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.
If you read my firm's blog, you've probably read that we are consistently the top law firm in British Columbia for Immediate Roadside Prohibition for DUI cases. I wanted to write a short post breaking down some of the statistics over the past few months, so that people can better see the success that our firm has had, and in particular the success that I have had in defending these cases.
Frequently, clients who phone ask me who the best lawyers are to defend Immediate Roadside Prohibition cases. It's not uncommon for people to want to shop around to find the best person, at the right price. I wish that I could answer these clients with the statistical information, but it's impossible to do a hyperlink over the phone. So I'm providing the information here.
Over the last several months, numerous articles have been posted discussing the development of a marijuana breathalyzer. The theory is that through the miracle of science (or a complex technical formula the explanation of which is not relevant to this blog post) a sample of a person's breath will reveal the concentration of marijuana in their bloodstream. This is similar to alcohol breathalyzers, though the process by which the sample is analyzed and the marijuana detected is vastly different.
Many groups like MADD Canada have pushed for a mechanism of roadside testing for drivers suspected of being impaired by drugs. They see the development of these tools as a victory in the battle against impaired driving. But will a marijuana breathalyzer really help anything?
I say no.
In our law office, we deal with more roadside drinking and driving cases than any other law firm in the province. As a result, I probably speak with more people about drinking and driving in a month than many lawyers will in a year. I've come to realize that there are some very common and pervasive misconceptions about drinking and driving that exist in our province. This post will help to dispel a lot of those myths.
When you are pulled over and subject to an Immediate Roadside Prohibition investigation, you have the right to a second breathalyzer test at the roadside. This test is required to be conducted on a different device, and the lower of the two readings will prevail. The second test is sold to drivers by police as the mechanism by which they are entitled to challenge the results of the first test, and that they have nothing to lose by taking this. Well, that's only sometimes true. The second breathalyzer test is often a double-edged sword.
In May of this year, the Supreme Court of Canada heard arguments in two cases on the BC Government's Immediate Roadside Prohibition scheme. I was fortunate to be granted leave to appeal the decision in the Wilson case, and presented my argument to the court first thing that morning. The room was packed with lawyers who have more experience at this level than me, who had been practicing for years, and for many of whom it was one of many trips they have already made in their careers.
There were two cases being heard that morning - the Wilson case and the Sivia/Goodwin case. The second case was about the constitutional challenge to the IRP laws, while my case pertained to whether an officer has to have reasonable grounds beyond just the reading on the ASD in order to issue the prohibition.
In my last post, I discussed the changes to the BC Motor Vehicle Act that were underway. As expected, the legislation passed. Many of the changes the Government touted as positive have already come into effect, including the left-lane hog aspects of the changes. The Government made a big deal out of announcing this when it happened. But there were also changes slowly implemented that Government hasn't advertised to the public. These are the changes to the drinking and driving legislation.
Earlier this month, the BC Government announced big changes to the Motor Vehicle Act. These changes are currently in the process of being debated by the legislature. I expect that these laws will pass shortly, and we will see some significant changes to our DUI laws in British Columbia.
You may be wondering why you haven't heard about these changes. That's because the BC Government has been watering down the truth of what's behind this legislation. There are sweeping amendments to the Motor Vehicle Act, most of which are being sold the public as the changes to stop left lane hogs and finally eliminate AirCare. These are amendments that British Colombians want, so nobody is putting that much effort into looking behind what else is in Bill 15, the bill bringing about the changes.
What most people have not realized, however, is that these changes also include changes to the Immediate Roadside Prohibition legislation that are designed to make it impossible for applicants to succeed in the review hearings.
I recently had the opportunity to discuss some of the changes the I feel are the most sinister with InfoNews.ca in Kamloops. The changes pertaining to the BC DUI Laws are also outlined on the VancouverCriminalLaw.com blog. I won't go over them in detail here, but I do want to give a brief summary of the scariest ones. They are:
All of this is terrible. I also believe it is unconstitutional and I wholly intend to challenge this legislation at the first available opportunity.
When asked about the changes to the law, the Government does not want you or the opposition to see what they are trying to do. They try to explain away the changes as though they are positive. The focus when questioned by the media about the changes has been that the Superintendent will now be required to revoke a prohibition if the officer does not send in a sworn report in the first seven days. That's great, but according to two recent decisions that is already the state of the law in British Columbia.
Look no further than Hansard debates on the subject for evidence that the Government either fails to understand the implications of this law, or that they are trying to obfuscate their true intentions. When introducing this Bill, Suzanne Anton had the following to say about the parts that pertain to impaired driving law in BC:
The elements in this bill relating to road safety programs aim to improve the operational efficiency of the existing administrative review processes and allow for timelier resolution of reviews by the following.
Requiring the superintendent to revoke prohibitions on review if certain police documents are missing. This provision will help decrease delays during the review process.
Secondly, clarifying the general legal principle that in administrative matters, whoever asserts a proposition bears the burden of proving it. What this means for an IRP is that if an officer has complied with the statutory requirements and provided the required documents, then in a review the onus is on the applicant to prove one of the grounds of revocation.
Third, allowing the superintendent to obtain and consider other relevant information, such as an expert report or technical materials in a review. This will ensure that all relevant information can be considered, allowing the superintendent to make the most fair and informed decisions possible.
Lastly, enabling regulations to place page limits on an applicant's legal argument in an IRP review and establishing deadlines on the applicant's submission of argument and evidence in an IRP review. This provision will provide the applicant with a maximum amount of time to present a clear and concise argument while ensuring the superintendent has sufficient time to make a fair and timely decision.
That is simply not a true and accurate depiction of how the law will operate.
To say that the law clarifies the legal principle in administrative matters that whoever asserts a proposition bears the burden of proving it neglects exactly what has been done here. The officer is, by necessity, asserting the proposition that the individual served an Immediate Roadside Prohibition was a driver, blew over the limit, took a second test on a different device, and had reliable readings anytime an IRP is issued. And yet the Government appears to believe that so long as the officer provides the required paperwork, then they have proven that to be the case.
How absurd is that? What happens to the principle that "he who says it must prove it" when the officer is, in effect, given a baseline presumption of competence, reliability, accuracy, and proof. If you assume that the officer did everything correctly based on the fact that the prohibition was issued and the officer provided some paperwork, you erode the purpose of having a review mechanism.
In Administrative Law, that principle is supposed to function so that a person asserting a fact in a factual dispute must provide evidence to say that it is true. For example, in a residential tenancy dispute seeking return of a security deposit, the person seeking the deposit back must first prove that it is paid. There is no presumption of regularity that applies to all rental contracts where it is assumed that a proper security deposit was indeed paid to the landlord. What the government has tabled is not clarifying an administrative law principle. It is eroding one.
Allowing the Superintendent to obtain and consider other relevant information also erodes administrative law principles. If you were to look at the actual wording of the provision, the Superintendent only derives the authority to do this in response to the submissions of the applicant. That means that the Superintendent is allowed to seek out evidence to use to reject your submissions, and only for that purpose. That provision is not designed to help, but to hinder.
It is well-settled law that a person may not be investigator, prosecutor, and adjudicator in the same proceeding. To do so gives rise to a reasonable apprehension of bias against an applicant. But what is set out in this legislation accomplishes just that. Again, offending very basic principles of administrative fairness and a certain standard that we have come to expect and deserve as Canadian citizens living in a free and democratic society.
And the last part that the Government touts as a wonderful change to the legislation? Placing page limits on an applicant's legal argument. This violates another principle of administrative fairness: the right to be heard. It is impractical and unjust to tell a person that they may only present their evidence in the first instance in a certain number of pages. Many of my submissions to the Superintendent of Motor Vehicles end up being hundreds, even thousands, of pages. You will note that there is no corresponding limitation on how much evidence the police may provide for the hearing. How is it fair that one party can provide whatever they want and another is subject to strict limitations?
The answer is that it isn't.
This law is not fair. It violates administrative law guidelines, principles, and the constitution. It takes the Immediate Roadside Prohibition system back to a place worse than when it was first introduced and found unconstitutional. It has no place in a free and democratic society, and its flaws are revealed by the very fact that the Government does not want people to know what they are really trying to do with this law.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.