Impaired driving cases surrounded by uncertainty one year after Bill C-46 took effect

  • December 06, 2019
  • Kyla Lee

When Bill C-46 came into force on December 18, 2018, it brought with it a host of challenges in impaired driving cases. Not only did the legislation — An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts— introduce new presumptions and offences related to drug-impaired driving, it also overhauled the alcohol-impaired driving regime in its entirety.

Defence and Crown attorneys alike have been wrestling with the meaning of many of these new provisions and how they apply to transitional cases. In the meantime, challenges have been filed to several of the new investigative powers—including those that permit saliva testing and random breath testing.

The random breath testing provisions have been challenged in many provinces, including Ontario, Yukon, and British Columbia. Presently, all three of these jurisdictions are seeing the challenges unfold differently.

In Ontario and Yukon, the challenges are taking place at the provincial court level. Within these cases there have been disagreements between counsel and the courts as to the proper procedure, and whether the evidence should be heard in the trial proper before the constitutional challenge or after. These disagreements have slowed the process of the challenges, resulting in additional case-planning. Little progress has been made in substantive arguments related to the constitutionality of the scheme.

In British Columbia, a group of litigants have filed constitutional challenges on behalf of clients who were punished under British Columbia’s roadside prohibition scheme. This has allowed for further progress, as the litigants in those cases are having their challenges heard as part of a judicial review and corresponding civil action in the B.C. Supreme Court. As such, there will be a Superior Court level judgment rendered at the initial level, which is binding on the rest of the province and highly persuasive across the country in provincial courts. It is anticipated that these cases will be heard in early 2020. Presently, they are in the case management stage with deadlines being set for filing of evidence and argument, and a case management judge being assigned.

A similar tactic is being employed to challenge saliva testing. Michelle Gray, a woman with MS who was issued a driving prohibition after testing positive for her medical cannabis on a Drager DrugTest 5000 approved saliva testing device, has filed a challenge in Nova Scotia Supreme Court. Ms. Gray is challenging both the constitutionality of the saliva testing provisions of the Criminal Code, as well as the provincial legislation under which she was prohibited. As with the B.C. challenge to random alcohol testing, Ms. Gray’s challenge is currently in the case management phase.

On all these challenges, the hope of the parties is to introduce as much evidence and material as possible by way of affidavits to streamline the issues for the court, such that important decisions affecting all litigants can be made in a timely fashion.

As noted, other challenges have been presented by the provisions of the legislation. One of these involves transitional cases. Because the provisions of Section 258 of the Criminal Code relating to the presumption of identity were repealed by Bill C-46, a question remains as to whether those presumptions still exist in transitional cases.

The battleground has been in Ontario, led primarily by lawyer Richard Aitken. In two cases, R. v. Shaikh 2019 ONCJ 157; R. v. Jagernauth 2019 ONCJ 231, defence counsel successfully argued that the presumptions did not survive repeal. Therefore, the burden was then on the Crown to call an expert to relate the readings back to the time of driving. These cases have been distinguished on multiple occasions, most notably by R. v. Porchetta, 2019 ONCJ 244.

None of these cases have been decided yet at the appellate level, and so which line of authority is correct remains to be seen.

Additionally, because there are new Certificates of Qualified Technician contemplated by the provisions of the Code, questions have arisen about the evidentiary value of the old certificates. In R. v. Flores-Vigil 2019 ONCJ 192, the Court wrestled with the question of whether viva voce evidence from the Qualified Technician was sufficient to establish the mandatory elements in Section 320.31 of the Criminal Code, which must be proven in order to rely on the new presumptions. In particular, Flores-Vigil focuses on the need to identify the target value of the gas standard on the Certificate of Analyst. The old certificate form did not state the target value, while the transitional certificate does.

Transitional certificates themselves have proven to be a fertile source for cross-examination and legal argument. Many officers are certifying, without reading, the contents of the certificate which claim that a demand under Section 320.24 of the Criminal Code was made, despite the fact that such a demand did not exist at the time. Similarly, although the code permits proof of the alcohol standard and breast samples by providing the results rounded down, the code states that the result of each blank check must be disclosed. So too must any error or exception messages produced by the instrument.

This is codified in Section 320.34(1). The result of this is that there is a whole host of disclosure applications that must be litigated to determine just what is meant by those provisions of the code. The process for these disclosure applications is also in question. Although Section 320.34(2) suggests an application for “further information” must be brought with 30 days notice and heard 30 days in advance of trial, if the requirements are not satisfied, it is unclear whether the application must follow this process.

These and many more evidentiary and investigative hurdles exist under the new provisions of the code as they pertain to impaired driving. At this point, the only certainty is that there is no shortage of issues to litigate in this area.

Kyla Lee is a partner at Acumen Law Corporation in Vancouver.