New Impaired Driving Laws - Increased police powers; Decreased right to disclosure.

 

The federal government passed Bill C-46 and it has been coming into force over the last while. It is a companion piece of legislation to the Cannabis Act that made recreational Cannabis use legal in Canada. Bill C-46 deals with Cannabis drug impaired driving and related issues. But what is also in the Bill and has gone somewhat under the radar is that is also amends the criminal law in Canada relating to alcohol impaired driving.

A portion of Bill C-46 comes into effect in December 2018, just in time for the holidays. This portion of the Bill expands the powers of police to require drivers to perform a road-side breathalyzer test. Previously, the police needed to have reasonable suspicion that a driver had alcohol in their blood and was operating a vehicle before demanding that the driver provide a road-side breath sample. If the driver refused, they could be charged with the criminal offence of refusing to provide a breath sample. Under the new law the police no longer need reasonable suspicion to demand a road-side sample of breath from a driver, but can demand it from any driver at any time. In a nutshell, what this means is any police officer can pull over any driver at any time and demand a road-side breath test for no reason and if the driver refuses, they can be charged with the criminal offence of refusing to provide a sample.

 This is a vast restriction on the rights and freedoms of Canadian drivers. Over the coming years and months there will undoubtedly be numerous court challenges to the validity of this law. Hopefully those challenges will be successful as the potential for abuse of power by officers under this law is great and it erodes respect for the freedoms of Canadian drivers.

Interestingly enough, on October 26, 2018 the Supreme Court of Canada released their decision in the case of R v Gubbins (2018 SCC 44). The Supreme Court there looked whether the Crown needed to routinely disclose to accused persons the maintenance records of breathalyzer machines used to prosecute criminal impaired driving cases.

Normally the Crown has a duty to disclose to an accused person anything that is in their possession that is relevant and non-privileged. This is a fundamental principle relating to the accused’s person’s ability to make full answer and defence to any charge against them. An accused person need not make a court application to receive this information.

If the record or information is not in the possession of the Crown then the accused person must make a court application to ask that those records be produced and they must convince a judge that they are likely relevant to an issue at trial. In the Gubbins case the Crown prosecutors argued that the maintenance records for the breathalyzer test machines were not in their possession (because they were held by the police and a third party) and further that they were not likely relevant to an issue at trial.

In Gubbins, 8 of the 9 Supreme Court judges agreed that these maintenance records were not in the possession of the Crown and therefore an accused person needs to bring an application to the court to have them disclosed. They further found that in the context of that case they were not likely relevant to an issue at trial.

What this means practically for accused persons in Canada is that now they can be pulled over by the police for no reason, required under threat of criminal sanction to provide a breath sample  - even though the officer has no reason to suspect that they have been drinking alcohol -  and if they fail the road-side test and are taken to the station they will have to go through a lengthy complicated court application to have a chance to have the maintenance records of the breathalyzer machine disclosed to them. On top of that, at that hearing they will be facing a Supreme Court of Canada decision that has found that these records are not generally relevant.

If you’re starting to feel like the deck is getting stacked against the accused in this situation, so do we.

Until this new law is challenged and tested by the courts it will be a minefield for accused persons.

At Mines & Co we have experience in bringing applications for third party disclosure. We have had cases where we have successfully argued for this type of disclosure and when it was produced it resulted in the charges being dropped against our clients.