The Power of Perspectives

The Canadian Bar Association

Kim Covert

Creating uncertainty: Part 2 of Bill C-46 as flawed as its predecessor

October 2 2017 2 October 2017

 

If there’s something the law doesn’t like, it’s uncertainty. The legal system spends years building precedents, forging predictability. Creating an “if-A-then-B” system that’s not quite mathematical, but is logical and on which we can all rely.

The problem with Bill C-46, according to the CBA’s Criminal Justice Section, is that it will do away with decades of established precedent and leave uncertainty in its place. And in a time of overworked, under-staffed courts, court delays and the Jordan ruling, uncertainty is even less attractive than usual.

Canada’s impaired driving law is the most heavily litigated part of the Criminal Code. The decisions resulting from decades of challenges mean that it is predictable. Bill C-46 would, in a stroke of the pen, turn miles of solid legal ground into possible quicksand.

Bill C-46 is presented in two parts: Part 1 of the bill deals with the need to add those driving under the influence of drugs to the existing impaired driving provisions in the Criminal Code – a need that becomes more pressing with the proposed legalization of marijuana. The CBA has issues with certain sections of Part 1, but supports its intent.

Part 2 would eventually “repeal and replace all existing driving provisions in the Code, including the amendments proposed in Part 1.” Moreover, it would replace those provisions with others that are largely in line with provisions in the former Bill C-226, a private member’s bill which a Parliamentary Committee noted could violate the Charter and contained measures that were “unquestionably unconstitutional.” Bill C-226 was eventually voted down.

Bill C-46 is not identical to Bill C-226, notes the submission presented to a Parliamentary Committee in September by Kathryn Pentz, Q.C., Secretary of the Criminal Justice Section, but Part 2 of the new bill is still very similar to Bill C-226, and the Section has spoken with the Justice Department a number of times about it.

We have “expressed significant concerns about the constitutionality of several aspects of the Bill. We also stressed that the new sections would bring a substantial amount of uncertainty into an area of well-established, heavily litigated law. Rather than improving efficiencies, our daily experience in Canada’s courts leads us to suggest that this uncertainty will significantly increase and prolong litigation, further burdening our criminal justice system at a time when system delays have become critical.”

The Section makes a number of recommendations, including that Parts 1 and 2 be severed, with Part 1 proceeding as its own bill and Part 2 not going ahead at all.

While recognizing that it is necessary to identify and prosecute drug-impaired drivers, the Section notes that, unlike alcohol, there is no clear correlation between the amount of drugs in the system and impairment. While there is general consensus that a blood alcohol level of 80 mg indicates impairment in anyone, blood drug concentration levels can mean different things – the same concentration level can have a range of effects in different users, from not impaired at all to heavily stoned.

“This dilemma must be recognized,” the Section states, noting that limits for blood drug levels could actually penalize non-impaired drivers. The Section recommends that any measurement of blood drug concentration be based on proven scientific evidence that links the concentration to impairment.

The Section also notes that the way to prove blood drug concentration levels is far more invasive than the one for blood alcohol – there is no breathalyzer for drugs, so bodily fluids must be tested.

“Technological advances have progressed to the point that roadside screening devices for drugs are a reality. It is important for the federal government to employ effective testing methods to deal with impaired driving. Parliament must be careful to ensure any approved devices are scientifically valid and involve minimal intrusion, given the low threshold for a roadside demand and the absence of right to counsel.”

The Section makes a total of 12 recommendations regarding the proposed legislation, but the biggest takeaway from the submission is this:

“We suggest a balanced approach considering both the impact of costly, extensive litigation on litigants and the system overall, and any potential benefits to public safety. Constitutional jurisprudence on impaired driving should play a central role in this balancing.

“The CBA Section recognizes the need for additional tools to deal with drug-impaired driving and supports the goal of Part 1 of Bill C-46 to the extent that new measures are supported by science. However, Part 2 of the Bill suffers the same flaws as its predecessor, Bill C-226, and should not be brought into law.”

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