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.
Evidence to the Contrary
In 2008, the Criminal Code underwent significant amendments related to the impaired driving laws. These amendments removed a defence called “evidence to the contrary” which was also known as the “Carter defence” after the first successful case in which it was run. Essentially, until 2008, a person could testify that what they drank was not consistent with the breathalyser readings and raise a reasonable doubt about their blood alcohol level.
After 2008, however, things changed. The Government limited the defences significantly. Either, you had to show that your blood alcohol level was below the limit, and that it was only above the limit by either alcohol consumed after driving or in close proximity to driving so that it would produce the reading on the breathalyser. Alternatively, you could show that your blood alcohol level was below the limit and only increased to the over the limit amount as a result of an improper function or operation of the breathalyser.
These changes were challenged almost immediately, and by late 2012, the Supreme Court of Canada ruled. The law was found unconstitutional in part.
One of the two cases that advanced these defences was a case called R. v. St-Onge Lamoureux. There, the Supreme Court of Canada found that it was inconsistent with the principle of reasonable doubt and the presumption of innocence that an accused person had to show that the improper operation or functioning of the breathalyser put them over the limit, and that they were not over the limit. Instead, they ruled that you only have to show that there was improper functioning or maintenance and that is enough to raise a reasonable doubt.
Importantly, the Supreme Court of Canada accepted that the problems with respect to the functioning of the instrument may not always be something that is based in evidence an accused person can get, or knows how to get, and they accepted that human error and malfunction are very real possibilities, such that improper analysis may very well lead to unreliable results. This has been endorsed recently in the BC Supreme Court.
Obtaining maintenance records for breathalysers has been something that has led me to my success in defending Immediate Roadside Prohibition cases. We have discovered countless instances of improper maintenance or functioning of breathalysers and often have only been able to obtain this information by sending Freedom of Information requests and digging for it.
I have learned that many innocent people have unnecessarily faced the consequences of sloppy police work in breathalyser maintenance. Shamefully, I have not had the time to do the same investigative work when it comes to the breathalysers used at the police station. Thankfully, as the law stands now, it is possible to obtain historic records for the particular instrument through the disclosure process in court. So the investigative work is not necessary.
So one of the amendments the Liberal Government has announced is particularly troubling to me. In my view, it will only result in the innocent being wrongly convicted, and is designed to prevent the right to make full answer and defence.
What the Government intends to do is limit access to breathalyser records to only those contemporaneous with the testing. So the annual maintenance that was done after you provided breath samples, showing that the fuel cell (the thing that analyzes the alcohol content) needed replacement? No longer entitled to it. That record of the service call because the five-way valve that separates alcohol from your breath from alcohol from the standard? No longer entitled to it.
Inherently this is problematic and unsatisfactory. The Supreme Court of Canada has ruled a long time ago that your Charter right to life, liberty, and security of the person includes the right to make full answer and defence in a criminal trial. This means you are entitled to complete and timely disclosure. To me, it seems a significant violation of Section 7 rights to say that a person simply cannot have a piece of disclosure by writing a legislative provision.
While I can appreciate the government’s position that some disclosure requests are fishing expeditions, this is not always the case. In impaired driving trials where a blood sample is taken, I typically send a disclosure request that is about three pages long. Inevitably, in the blood disclosure that I obtain I find some problem in the analysis that reduces the scientific accuracy of the results. To the untrained eye, a disclosure request may seem like a fishing expedition, but to those like myself who know how to interpret the material, it is anything but.
There have been countless cases where reviewing this disclosure and reviewing the disclosure we request related to breathalysers has helped me find defences. I’ve seen cases where the instrument prints off documents it is not supposed to print, cases where it does not print documents it is supposed to print, cases where it was left in calibration mode, cases where it was giving clearly inaccurate and falsely elevated readings for no explainable reason, and thousands of other problems.
It really seems that although the Government wants people to think that breathalysers are infallible (a proposition the Supreme Court of Canada rejected in St-Onge) the more we dig the more their fallibility is shown. And so the Government wants to limit the ability to access this information in criminal trials in a way that is reminiscent of the Wizard of Oz. Pay no attention to the man behind the curtain.
Further, where is the harm in allowing access to this material? Certain US states publish their breathalyser maintenance records online for anyone to download. This means that the disclosure is freely available, and people can make full answer and defence without obstruction. This seems far more sensible than disallowing disclosure.
The rationale, as I can discern from interviews with the Justice Minister, is that these disclosure requests create delays in getting cases to trial. But this is simply not borne out in reality. Yes, there were significant problems in Alberta following a ruling in a case called R. v. Kilpatrick. But that was largely because the maintenance records were not being kept properly, and it could not be established that the necessary maintenance actually occurred.
In British Columbia, we had a case called R. v. Phagura, which ruled certain historic breathalyser records were necessary to enable an accused to make full answer and defence. Some trials were adjourned for a brief period of adjustment, but now this disclosure often comes in the initial package as police and Crown are used to providing it. So the delays are a red herring.
Further, bad laws like this only increase court delays. The changes in 2008 led to numerous cases being heard in various stages, held in abeyance, and delayed as a result of a decision to wait for the challenge, which was largely successful. Bad laws create more court delays than they resolve.
By eliminating the right to this disclosure, the Government is inherently limiting defences. It is designed to get around the St-Onge Lamoureux ruling, by passing what is blatantly another unconstitutional law, and will also not likely withstand scrutiny. The constitutional threshold for disclosure is relevance: the Crown is obligated to disclose all relevant material. And problems with breathalysers, given Section 258 are clearly relevant and have been accepted as such by the Supreme Court of Canada.
The United States is far ahead of us in using breathalyser maintenance to show problems in impaired driving cases. We see numerous challenges there as a result of historic maintenance records. If we pride ourselves on having one of the best and most effective legal systems in the world, we need to live up to that reputation by allowing access to relevant material and not restricting it.
Part and parcel of the constitutional challenge to the omnibus bill targeting drunk drivers and not aimed at legalizing marijuana will be to these restrictions on the available disclosure. I do not believe that courts will look kindly on government preventing people from obtaining necessary and relevant information only a few years after the Supreme Court of Canada has said malfunction and improper operation are very real concerns.
The sad thing is that if “legalization” of marijuana had been proposed in a more reasonable way, the Government might have been able to slip all this through. But that’s a blog post for another day.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.