What is a loophole?
A loophole is different from a defence. Wikipedia defines a loophole as “an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the intent, implied or explicitly stated, of the system.” The point of a loophole is to contravene the intent of a law, without technically breaking the law. Think of it as following the letter of the law, but not its spirit.
The proper application of the Charter of Rights is not a loophole. The Charter is the law. It’s defined as the supreme law of the country, and anything inconsistent with it is of no force and effect. Many reasons that impaired drivers are acquitted have to do with the application of the Charter of Rights to their cases.
The Charter of Rights and Freedoms
The Charter serves the public good. It is a check and balance on police powers of arrest, detention, search, and seizure. It ensures that people under arrest or investigation have the opportunity to contact a lawyer, and have a lawyer defend them in court. The trial process is kept fair and expedient because of Charter guarantees. All of this advances a public interest.
Charter breaches do not always result in evidence being excluded. Instead, judges have to perform a balancing function. They must ask whether the administration of justice is best served by the admission or exclusion of evidence. In this inquiry, the consider the seriousness of the infringement, the impact on the Charter-protected interests, and society’s interest in adjudication of the case on its merits. This third aspect looks at the reliability and importance of evidence.
The Charter is not a loophole. There is no loophole that allows evidence to be automatically excluded and results in an acquittal in an impaired driving case. People are found not guilty after a proper application of legal principles and a balancing of the evidence. This is a fundamental aspect of our justice system, and an expectation that all Canadian citizens living in a free and democratic society have. People who think of our justice system as a loophole by which impaired drivers are acquitted fail to understand and appreciate some of the best aspects of living in this country. Without the Charter, we might well be living in a police state. I am hard-pressed to believe that any of the people quoted in the article believe this is an ideal society.
Alcohol-Related Traffic Deaths
One of the problems identified by this article pertains to alcohol-related fatalities.
Impaired driving statistics are reported to Government by police agencies. It is the police who are responsible for reporting whether or not an accident, death, or injury was caused or contributed to by alcohol. In my view, there is a major problem with this manner of reporting. The police are not an independent source for this information. They are directly involved in the investigation, and are witnesses. The police are in the business of finding crimes, investigating them, and forwarding charges to the Crown. Police in British Columbia are also given awards based on how many impaired driving cases they are involved in. They are incentivized to determine someone is impaired.
I have spoken specifically to police and former police officers in both Canada and the United States about drinking and driving deaths. They have indicated to me that the practice is to gather information about accidents and report whether or not the accident was alcohol-involved. They have informed me that in determining whether an accident was alcohol-involved, the only criteria are the presence of liquor or a suspicion of liquor. I have been given examples of cases, such as one where a bag containing unopened liquor was found in the back seat of a crashed vehicle. These cases are reported as alcohol-involved, despite the fact that the alcohol did not cause or contribute to the accident. Another example given to me was one case in which an empty beer can was found in a ditch at the accident site. There was no evidence the beer can was connected to the accident, but regardless the incident was reported as alcohol-involved.
It is clear that reporting methods such as these create an inherent danger about false or misleading statistics. There are no prescribed parameters for police officers in reporting an accident as involving alcohol. It appears that making such a report is based solely on the discretion of the officer reporting the accident. This creates unverifiable statistics that have a danger of misleading the public.
Deceased drivers are tested for the presence of alcohol. If alcohol is detected, the Coroner may indicate that the death involves alcohol. Fault is not considered in the analysis. This would mean that if, for example, a sober driver runs a red light and strikes a driver with alcohol in his body, killing him, the death would be coded as alcohol-related. This is despite the fact that the death was not caused or contributed to in any manner by the involvement of alcohol.
The article also discusses drivers testing positive for alcohol. There is no indication what the blood alcohol level is. There appears to be no threshold level to qualify as alcohol-involved, which would mean that drivers who are at lawful blood alcohol concentrations, not violating any laws, are being identified as alcohol-related deaths. This is a problem, because the statistics therefore do not accurately represent what is occurring on the roadways.
One of the problems identified by the article is that the process for identifying and apprehending impaired drivers is “fraught with deficiencies.” The article then goes on to cite a particular study, claiming: One U.S. study estimated that about half of drivers over the legal limit of 0.08 blood alcohol concentration (BAC) went undetected at 156 sobriety checkpoints in North Carolina. More than 90 per cent of drivers between 0.05 and 0.08 per cent BAC passed through freely.
While the study citation wasn’t provided, or the method of collecting data and basing this estimation explained, the United States is not a fair comparison for detecting impaired drivers. Constitutional rights in the United States are vastly different than those here. Recently, a Florida lawyer’s DUI checkpoint video went viral, claiming that posting a sign on your window is all that is necessary. Drivers in the United States are in many states permitted to refuse to undergo standardized field sobriety tests, or take a roadside breathalyzer. In Canada, the consequence of refusing is the same as being convicted of impaired driving, and refusal is a criminal charge separate from impaired driving.
American drivers are often also not required to roll down their windows to discuss anything with the officer (something that would likely lead to an obstruction charge in Canada). Moreover, drivers in the United States are permitted to choose to avoid the roadblock without giving the officer grounds to stop them. In Canada, this will be a sufficient basis to stop and investigate. In many states, roadblocks must be advertised in advance, so that drivers can choose to avoid them. In fact, there is a list of guidelines that police have to follow for DUI roadblocks in the United States, which are as follows:
- The decision to do a roadblock must be made by a supervisor, not a field officer;
- A neutral formula must be used to select vehicles to be stopped, rather than leaving it up to the officer’s discretion;
- Primary consideration must be given to public and officer safety.
- The site should be selected based upon areas that have an identifiable problem with impaired driving.
- There are limitations on the length and hours of the checkpoint, focusing on minimizing intrusiveness and maximizing effectiveness;
- Clearly visible warning lights and signs should be used;
- Drivers should be detained for as short a time as possible;
- Advanced public notice is necessary to reduce intrusiveness increase its effectiveness.
Furthermore, constitutional law in the US prevents officers from pulling a vehicle over simply to check sobriety. There must be articulable cause to conduct a traffic stop. Since 1988, the Supreme Court of Canada has made it clear that while random traffic stops to check sobriety are constitutional violations, they are nonetheless permissible because they serve a public purpose. The Court expressly rejected the approach taken in the United States to putting limitations on these stops.
Random Breath Testing – Also an Unfair Comparison
Notwithstanding the legal opinion of the director of legal policy for MADD, random breath testing is constitutionally impermissible in Canada. It has been very clearly set out in Supreme Court of Canada decisions that a reasonable suspicion and demand-forthwith requirement is necessary to save what is otherwise constitutionally invalid law allowing police to use roadside breathalyzers. Such a standard would be as awful as New York’s stop-frisk policy, which allows police to detain and search pedestrians on virtually no grounds. No sooner would the policy be introduced in Canada, then it would be challenged.
As far as British Columbia is concerned, we are close to approaching random breath testing in any event. The Immediate Roadside Prohibition laws allow police to demand a breath sample and punish a driver on the basis of a roadside test. If you blow a “Warn” or “Fail” and the evidence reveals that the demand was not lawful, there is no remedy. Effectively, so long as a driver provides a breath sample, the police can get away with a random breath testing standard.
According to the article, Australia has random breath testing. And it’s supposedly very effective. But Australia isn’t a fair comparison. It is the only democratic country in the world without a Charter or Bill of Rights. Ireland’s constitution doesn’t have rights to counsel or rights to be secure against unreasonable search and seizure, unlike the Canadian Charter of Rights. Similarly, Germany’s fundamental rights do not prevent against random breath testing. The CBC article notes that the UK, Canada and the United States all do not have random breath testing. The list of personal liberties between all three countries is roughly similar.
Ireland also engages in other methods to curtail impaired driving. Some studies have shown that grouping social establishments where alcohol is consumed together or closer to residences will decrease impaired driving deaths. This method is adopted by Ireland. By reaching potential impaired drivers at the point of danger, the possibility that they will drive drunk will be curtailed. Moreover, in Ireland, a decrease in drinking and driving deaths has partly been attributed to TV and radio campaigns aimed at denouncing drinking and driving behaviour. None of that appears to be factored into a consideration of whether a drop in alcohol-related traffic deaths is properly attributable to random breath testing.
Another complaint made by those cited in the CBC article is that sentencing is not much of a deterrent. Truly, I find it ironic that the person who claims sentencing is not much of a deterrent is the director of legal policy for MADD, an organization which is trying to argue that mandatory minimum sentences will deter drunk driving. Not that it surprises me that MADD wants to have it both ways. I discussed the problems with mandatory minimums and impaired driving in an earlier blog post.
In my opinion, sentencing generally does serve as a deterrent. I believe, however, that the general deterrent effect for impaired driving cases is thwarted by the mere fact that alcohol reduces inhibitions and good judgment. If you’re intoxicated it’s simply less likely that you will think about the consequences of getting behind the wheel than if you are sober.
Hospital Staff and Loopholes
I think the most offensive part of this article is the reference to Dr. Brett Belchetz, who believes that doctors should be allowed to breach doctor-patient confidentiality in impaired driving cases. This doctor has the most limited understanding of impaired driving investigations, and someone should prevent him from spreading misunderstandings and untruths about the process.
Having represented many clients who have been involved in accidents, I can tell you that this so-called “hospital loophole” is a myth. While it is true that medical needs take precedent over drunk driving investigations, if a driver is under investigation he or she is not allowed to simply walk out of the hospital scot-free. Rather, police officers nominally arrest the driver, wait until after the treatment is complete, and then proceed with either breath or blood samples. If a driver cannot give informed consent to blood samples and is incapable or it is impracticable to obtain breath samples, the police can seek a warrant for hospital blood samples. They may also seek a production order or warrant for hospital records, to see if blood was drawn. The RCMP Laboratory will then test the blood and if the level comes back over the limit, the driver is charged.
It is very rare that police show up at the hospital after a person has already been taken there. Even then, warrants can still be obtained if the officer obtains grounds. And while Dr. Belchetz is concerned about a particular case where the driver refused blood samples, this is not common. In fact, most people involved in impaired driving incidents are greeted almost simultaneously by police and EHS. Further, EHS can and do contact police to request that they attend an accident scene. The evidence of EHS personnel is evidence that can be used to support an impaired driving charge.
The police also have other avenues of investigative techniques. For example, the Mr. Big Sting run on Carol Berner afforded evidence that supported the impaired driving charge. I have seen cases where police use social media (Twitter, Facebook, etc.) to find out the whereabouts of a driver prior to a collision, and then interview those people who were with the driver. This all then becomes evidence to prove the driver was impaired. Walking out of a hospital without blood samples does not in any way prevent the police from using other lawful and effective investigative techniques.
Finally, it is offensive to our privacy rights and the whole principle of doctor-patient confidentiality that this Doctor would even suggest such a thing. Doctors are supposed to be neutral in the process, concerned only with the care of the patient. This is part of the Hippocratic Oath: do no harm. The College of BC Physicians and Surgeons professional ethics code requires doctors to inform patients if their personal values interfere with that treatment. Doctors are also required to keep confidentiality, and refrain from making public statements that undermine confidence in that. So if Dr. Belchetz cannot disabuse his mind of the fact that the person he is treating is a drunk driver, and therefore entitled to fewer rights, including confidentiality, then he should take himself off the case. What he should not be doing is writing articles like these.
And in my opinion, he should not be practicing in an emergency room if he is so conflicted about a clear issue.
As a lawyer, I appreciate and understand the need for objectivity in representing my clients, as well as maintaining their confidences. Doctors have the same requirements. We might know where the bodies are buried (literally) but if we are not comfortable with representing someone in those circumstances our obligation to the client/patient is to remove ourselves from the case. It’s that simple.
Let’s Put the Blame Where the Blame Belongs
Even the article makes it clear: the best deterrent in drinking and driving is enforcement. The perception that you will get caught increases your likelihood to make other arrangements. Increased enforcement also ensures that those who do decide to drink and drive are detected. If the article should be blaming anyone, it’s not lawmakers or lawyers or those who find a “loophole.” It’s the police. If they aren’t out there apprehending drunk drivers, drunk drivers go undetected.
It really isn’t an issue of the police. They aren’t lazy. They are trying to do their jobs. But there needs to be funding for roadblocks, and a sufficient number of officers to conduct the roadblock. And officers need to be trained for what to look for in driving, so they know when to pull over vehicles for a sobriety check. Perhaps Dr. Belchetz should donate 20% of his paycheques to fund roadblocks and training. In the United States, these are largely paid for by grant money.
Maybe don’t blame the police. Blame government.
But don’t blame loopholes. There are no loopholes in drunk driving cases.
Journalism is supposed to be fair and unbiased. I was disappointed to read an article that really only represented the viewpoints of those strictly opposed to impaired driving. It would have been preferable for the CBC to seek out an opinion from someone on the other side of the issue. As it is, the article appears to advance the notion that there are loopholes that allow drunk drivers to get away, when this is not the case.