Tomorrow the Supreme Court of Canada will be releasing reasons in a highly-anticipated appeal in the impaired driving world.
Richard Suter entered a guilty plea to refusal to provide a sample of his breath, after an accident causing death. He was having an argument with his wife, when he pressed angrily on the gas pedal. His intention was to hit the brake. His vehicle collided with a restaurant patio, striking several people and killing a small boy.
What is interesting about this case is that after Mr. Suter was arrested for impaired driving, he was given legal advice not to provide a sample. It is a criminal offence to refuse to blow, and this legal advice was incorrect. Mr. Suter nevertheless pled guilty, and sentenced to four months jail. On appeal, the Court of Appeal increased the jail term to 26 months. The issue on appeal was whether the incorrect legal advice gave rise to a mistake of law that ought to have allowed Mr. Suter a lighter sentence.
In a move that resembles what the Federal Government did with its overhaul of impaired driving laws, the Provincial Government has hidden some very disturbing changes to the alcohol-impaired driving provisions in the new law addressing cannabis-impaired driving.
Of course, the legislation was tabled with a variety of bills, all of which were designed to create a regulatory framework for cannabis legalization in British Columbia. So it was no surprise that the media did not notice or report on the surreptitious tweaks made to alcohol impaired driving provisions in the Motor Vehicle Act.
But I did. And I’m here to explain them, and why they are seriously problematic.
A few weeks ago, I wrote about how the Alco-Sensor FST manual was changed to support a certain unscientific and inaccurate belief about mouth temperature. My concern with any of this is, of course, the fairness of the Immediate Roadside Prohibition review process and whether drivers are given a reasonable opportunity to challenge the apparent results of their breath tests.
Sadly, today I learned of yet another change the Superintendent of Motor Vehicles has made to make the review process less effective and fair to drivers. I have to say, sometimes participating in this review process is like attempting to play a chess match with Death, except Death can change the rules of the game at any point.
A few months ago, I wrote about the awful amendment to the Motor Vehicle Act that allow the Superintendent to prepare their own material, under the guise of “technical materials” to determine cases. This material, pursuant to the legislation, is only to be used for the purpose of determining issues raised by the applicant.
The problem with the Superintendent being able to do this was that the Superintendent is then presumed to be an expert on issues which he is, frankly, not. At the time, I predicted that the Superintendent would simply rewrite science in order to advance the goal of upholding IRPs. And, unfortunately, I was right.
Today, I received word on an IRP hearing that the Superintendent would be relying on Technical Materials, including a new version of the ASD manual that was posted on their site today. I dropped everything to read this new version of the manual, and I saw something I expected to see.
Back in 1975, the Supreme Court of Canada made a groundbreaking decision on drunk driving. The decision was about the admissibility of breathalyzer test results presented in court. In this decision, the Court held that breathalyzer results, even absent evidence the breath sample was lawfully obtained, could still be used in court to convict a driver for being over the blood alcohol limit, with this caveat: as long as the driver did in fact provide a breath sample, and a certificate of analysis was admitted into evidence.
In plain English, what the court was saying is that if you provided a breath sample, even if the demand for the breath sample was unlawful, the results of that breath test could be used against you in court.
Since then, courts across the country have gone back and forth about whether that decision remains good law or whether it's absolutely bonkers that unlawfully obtained evidence is somehow still admissible in court.
Charter Statement on Drunk Driving Laws: A perspective from someone who routinely litigates the Charter
It's troubling when the Government has to issue a public statement defending a law before the bill is event tabled for debate. When the proposed legislation is so flagrantly and blatantly unconstitutional, the Government is clearly scrambling to justify its existence before it is even passed. And so that brings us to the big drunk driving law news of the week: Jodi Wilson's Charter Statement on Bill C-46. My summary opinion is this: it's a stinking pile of nonsense.
Or, as one lawyer interviewed put it, "if a first year student wrote this, they would fail."
In my last blog post, I wrote about how the Government’s proposed changes to the drunk driving laws will reduce your defences by limiting the disclosure that is available to you. This week, I am going to write about another significant limit on your defences, and that is the fact that the Government is eliminating the defences related to when you drank, and when you drove.
By eliminating this, what we can see is that the Government wants you to have a criminal record for drinking and driving, even if you have done nothing wrong.
Canada’s so-called legalization of marijuana comes with several consequences, including the new framework for mandatory random breath testing roadside. But there are other significant consequences that still need to be unpacked in this legislation.
Today’s blog post is going to outline a few of the other problematic changes to the alcohol-impaired driving legislation, and particularly those that have received less attention. In this post, I am going to deal with one of the other significant changes: reducing the number of defences available to drivers. This will be part one of a two-part blog post on reducing the defences, as there is a lot to discuss here.
On Thursday, the Liberal Government revealed its plan for marijuana legalization. Surprising to many was the fact that the Liberals introduced this as part of an omnibus bill that makes amendments to other parts of the Criminal Code, including the impaired driving legislation. Omnibus bills were commonly criticized by them as tactics used by their predecessor to pass bad legislation. These proposed changes also hide some of the more disturbing aspects the Government has introduced in furtherance of its stated goal to legalize marijuana.
I am deeply disturbed by changes that the Government has proposed, in particular the proposal to conduct random breath tests of drivers.
Over the next few blog posts, I am going to share some of my views on this proposed legislation and why I believe it to be constitutionally deficient.
This past week, the Middelaer family is again in the news. Not only were the announcements made about the winners of the Alexa's Team Awards - a foolish way to encourage sloppy policing - but Alexa's Bus was processing impaired drivers over the weekend. Or so the Government would have you believe.
If the British Columbia government spent $300,000 on a Skytrain line that was never used by passengers, citizens would be up in arms about irresponsible government spending. If they fundraised the $300,000 for the Skytrain, and then paid taxpayer money to staff it, maintain it, and ensure that it was functional and operational, the public would be furious.
The same situation exists for Alexa's Bus.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.