JURI Committee Report
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CHAPTER 6: POLICE POWERS
During the course of this review, the Committee was told that justice system personnel encounter significant difficulties in the investigation and prosecution of impaired driving offences, and that those difficulties need to be addressed by amendments to the Criminal Code. This chapter of the report will review the solutions to those problems, as suggested by participants in the review process and recommend an appropriate legislative response where required.
Subsection 254(3) of the Criminal Code allows a police officer to demand a breath or blood sample where the officer suspects that a driver has committed an impaired driving offence within the previous two hours. If the first of two samples is taken within the same two-hour time frame and other specific requirements are met, paragraphs 258(1)(c) and (d) provide that the analysis results constitute proof of the suspect's blood alcohol concentration (BAC) at the time he or she was driving. The Committee was told that the two-hour limit for that presumption is based on scientific knowledge about the rate at which alcohol is eliminated from the human body. Because of decreasing confidence in the results of any analysis done after the two-hour period, the legal presumption does not apply and it becomes necessary to have the evidence of a toxicologist to interpret the BAC at the time of driving.
The Committee was told that it is not always possible for police to comply with the two-hour limit. For example, where a suspected impaired driver has been involved in an accident, police may not arrive at the scene until after that individual has already been taken to hospital. Similarly, if a police officer has to summon emergency personnel for seriously injured individuals, that officer may not have the opportunity to form the necessary reasonable and probable grounds within the two-hour limit. Several groups told the Committee that police officers should have three hours after the alleged offence to do so1 while others felt that four hours would be a more appropriate time frame.2
The Committee accepts that there may be instances where reasonable and probable grounds for making a demand for a breath sample cannot be formed within the existing two-hour time limit. For that reason, we agree that the two-hour limit in subsection 254(3) should be increased to three hours, even if that means that expert evidence will have to be called in order to establish impairment at the time of driving. In more serious cases, the police and Crown Attorney may well be prepared to go to that extra trouble.
RECOMMENDATION 11
The Committee recommends that subsection 254(3) of the Criminal Code be amended to allow a police officer to demand a breath or blood sample from an individual on reasonable and probable grounds that he or she has committed an impaired driving offence within the preceding three hours.
Passive alcohol sensors are similar to screening devices in that they use the same type of technology, although the device is simply pointed in the direction of the suspect and does not require his or her cooperation. In the event that the sensor detects the presence of alcohol in the vicinity of the driver, that may provide the investigating police officer with the reasonable suspicion needed to make a screening device demand. The Traffic Injury Research Foundation and Mothers Against Drunk Driving both urged that amendments to the Criminal Code be made to authorize the use of passive alcohol sensors. The Canadian Police Association also asked the Committee to examine the issue to determine whether these devices could be a useful enforcement tool for police.
However, representatives of the Alcohol Test Committee of the Canadian Society of Forensic Science were concerned about the limitations of these devices, which may, for example, detect the breath alcohol of a passenger. Because the additional technology could simply complicate the process, it was suggested that screening devices might prove more useful in the long run.3 At the same time, the Government of Ontario expressed the view that more research is required to determine the effectiveness of passive alcohol sensors prior to any Criminal Code amendments to authorize their use.
The Committee agrees that legislation authorizing the use of passive alcohol sensors would be premature at this time.
TESTING FOR IMPAIRMENT BY A DRUG
As noted in Chapter 2, subsection 253(a) of the Criminal Code makes it an offence to operate a motor vehicle while the driver's ability to do so is impaired by a drug. However, police powers for obtaining evidence of such an offence are very limited, especially when compared to situations involving a suspected alcohol-impaired driver. In fact, a police officer has no authority under the Code to demand that a suspect provide evidence in the form of a bodily substance, for the purposes of drug testing, even if there are reasonable and probable grounds to believe the suspect is impaired by a drug. A demand for an approved screening device test must be supported by a reasonable suspicion that there is alcohol in the suspect's body.4 Likewise, a demand for an evidentiary breath or blood sample requires reasonable and probable grounds to believe that a section 253 offence has been committed "as a result of the consumption of alcohol."5 Only subsection 258(5) authorizes testing for drugs and then only if blood has already been obtained for alcohol testing, through a section 254 demand or a section 256 warrant.
The Committee was told that the extent of drug-impaired driving in Canada "has been well underestimated because of the handicap that the present law puts on the police officer."6 According to the Drugs and Driving Committee of the Canadian Society of Forensic Science, "there is no question that drugs do play a contributory role" in fatal motor vehicle accidents, even though the presence of drugs in impaired driving is much less frequent than the presence of alcohol.7 The lack of authority for police to make a demand for drug testing was a concern raised in a number of submissions. For example, the Canadian Automobile Association, the Canadian Bar Association, the Government of Ontario, and several others called for the expansion of police powers to allow a demand for drug testing. However, because the presence and concentration of alcohol in the body is much easier to detect and measure, an equivalent roadside screening test for drugs may not be feasible.
The Committee heard a variety of suggestions for detecting and prosecuting drug-impaired drivers. For example, the joint submission from the Addictions Foundation of Manitoba and Winnipeg Police Services recommended implementing a "Drug Recognition Evaluation" (DRE) program, that would provide police with the training necessary to recognize impairment caused by drugs, coupled with the authority to compel cooperation from suspect motorists.8 Crown Counsel Roger Cutler also advocated Drug Recognition Expert training for police, along with authority to compel a suspect to provide saliva samples for testing at the roadside. Others, like the Ontario Government and Crown Counsel Andrejs Berzins, were in favour of police powers to demand a blood sample based on reasonable and probable grounds to believe that a motorist's ability to drive is impaired by a drug. Finally, the Committee was told that the 1998 Uniform Law Conference adopted a resolution calling for amendments to section 256 to allow telewarrants for blood testing where the police have reasonable and probable grounds to suspect that a driver is impaired by either alcohol or a drug. As noted in Chapter 2, section 256 allows a justice to issue a warrant for a blood sample to be taken from a suspect who has been involved in an accident resulting in death or bodily harm and who is unable to consent to the taking of the sample.
The Committee understands that drug-impaired driving is criminal behaviour that may well be increasing and can be difficult to detect. Furthermore, even when it is suspected, existing Criminal Code provisions are of little assistance in obtaining the kind of evidence necessary for successful prosecution of a drug-impaired driver. However, Committee members are also concerned that the methods suggested for addressing the problem may raise more questions than they answer. For example, any Criminal Code amendments expanding police powers to demand evidence from an accused would presumably have to be based on "reasonable and probable grounds" to believe that the offence had occurred. A number of recommendations were made for codifying the requisite reasonable and probable grounds for making such a demand, including a BAC reading below 80 mg/100 ml of blood in conjunction with other objectively verifiable signs of impairment. Without some legislative guidance on what would constitute those grounds, Criminal Code authority to demand testing could be very difficult to implement, especially if the intention is to make refusal to comply a criminal offence.9 The situation is further complicated by the apparent lack of a single non-invasive test for detecting the presence of drugs that could impair a driver, and by the fact that a blood sample may well be required to arrive at a sufficiently accurate measure of the quantity of drug(s) involved and the resulting level of impairment.10
The Committee was told that a Drug Recognition Expert (DRE) program is currently operating in British Columbia. Under this program, first developed in the United States, police officers are trained to assess the physical appearance and behaviour of suspected impaired drivers, in order to determine whether they are under the influence of a drug and, if so, to identify the class of drug involved. These specially trained police officers are also expected to recognize symptoms that are more likely caused by medical condition or injury, so that any necessary medical care can be sought. While DRE training appears to offer a number of advantages, the Committee notes that the provinces have control over and responsibility for the type and level of police training in their respective jurisdictions.
Concerns about the drafting of Criminal Code provisions that would give police the power to demand bodily samples for drug testing are further compounded by the need to weigh the Charter implications of suggested amendments. For example, the DRE program and blood sample demands would require an accused to assist the police in gathering evidence against him or her in a manner arguably much more intrusive and time consuming than tests now used to detect alcohol impairment.
For all of the foregoing reasons, the Committee is unable at this time to recommend specific Criminal Code reforms to enable drug testing, other than the aforementioned amendment to section 256 that was recommended by the 1998 Uniform Law Conference. However, we are persuaded that police require broader powers to better enable them to combat drug-impaired driving and that the development of more effective laws will require extensive consultations with the provinces and territories. Lacking sufficient time and resources to conduct those consultations during the course of its review, the Committee encourages the Minister and Department of Justice officials to meet with provincial and territorial representatives to develop legislative proposals for obtaining better evidence against suspected drug-impaired drivers.
RECOMMENDATION 12
The Committee recommends that section 256 of the Criminal Code be amended to allow a justice to authorize the taking of a blood sample for the purposes of testing for the presence of alcohol or drugs, based on reasonable and probable grounds that an impaired driving offence has been committed, as a result of the consumption of alcohol or a drug.
RECOMMENDATION 13
The Committee recommends that the Minister of Justice consult with the provinces and territories to develop legislative proposals for obtaining better evidence against suspected drug-impaired drivers.
At present, only screening devices can be administered at the roadside, on the basis of a reasonable suspicion that a driver has alcohol in his or her body. Failure by the driver on the roadside screening device can then provide the requisite reasonable and probable grounds to demand that a breath sample be given into an "approved instrument".11 The reading of an approved instrument can be attested to by certificate and form the basis of evidence against the accused person in court. There are apparently limited conditions under which an approved instrument can be used that prevent a test from being administered in a police car, for example. Instead, the suspect ordinarily must be taken to the approved instrument and the Committee was told that it can take a considerable amount of time to transport the suspect back and forth and either administer the test or wait for it to be administered.
In order to assist the police in enforcing the impaired driving provisions and reduce the time required to gather evidence, the Committee was told that the Criminal Code should be amended to allow for roadside breath analysis with an approved instrument. Mothers Against Drunk Driving referred to these as "mobile digital breath-test units."12As an alternative, the Canada Safety Council argued that the results from roadside screening devices should be admissible as evidence in court.
On the subject of roadside evidentiary testing, representatives of the Alcohol Test Committee of the Canadian Society of Forensic Science cautioned the Committee that there are approved instruments that could be used at the roadside but they would still be subject to applicable operating criteria and quality-control standards.13 The Government of Ontario stated that it does not support the use of mobile test units for evidentiary purposes at this time because "Ontario is not aware of a device that would perform satisfactorily given uncontrolled field conditions and the way the current roadside screening devices are calibrated."14
Given those reservations concerning the state of the available technology, the Committee believes that it would be premature to legislate the use of mobile test units at this time.
TESTING DRIVERS INVOLVED IN INJURY-RELATED COLLISIONS
A number of participants in the Committee's review process advocated giving the police legislative authority to demand a breath or blood sample from any driver involved in an injury-causing collision. In order to exercise that power, police would not need reasonable and probable grounds to believe a driver was impaired at the time of the collision, or even a reasonable suspicion that he or she had been drinking. The Canadian Police Association (CPA) made this recommendation and it was concurred in by the Canadian Automobile Association, the Canada Safety Council, and the province of Nova Scotia. The Ontario Government's suggestion for dealing with the problem was an amendment to subsection 254(2) of the Criminal Code, to clarify that a police officer can make an approved screening device demand of a driver who is no longer actually driving.
On the other hand, the Canadian Bar Association was concerned that the automatic testing of all drivers involved in a serious accident could complicate obtaining emergency medical treatment, in addition to violating the presumption of innocence. The Canadian Council of Criminal Defence Lawyers argued that existing Criminal Code police powers are already sufficient, given the authority to make a screening device demand based on only a reasonable suspicion of alcohol in the body.
The Committee agrees that police already have sufficient authority under the Criminal Code for requesting and collecting evidence of impaired driving. Furthermore, the Committee is concerned that the CPA proposal would have the effect of suspending the presumption of innocence by reason alone of the occurrence of a collision. For these reasons, the Committee does not believe the Criminal Code should be amended to allow an automatic right to test drivers involved in injury-causing collisions.
1 They included the Canadian Police Association, Mothers Against Drunk Driving, the Canadian Resource Centre for Victims of Crime, and the Association of Canadian Distillers.
2 Sharleen Verhulst and Jennifer Dickson, Brief to the Committee, p. 7.
3 Brian Hodgson, Minutes of the Committee, 3 February 1999, 1620.
4 Subsection 254(2).
5 See subsection 254(3) (demand) and paragraph 256(1)(a) (telewarrant).
6 Wayne Jeffery, Drugs and Driving Committee, Canadian Society of Forensic Science, Minutes of the Committee, 3 February 1999, 1630.
7 Canadian Society of Forensic Science, Drugs and Driving Annual Report 1989/90, p. 2.
8 Addictions Foundation of Manitoba and Winnipeg Police Services, Brief to the Committee, p. 16.
9 Of course, the issue of refusal would not arise with the Uniform Law Conference proposal since section 256 applies only to those suspects who are unable to consent.
10 Joel Mayer, Drugs and Driving Committee, Canadian Society of Forensic Science, Minutes of the Committee, 9 March 1999, 1100.
11 "Approved instrument" is defined in subsection 254(1) of the Criminal Code as an instrument designed for the purpose and approved by order of the Attorney General of Canada.
12 Brief to the Committee, p. 5.
13 Brian Hodgson, Minutes of the Committee, 3 February 1999, 1640.
14 Ontario Ministry of Transportation, Brief to the Committee, p. 10.