The government is on a laudable mission to contain one of the most prevalent and harmful crimes, impaired driving - impaired by drug or alcohol.

Even though impaired driving has been a crime in Canada since 1921, all law enforcement had was human observation to detect and prove impairment. Observors routinely erred, failed to pick up the trained alcoholic or faced a defendant who alleged some other reason for his inability to walk the line.

The carnage slowed down in the eighties when statistics drew a clear picture of drunk-driver injuries and death, and the breathalyzer was introduced; now, finally, a simple machine to reliably calculate alcohol intoxication.

Canada's Criminal Code is intentionally complex in treatment of impaired operation of a vehicle.

BC Premier impaired driving mug shotsContrary to the common criminal, but similar to income tax violations, persons charged with impaired driving often come from high income brackets. They can afford legal fees for a chance of walking. This has created a lucrative criminal law cottage industry, which pits every statute and amendment the government comes up with against the keen and intelligent scrutiny of Charter-minded and creative defence counsel.

Evidence of this is in every law library where there are far more titles on breathalyzer law or impaired driving, for example, than one might find on poverty or welfare law. And the minutia is mind-boggling.

In the result, the Criminal Code presents a shotgun approach, and with every season of statute amendment, draw the wagons ever tighter.

The 7 Bullets

The relevant offences, generally, are as follows, and tweaked constantly in the House of Commons to adjust to the latest hope punched through by Canada's inventive criminal law bar:

• 1. §249 is the catch-all for the weaver and dodger on the road. It makes it an offence to "operate ... a motor vehicle in a manner that is dangerous to the public...."

• 2. §253(a) starts the focus on impaired driving per se. It creates the generic offence, the impaired operating of:

"... a motor vehicle ... ... or has the care or control of a motor vehicle ... whether it is in motion or not, while the person’s ability to operate the vehicle is impaired by alcohol or a drug ...."

 

• 3. §253(b) introduces the simple offence of driving while hosting a high content of alcohol in the blood: the impaired operating of:

"...a motor vehicle ... ... or has the care or control of a motor vehicle ... whether it is in motion or not ... having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds 80 milligrams of alcohol in 100 millilitres of blood."

• 4. §254 allows a police officer, on his or her reasonable suspicion:

"... that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle ... or had the care or control of a motor vehicle... whether it was in motion or not, the peace officer may, by demand, require the person to ... perform forthwith physical coordination tests ... and, if necessary, to accompany the peace officer ... to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device".

Driving while impaired or care and control while impaired are distinct offences but since you cannot drive without being in care and control, but you can be in care and control without driving (eg. parked), the police almost always charge care and control.

And just to be on the safe side, we find the lovely §258(1)(a) of the Criminal Code:

"Where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle..., the accused shall be deemed to have had the care or control of the vehicle ... unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle ... in motion...."

The demand that a driver blow into an approved screening device has been hard-fought in many reported cases such as R v Dearden, ¶7:

"There are three parts to a proper approved screening device demand that must be conveyed to a motorist ..... First the officer must tell the motorist that the officer reasonably suspects that the motorist has alcohol in his blood. Next, the officer must tell the motorist that he is required to provide forthwith a sample of his blood and finally the officer must tell him that the purpose of the sample is to enable a proper analysis of the breath by means of an approved instrument."

One area where the law appears to have gone wacky is determining if a police officer had reasonable grounds to advance the driver to the second step, the formal breath sample. For example, in R v Forsberg, this astounding statement of law by a Saskatchewan provincial court judge:

"... admitting to drinking, and the presence of a strong smell of alcohol are not in (and) of themselves sufficient to constitute reasonable and probable grounds".

alcolmeterNot to be undone, this gem from Manitoba Court of Queen's Bench justice Schwartz in R v Higgins who reviewed the demand made by a police officer arriving on the scene of a fatal single vehicle accident and noting the small of alcohol on the driver:

"Constable Therrein did not have the requisite reasonable and probably grounds because he formed his belief.... He jumped to his conclusion.... His principal reason for coming to his conclusion was based on that (fatal) single vehicle accident combined with the smell of alcohol on the accused."

• 5. §254(3) allows the police officer to, instead of deferring to a breathalyzer, and:

"... because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that ... will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood."

• 6. §254(5) creates a separate offence to refuse to provide a breath or blood sample, which, as noted above, may be demanded of the person suspected of impairment.

• 7. To wrap it up, the Criminal Code does something it rarely does: it sets out minimal sentences:

  • $1,000 fine for the first offence;
  • 30 days prison for a 2nd conviction; and
  • 120 days for a third.

Real Life

In most cases, the police will stop a moving vehicle and question the driver, all the while observing for signs of intoxication.

If the observation raises a reasonable suspicion in that regard, the police will screen by making a demand that the driver blow into a roadside screening device. The screening devices have names such as Alcometer, Alcosur, Alcotest and Alcosensor.

These devices are designed to issue a simple yellow light or WARN sign if the level of alcohol is between, for example, 50 to 80 and 100 mgs per ml of blood, even though the legal limit may be 80mg.

Many provinces, exercising their jurisdiction over the licensing of drivers and vehicles, have implemented legislation which kicks in at a WARN indication and requires the driver to surrender his or her driver's license for twelve hours. The driver is forced to walk home, pay for the towing of his vehicle and deal with the driver license demerit points.

But if the reading is over 100mg, the screening device indicates red or FAIL, the officer then demands a formal breathalyzer (or Intoxilyzer) test.

Here's where the fun begins, although lawyers have picked over the entire process like vultures on a carcass.

A demand to submit to a breathalyzer test has been interpreted by the court's as a search without warrant, an extraordinary police power already heavily regulated by heaps of verbose law cases. The Charter and its army of bleeding-heart judges have caused hundreds of drunk drivers to be acquitted.

Hence, Kenkel writes (p. 8):

"Where an accused chooses to refuse to comply, the same penalties are imposed upon him or her as would be imposed upon a person convicted of impaired driving."

In McKenzie, Justice Sissons wrote:

impaired driving"There appears to be no single test or observation of impairment of control of faculties, standing alone, which is sufficiently conclusive. There should be consideration of a combination of several tests and observations such as general conduct, smell of the breath, character of the speech, manner of walking, turning sharply, sitting down and rising, picking up objects, reaction of the pupils of the eyes, character of the breathing.

"If a combination of several tests and observations shows a marked departure from what is usually considered as the normal, it seems a reasonable conclusion that the driver is intoxicated with consequent impairment of control of faculties and therefore that his ability to drive is impaired. I do not think that such a finding should be made on a slight variation from the normal."

Perhaps the biggest breading ground for litigation is the right of an accused, before they are put to a breath or blood test, to consult with a lawyer, justified by §10(b) of the Charter of Rights and Freedoms:

"Everyone has the right on arrest or detention ... to retain and instruct counsel without delay and to be informed of that right."

As Justice Lamer wrote in R v Brydges:

"First the police must give the accused or detained person a reasonable opportunity to exercise the right to retain and instruct counsel, and second, the police must refrain from questioning or attempting to elicit evidence from the detainee until the detainee has had that reasonable opportunity."

In the event of breath sample evidence, it is shown by way of a formal certificate submitted to the Court and the accused, which complies with the detailed requirements of §258. The certificate provides the court with a rebutable presumption of intoxication.

At that point, a heavy burden falls on the defence who must then think and argue like a scientist to assert that the test results are inaccurate.

Sentencing

Other than funerals, long hospital stays and life-long disability suffered by their victims, and acquittals and appeals, sentencing usually constitutes the final act of a drunk driving charge.

Much like child sexual abuse, and for reasons this author can't understand, sentencing in drunk driving cases rarely seems to fit the crime. For example, even in drunk-driving crashes where someone dies, 5 years seems to be the maximum. In Albrecht (2007), two fathers were killed by a drunk driver going the wrong way on Highway 401 but the judge determined:

"... a just sentence in this case is a prison term of five years."

Similarly, in another recent case (Nightingale), a drink driver failed to negotiate a curve, his vehicle flipped killing a passenger. Judge Brown of the Alberta Provincial Court gave Nightingale a conditional sentence.

Finally, in R v Takhar, the British Columbia Court of Appeal had occasion to sentence an accused who already had 6 previous drunk-driving convictions. The accused had been so inebriated that motorists took the law into their own hands and boxed him in until police could arrive. No one was hurt. Takhar's sentence? Another conditional sentence.

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