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CHAPTER 4: THE NATURE OF THE OFFENCE

INTRODUCTION

The Committee was told that enforcement of existing impaired driving provisions is sometimes made more difficult by various drafting inadequacies in the law and by a lack of consequences for behavior often linked to impaired driving. Consequently, participants in the Committee's review process recommended a number of amendments aimed at changing the elements of the offence of impaired driving, as well as expanding the nature of the conduct that would fall within the ambit of the Criminal Code.

LOWERING THE LEGAL BLOOD ALCOHOL CONCENTRATION (BAC)

Several participants in the review process advocated amending the Criminal Code to reduce the legal BAC limit to levels ranging from 0 mg/100 ml of blood to 50 mg/100 ml of blood. For the most part, they argued that impairment starts at levels lower than the current legal BAC limit and the law should reflect that reality. For example, Crown Attorney Andrejs Berzins recommended lowering the legal limit to 50 mg/100 ml of blood because a BAC limit of 80 mg/100 ml of blood sends the wrong message by "promoting a permissible amount of heavy drinking."1 Likewise, in a joint submission with the Winnipeg Police Services, the Addictions Foundation of Manitoba recommended lowering the BAC limit to .05 or 50 mg/100 ml of blood to "further the basic understanding and social policy that drinking and driving are two behaviours that should not be mixed."2 The Council on Drug Abuse (CODA) advocated a legal BAC limit of .02 or 20 mg/100 ml of blood based on concerns about giving the public a mixed message and a belief that there is no safe level of blood alcohol concentration for drivers. For these same reasons, Sharleen Verhulst and Jennifer Dickson also supported a legal BAC limit of 20 mg/100 ml of blood, while Ken Roffel argued that zero tolerance, or 0 mg/100 ml of blood is the only way to make the law and the message sufficiently clear to Canadians.

On the other hand, provincial governments showed little support for lowering the existing legal BAC limit. Instead, Ontario officials urged the Committee to concentrate on "improving the effectiveness of the current Criminal Code provisions and the ability of the police and courts to work with the 0.08 level."3 Québec's Ministry of Public Safety was also unenthusiastic about this proposal, citing a lack of scientific evidence that there would be any value in lowering the legal BAC limit. While recognizing that drivers with a BAC between 50 and 80 mg/100 ml of blood are a safety risk, Manitoba Justice argued that administrative sanctions like Manitoba's 24-hour roadside suspensions are a more appropriate means of addressing that risk. The Manitoba brief also pointed out that federal, provincial and territorial justice officials had rejected a proposal to reduce the legal BAC limit to .05, at the 1998 Uniform Law Conference. The Committee also notes that important strides in the direction of lower BACs have already been taken in most jurisdictions through the use of graduated licensing schemes that impose much more stringent limits on novice drivers.

The Committee heard conflicting opinions respecting the likely effects of lowering the legal BAC limit. Based on recent studies, Robert Mann suggested that a legal BAC limit of 50 mg/100 ml of blood in Canada could result in as much as a 6% to 18% reduction in motor vehicle fatalities, or between 185 and 555 fatalities per year. By contrast, the Traffic Injury Research Foundation (TIRF) cited recent studies in support of their conclusion that "there is no evidence that lowering the statutory BAC limit in and of itself will have a measurable impact on public safety."4

Obviously, the Committee is anxious to see fewer deaths and injuries on the road as a result of impaired driving, as are all Canadians. However, we are also concerned about the lack of consensus among experts in the field as to whether or not a lower BAC limit would achieve greater safety. In addition, the possible negative effects of such a move cannot be ignored. For example, TIRF has said that a legal level of 50 mg/100 ml of blood would be extremely difficult for police to enforce, given the lack of overt signs of intoxication at BAC levels below 80 mg/100 ml of blood. Furthermore, even if they could be detected, neither the police nor the courts would have the resources to cope with the more than double the number of drivers who would be liable to prosecution.

The Committee shares the concern raised by TIRF and others that a legal BAC limit of 50 mg/100 ml of blood could result in a loss of public support, especially since scientific evidence suggests that not everyone would be impaired at that level. The Committee is also cognizant of the fact that the provinces and territories would bear the additional enforcement burdens, as well as most of the practical consequences that would flow from such a fundamental policy shift. For all of the foregoing reasons, and having weighed all of the evidence offered on this issue, the Committee is not at this time in favour of Criminal Code amendments to lower the legal BAC limit.

LIMITATIONS ON "EVIDENCE TO THE CONTRARY"

Paragraph 258(1)(c) of the Criminal Code creates a legal presumption that allows the courts to accept breath analysis results as proof of the blood alcohol concentration of the accused at the time of the alleged offence, "in the absence of evidence to the contrary."5 The Committee was told that many accused persons who plead not guilty base their defense on that section of the Code. In such a case, the defendant typically calls evidence to establish that he or she consumed less alcohol than would have been required to reach the blood alcohol concentration indicated by the breath analysis machine. Evidence in such a case will usually include testimony from a toxicology expert, to establish that the accused person's actual blood alcohol concentration was most likely lower than the machine indicated.

Crown Attorney Andrejs Berzins argued in favour of amendments to the Criminal Code to limit "evidence to the contrary" to that evidence "directly indicating that the apparatus was malfunctioning or not properly administered."6 In support of his argument, Mr. Berzins told the Committee that about one-third of all provincial court criminal trial time in Ottawa is taken up with impaired driving matters. Representatives from the Alcohol Test Committee of the Canadian Society of Forensic Science acknowledged that their time as expert witnesses before the courts is often taken up with this kind of defense.7 Consequently, they suggested that Parliament might consider placing limits on the interpretation of "evidence to the contrary," to eliminate some of the more "spurious arguments" that can arise under that heading.8

On the other hand, the Criminal Lawyers Association of Ontario pointed out that it would hardly be within the capability of an accused person to demonstrate, several months after the fact, the accuracy or inaccuracy of a machine that is in the possession of the police. That argument is particularly persuasive in light of the fact that Criminal Code sections mandating the provision of a breath sample to the accused have never been proclaimed in force, due to the lack of an "approved container" for the purpose. This is in contrast to the presumption of accuracy for a blood alcohol reading, which requires that an additional sample be made available so that the accused can conduct his or her own analysis.9

The Committee understands the frustration expressed by justice system personnel over time-consuming defenses that, at least on the surface, may appear frivolous. However, given that the accused would have no effective means of checking the accuracy of a breath analysis machine, the Committee agrees that limiting the interpretation of "evidence to the contrary" in such a manner as recommended could effectively amount to the creation of an absolute liability criminal offence. Such a result would run the risk of interfering with an accused person's rights guaranteed by the Canadian Charter of Rights and Freedoms. In present circumstances, therefore, the Committee does not support amendments to the Criminal Code that would limit the interpretation of "evidence to the contrary."

CODIFYING BREATH ALCOHOL LEVEL

The Committee was told that one of the complicating factors in the prosecution of the per se or `over 80' offence is that the machines measure breath alcohol, but the offence is expressed in terms of blood alcohol concentration. As a result, breath analysis machines must be calibrated to convert to blood alcohol values.10 In order to eliminate the need to make the conversion and to remove one of the variables in the system, it was suggested that the Criminal Code be amended to express the per se offence as a value of micrograms of alcohol per millilitres of breath.

Although there are apparently a number of states in the United States that codify the offence in breath, and the United Kingdom uses both breath and blood concentration values, the Committee is not persuaded that the potential benefits would outweigh the complications arising out of such an amendment. A major public information campaign would be required to ensure a basic understanding of the newly codified offence and the reasons for making the change. Therefore, the Committee is not in favour of such amendments to subsection 253(b) at this time.

FAILURE TO STOP

The Canadian Police Association proposed an amendment to the Criminal Code that would create a new offence of failing "to stop for a peace officer when directed to do so."11 An additional penalty was recommended where the driver who failed to stop was impaired. In support of this recommendation, the Association argued that better enforcement tools and greater penalties for impaired driving may create greater incentives to avoid detection.

Although the creation of a new offence may be the most effective response to fleeing motorists, the Committee believes that the broader policy implications of such a move require more scrutiny than we are able to provide within the scope of this review. Furthermore, Bill C-440, which has been referred to this Committee, is aimed at addressing this very issue. Therefore, the Committee is confident that the matter will be given full and fair discussion when the Bill is reviewed at Committee stage. In the interest of informing future debate on the question, the Committee suggests that the Department of Justice review the matter so that they will be able to provide background on relevant legal and policy issues and, if necessary, possible alternatives for dealing with the problem.

RECOMMENDATION 1

The Committee recommends that the Minister of Justice consider the nature and frequency of the problem of motorists fleeing police investigations and the advisability of addressing the matter through the creation of new Criminal Code sanctions.

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1 Minutes of the Committee, 11 February 1999, 1105.

2 Brief to the Committee, p. 9.

3 Donna Connelly Miller, Ontario Ministry of Transportation, Minutes of the Committee, 17 February 1999, 1625.

4 Brief to the Committee, p. 8.

5 A number of other prerequisites are also imposed, including time limits following the offence and between samples.

6 Minutes of the Committee, 11 February 1999, 1010.

7 Louise Deheut, Minutes of the Committee, 3 February 1999, 1645.

8 Brian Hodgson, Minutes of the Committee, 3 February 1999, 1720.

9 Criminal Code, subparagraph. 258(1)(d)(i).

10 Doug Lucas, Alcohol Test Committee, Canadian Society of Forensic Science, Minutes of the Committee, 3 February 1999, 1700.

11 Brief to the Committee, p. 9.