Or, as one lawyer interviewed put it, “if a first year student wrote this, they would fail.“
But let’s break down the Charter statement issue by issue, since the Government has so cleverly separated out all the Charter rights that will be violated by the proposed law. You’ll note that their position is not that the law doesn’t violate the Charter. Only that the law is justified in doing so. That immediately puts the position of the Government as one that is on the defensive, and weakens any ultimate position they may take in court.
So here we go.
Section 7 – the right to life, liberty, and chicken wings/security of the person
The Government takes the position that the law is not overbroad because there is an exception that is aimed at allowing people to argue that their consumption of alcohol between when driving ceased and when the breath samples were done was innocently done. I wrote about this proposed change last week. Not only does this analysis fail to consider the reality that it would violate both Section 7 and 11(c) in requiring a person to disclose information to police and to testify in court, but this analysis misses the heart of the issue, which is that the exception as drafted clearly captures people who are innocently consuming alcohol in any event.
If the purpose of the law is to prevent people from drinking to deliberately obstruct an investigation, why not write it so it specifically targets that? This is not impossible or even difficult. And everyone would support it. This, of course, is notwithstanding the fact that there is already the offence of obstruction of justice under which people are convicted in these circumstances. But instead the Government wants to create a law that is unnecessary and captures the innocent improperly within its ambit.
Moreover, the overbreadth issue is engaged by the fact that the Government is proposing lowering the BAC limit to 80 mg%. This was going to be the follow up to my post last week, but I’ll briefly touch on this now. The Government cannot just make something criminal if there is no good reason for it. There is a famous Canadian case about the criminalization of margarine (yes, fake butter was once criminal) in which the law was challenged and successfully struck down because it served no good public purpose. The Government has yet to introduce any compelling information that people at 80 mg% are causing carnage on the roadway, while those at 79 mg% are not. Over 80 has always been the standard, and now the Government is trying to lower it to “at or over 80” for no good reason. This is overbroad and unnecessary, and may violate the powers the Government has to even create criminal law in the first place.
I’ll write more on this in a future post.
As for bolus drinking – which is consumption of a large dose of alcohol in a short time span, often immediately before driving – the law already addresses this in a pretty reasonable way, as you will see if you click that link and read the BC Court of Appeal decision in R. v. Saul. And yet the Government suggests that this is “reckless, morally culpable” conduct. But while it may be reckless to one’s liver, we do not criminalize harming one’s own body in Canada. And if someone truly is not impaired due to the absence of an elevated BAC and the incomplete absorption of alcohol, then how is the conduct morally culpable? A person is now impugned as a criminal on the basis of drinking in such a manner that renders them not impaired and not over the limit? Engaging in conduct that did not result in danger to others
is now unlawful?
In British Columbia, we have a body of case law on the issue of abandoning the intention to drive. The BC Supreme Court ruled in a case called R. v. Martindale that, “As a matter of policy, people should not be discouraged from refraining to drive by pulling their vehicles over and stopping the engine if they consider that their ability to drive may have become affected by alcohol or a drug.” And yet, here, as a matter of what appears to be policy only, the Government has decided to criminalize that exact behaviour. Absurd.
The issue of using compelled statements to justify approved screening device demands does not ruffle my feathers as much. It comes up rarely. Generally speaking this only applies in circumstances where a person admits to driving after an accident and there are no witnesses to the collision. However, there is an overbreadth and self-incrimination issue that arises here that does trouble me deeply: provincial motor vehicle legislation, like the Motor Vehicle Act, may be amended to make more statements compellable, including information about the timing and pattern of alcohol consumption. As it stands, RoadSafetyBC uses the right to silence against drivers in review hearings, so there is a de facto compulsion to make statements about alcohol consumption.
Section 8 – the right to be secure against unreasonable search and seizure
The Government seems to take the position that random breath testing will be a-okay if the officer has an ASD “close at hand.” But “close at hand” is a statement that will cause as much litigation and hair pulling as the interpretation of the terms “forthwith” or “as soon as practicable” have caused all levels of court in this country. And, in any event, just because you can do something quickly doesn’t mean that it cannot violate Section 8. Police departments can easily address this by ordering an ASD unit for every officer. Just add it to the duty belt. And if an ASD is not close at hand, then the law implicitly authorizes a detention, contrary to Section 9, just to allow the officer to sit around waiting for one and gathering information to form a reasonable suspicion in the meantime.
I find that problematic.
The Government also takes the view that it can only be done in circumstances of a lawful traffic stop. The idea that a traffic stop must be lawfully done neglects the fact that almost all traffic stops are considered lawful, thanks to the broad and almost absolute authority police have to stop drivers for license, sobriety, and fitness checks. In an interview, Jodi Wilson stated that she saw this as applying only to roadblocks or traffic stops arising out of an offence, but not only is that inconsistent with the statutory authority in every province to randomly stop vehicles, but it is also inconsistent with the face of the law itself.
And is anyone else bothered by the fact that the Government is proposing a separate constitutional right for drug-impaired investigations, and fewer constitutional rights for alcohol-impaired investigations? Drug investigations using roadside screening techniques will, apparently, still require a reasonable suspicion standard. But it’s a lot harder to form a reasonable suspicion that there is a drug in the body than there is alcohol. And yet the Government appears to justify the law on the basis that it’s too hard for police to determine reasonable suspicion of alcohol in the body.
Read a few posts back and you’ll see that is not the case at all.
In justifying this, the Government takes the position that there have been decreases in crashes in other jurisdictions where random breath testing has been implemented. However, those statistics follow only the first year after implementation, when public debate and discussion create a significant deterrent effect. Then the numbers climb back up and exceed previous years. This phenomenon has been well-studied, and it is common to see reductions in specific areas of crime when harsher penalties are announced for the first six months to a year, before numbers reset. It is called the announcement effect.
We also see changes to the law allowing the police to obtain blood samples in two circumstances: where there is a death or bodily injury and a reasonable suspicion of alcohol or a drug in the body; and where the officer forms an opinion that the driver is impaired by a drug but does not want to do a DRE. I have too much to say about the blood sample to even get into it. But suffice it to say, if a person is in the hospital and in a condition that renders them incapable of consenting, the hospital takes blood for their own purposes and that can and routinely is seized by warrant. This aspect of the law is wholly unnecessary.
Section 11(d) – The Right to a Fair Trial
One way that Governments deal with laws being struck down as unconstitutional is by writing even worse laws to replace them. We saw this with the assisted dying legislation. We saw this with the prostitution laws. And now we see this as the justification for the Charter infringements found in St. Onge Lamoureux. Rather than allow a drunk driver the opportunity to challenge the inaccuracy of a breathalyzer (an all-too-real problem), the Government simply wants to make the breath test results conclusive proof of the BAC. This will eliminate the need to prove guilt, since it will now be assumed. And the Charter statement all but stops short of saying that. Reading this thing is sickening to anyone with a basic understanding of the Charter and its provisions.
The Government also justifies its assumption that people are always post-absorption and eliminating alcohol at the time of driving by stating that a conservative estimate of BAC elimination is most fair. I see no mechanism used by the Government to justify how it can simply assume people are eliminating alcohol when they are tested more than two hours after driving, and this does not appear to be consistent with any application of the fair trial or reasonable doubt provisions. Simply because you use a working number that is on a very low end of a spectrum does not make a law Charter-compliant. It simply makes the law slightly less stupid.
In law, there is a principle called “bootstrapping reasoning.” This is a form of reasoning that verifies its reliability by checking it against itself. In essence, the rationalization for something pulls itself up by its bootstraps. And that’s what the Charter statement’s characterization on the limitations on disclosure does. The Government assumes that eliminating the ability to challenge the breath test results by making them preemptively reliable will therefore justify infringing the disclosure right. Their justification is literally “because we did this we are justified in doing that.” Classic bootstrapping.
But hey – let’s watch the snake eat its own tail. The limits on disclosure are justifiable because the results are preemptively reliable which is justifiable because you cannot get disclsoure to show the results are not reliable.
From my read of what the Government has said to justify this horrendous and ill-conceived law, their arguments on the Charter challenge that I will inevitably file are not likely to withstand scrutiny by a court of reasonably educated, Charter competent judges. And thanks to the requirement that judges be lawyers first, our courts are filled with exactly those type of people.