Reducing the carnage caused by impaired driving is something that we all can agree is a compelling, worthwhile, and noble government objective.  However, the manner in which the government seeks to meet this objective must be constitutionally sound.

The “toughest impaired driving rules throughout the world”, as proudly referred to by the Federal Government, took effect on December 18, 2018.  There are, in our view, four important issues with these new (and not so improved) driving laws.  First, they eliminate the requirement that a police officer must have a reasonable suspicion in order to demand a breath sample from a driver.  Reasonable suspicion is the long-standing Charter standard for warrantless searches.  Second, it is no longer just an offence to operate a vehicle while impaired – it is also an offence to be impaired within two hours after operating a vehicle. Third, and in relation to this new offence of “being impaired within two hours of driving”, the onus is reversed, necessitating the accused to prove his or her innocence.  Fourth, in regard to sentencing, the new laws double the maximum jail sentence for impaired driving to ten years.  This piece focuses on the first three concerns, all of which, at least on their face, give rise to Charter violations.

The abandonment of the reasonable suspicion standard prior to requesting a breath sample is concerning for a number of reasons.  Perhaps most notable is the fact that the threshold to establish a reasonable suspicion is already tremendously low; all that is needed to establish the reasonable suspicion justifying a breath sample request (i.e. warrantless detention and search) was the look of glossy bloodshot eyes or the sound of slurred speech.  When the constitutionally-compliant standard is already this modest, what is the purpose for disregarding it entirely? 

The ugly and unnecessary results of the abolishment of the reasonable suspicion standard have not taken long to arise.  On January 5, 2019, after recycling a number of empty beer and wine bottles (the result of a number of holiday gatherings) at a liquor store, a sober, 70-year-old man was pulled over by a police officer who asked if he had been drinking.  The police officer stated that the number of bottles the man had recycled looked like an “excessive amount” and demanded a roadside breath sample, which produced negative results.  This is exactly the kind of intrusive and arbitrary detention that the Charter – and the reasonable suspicion threshold for warrantless detentions and breath demand searches – is meant to guard against.

Second, section 253(3) now criminalizes having a blood concentration equal to or exceeding the limit up to two hours after ceasing to operate a motor vehicle.  The primary objective of this provision appears to be to frustrate the “bolus driving defence”, where the accused claims to have consumed the impairing substance just prior to getting behind the wheel so that the substance was still being absorbed at the time of driving, consequently leaving the driver below the legislated maximum at the time of driving. However, on its face, this offence now captures the individual who drives to the local bar to meet friends for some drinks with every intention of leaving the car behind and taking a cab home.  An officer, seeing the individual exit their car and enter the drinking establishment, can then demand a breath sample.  It is an offence to refuse.  It is an offence to be over the legal limit.  Not only is this new offence completely arbitrary, but it is no way rationally connected to the goal of frustrating the “bolus driving defence”.  

Just when you thought it couldn’t get any worse, when charged under section 253(3), the onus shifts to the accused to prove their innocence.  This is of course a substantial departure from the normal (and constitutional) requirement that the onus is on the Crown to prove the guilt of an accused beyond a reasonable doubt.  If upheld, individuals accused of this offence will likely be forced to testify, thereby undermining his or her Charter rights to silence.

The new laws represent a significant expansion of state power and contain significant violations of the Charter of Rights and Freedoms.  Abandonment of the “reasonable suspicion” standard is a prima facie infringement of both sections 8 and 9 of the Charter, which protect from arbitrary searches and detentions, respectively.  There may also be issues with respect to section 10(b) of the Charter, as the right to counsel is triggered on arrest or, in this case, detention.  To the extent that visible minorities are subject to greater random (ie. arbitrary) breath demands than individuals who are not of a visible minority, these new provisions could amount to a breach of section 15 of the Charter.  The reverse onus seemingly encapsulated by the new section 253(3) offence would clearly infringe section 7 of the Charter.  This is ironic, given that the last reverse onus provision deemed unconstitutional was that addressed in Oakes, which in turn gave us the proportionality test for determining whether Charter breaches can be justified under section 1.  Any offence that would seemingly require an accused to testify in their own defence raises concerns over the right against self-incrimination and the right to silence. 

The new impaired driving laws are a surprisingly broad expansion of police powers coming from a government who said that it would “always stand up for the rights of Canadians and [would] always respect the Charter of Rights and Freedoms.” But there are broader implications, too.  The inevitable Charter challenges to breath demands made without reasonable suspicion are bound to clog an already congested court system that is struggling to meet the demands of the post-Jordan world.  And what of those instances like the one faced by the 70 year old man outside the liquor store?  That breath sample demand was made in the absence of reasonable suspicion, and was likely unconstitutional.  However, because the man’s sample was negative and he was not charged, he is essentially left without a remedy for what was an arbitrary and unconstitutional detention and search.  His only recourse – a civil claim for declaratory relief or Charter damages under Ward – is unfeasible, for obvious reasons.  Given the absence of a requirement of establishing reasonable suspicion before demanding a breath sample, it is likely that negative results will outweigh positive results, with no meaningful remedy for those who have had their civil liberties infringed, and no meaningful way of curbing this expansion of police powers.

By Lauren Wihak and Brooke Johnson

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