administer sobriety tests based on reasonable grounds to suspect that the individual has alcohol or a drug in his or her body. The ASD and sobriety test, along with observations, may be used to establish the grounds that are necessary to make a demand on an Approved Instrument, or a blood demand. In the case of an individual who is not able to consent, it is not possible to administer an ASD or a sobriety test. Accordingly, it is difficult to gather enough information to establish the grounds that are necessary to obtain a warrant. By providing that there need only be reasonable suspicion of alcohol or a drug in a person’s body, this provision ensures that investigations can proceed in such circumstances. The provision is reasonably tailored in that it still requires that an officer have reasonable grounds to believe that the individual was involved in an accident and that a medical practitioner opine that taking the sample would not endanger the individual’s health.
Trial Fairness and Presumption of Innocence (section 11(d))
Section 11(d) of the Charter guarantees the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
Measures that govern how a trial is conducted and that set out rules of evidence may in some circumstances engage the “fair hearing” and “presumption of innocence” rights protected under section 11(d).
Clause 3(8) (new subsection 254(3.6)) creates a rebuttable presumption regarding the link between the drug found in a person’s body and the signs of impairment observed by the arresting officer. Where a type of drug has been identified by an officer who conducted a DRE as causing impairment and where that drug type is found in a bodily sample, it will be presumed that the drug was present at the time of the alleged offence and was the cause of the observed impairment that constituted the alleged offence.
The following considerations support the consistency of this section with the Charter.The presumption reflects a logical consequence of observed facts, namely that the observed impairment was caused by the drug identified by the officer and found in the sample. It does not release the Crown from the burden of proving impairment or proving the presence of a drug. It is also rebuttable, meaning that the accused still has the opportunity to raise a reasonable doubt. The presence of other causes of observed impairment is also information that is uniquely within the knowledge of the accused and can be used to rebut the presumption.
Proof of BAC using Approved Instrument
Clause 15 (new section 320.31(1)) provides that, where two Approved Instrument tests have been performed, the lower of the two results will be conclusive proof of BAC at time of testing. Both tests must be performed at least 15 minutes from each other by qualified technicians in accordance with prescribed procedures and following an “air blank” check to exclude alcohol in ambient air. In addition, there must have been a calibration check with standard alcohol solution, and the tests must be within 20 mg of each other.
The following considerations support the consistency of this section with the Charter. This provision reflects the procedure that has been determined by the Alcohol Test Committee of the Canadian Society of Forensic Science to constitute proof, to a scientific standard, of BAC. Unlike the provisions that were struck down by the Supreme Court of Canada in R. v. St-Onge Lamoureux (2012), the onus remains on the Crown to prove the offence beyond a reasonable doubt, by proving that the accuracy of the devices was verified and that the tests were conducted in accordance with prescribed procedures. The requirement of a 15-minute delay eliminates the possibility that mouth alcohol could interfere with the result of the test. When these facts have been established, there can be no scientifically valid reasonable doubt as to whether the individual had a BAC above the limit.
As described above, the “over 80” offence is defined in terms of BAC within two hours of driving. New subsection 320.31(4) provides that, where testing on an AI is performed more than two hours after driving, BAC at the time of the offence (i.e. within the two-hour window) is conclusively deemed to be equal to the BAC at the time of testing plus 5 mg/100 ml for every complete 30 minutes between the expiry of the two hour period and the time of testing.
The following considerations support the consistency of this section with the Charter. The level of 5 mg/100 ml for every 30 minutes reflects a very conservative estimate of the rate at which alcohol leaves the bloodstream. In other words, there is scientific consensus that alcohol leaves the bloodstream at a rate significantly greater than 5 mg/100 ml per 30 minutes even in individuals who process alcohol slowly (other than in cases of near-complete liver failure that would ordinarily render them incapable of driving). Accordingly, a BAC calculated according to this provision will be lower than the absolute minimum scientifically possible BAC that an individual will have had within the two-hour window. It also maintains the onus on the Crown to prove the offence beyond a reasonable doubt, by combining the scientifically valid AI test with well-established scientific knowledge on the metabolism of alcohol.
Disclosure to the accused
Clause 15 (new section 320.34) provides that the Crown is only obligated to disclose listed materials that are relevant to determine whether the AI was in proper working order, and to determine the results of the AI tests. The accused may apply to the court for further disclosure if the accused believes that other materials are relevant to these facts. In addition to section 11(d), this may implicate section 7 of the Charter.
The following considerations support the consistency of this section with the Charter. The clarification of materials that are relevant is based on the fact that, as discussed above, the result of the AI test is valid and conclusive if conducted in accordance with prescribed procedures. Accordingly, only materials that relate to whether prescribed procedures were followed are relevant. This provision therefore tracks the Crown’s obligation to disclose all records that are relevant. The court also retains the authority to determine whether other records may be relevant, upon application by the accused for further disclosure.
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