Days before Canada’s toughest impaired driving laws came into effect in British Columbia, two partially-conflicting Court of Quebec judgments have thrown into doubt the fate of changes introduced two years ago by the federal government that strengthened drug-impaired driving rules.
In a 160-page comprehensive ruling that provides a broad overview of impaired driving litigation in Canada, Court of Quebec Justice Pierre Lortie ruled that the new amendments dealing with impaired driving offenses introduced by Bill C-2, the Tackling Violent Crime Act, were unconstitutional as it infringed the presumption of innocence as guaranteed by the Canadian Charter of Rights and Freedoms (Charter). Judge Lortie also concluded that the provisions did not constitute reasonable limits as per s.1 of the Charter, and declared s. 258 c, d.01 and d.1 of the Criminal Code null and void.
But in a separate recent ruling, another Court of Quebec judge ruled that the amendments were only partly unconstitutional. In a 51-page ruling, Justice Conrad Chapdelaine concluded that the presumptions of identity set out by s.258 (1)c) and s. 258 (1)d.1) of the Criminal Code infringe s.11(d) of the Charter. But unlike Judge Lortie, Justice Chapdelaine found that the presumption of accuracy foreseen in s.258 (1)c) of the Criminal Code did not violate the Charter. Nor did he find that the restrictions imposed by the legislator that precludes the use of evidence — such as the amount of alcohol the accused consumed and the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body — to demonstrate that an approved breathalyzer instrument malfunctioned violated the Charter.
“Despite the fact that a judge found that the law was unconstitutional and in the other case partially unconstitutional, the law is presumed to be valid and constitutional as long as a ruling is not rendered by a higher court that deals with the constitutional issues,” noted Marco Labrie, a Montreal criminal lawyer who represented the Barreau du Québec as an intervenor in the case presided by Judge Lortie.
The two recent Court of Quebec cases were test cases, part of an overall strategy established by the Barreau and the Quebec Association of the Defence Lawyers to test the constitutionality of the new impaired driving provisions in four jurisdictions across the province.
“We decided to go with test cases in four different regions because we did not want just a single ruling,” said Jean-Marc Fradette, one of the brain trusts behind the constitutional challenges. “We obviously hope to win all of the cases. Those two other rulings will hopefully provide us with more guidance. The worst that can happen is that there will be a third way of seeing the issue, and even the worse than that, a fourth. Then, that would be terrible. It would be chaos.”
In force as of July 2, 2008, Bill C-2 introduced a new legislative scheme for impaired driving while significantly limits the scope of applicable defenses, notably the use of “evidence to the contrary” or the so-called Carter defence. Before C-2 came into force, a defendant could call on witnesses to testify that he had drunk only small amounts of alcohol, or that he was drinking at a rate at which the alcohol consumed would have been absorbed and eliminated by the accused’s body.
Bill C-2 limits the use of “evidence to the contrary” to evidence tending to show that the breathalyzer was malfunctioning or was operated improperly. Now the defence must not only prove the accused was under the limit at the time of driving, the accused must also prove how the machine malfunctioned and that the malfunction resulted in a reading over the limit by the machine.
Bill C-2 also “leads one to believe” that breathalyzers are infallible machines, points out Judge Lortie. But evidence provided by three experts led Judge Lortie to find that some errors made by breathalyzers are not immediately detected, that the machines are not governed by mandatory standards, that they are not as precise as blood samples, and that jurisprudence has recognized its “fallible character.”
“The accused is at the mercy of the machine,” said Judge Lortie. “In fact, as demonstrated by the experts, the machine, while reliable, is not infallible. Moreover, at times it is used incorrectly. Beyond that, under the new regime, evidence of a malfunctioning of the machine or an erroneous use of the machine is no longer sufficient: the accused must also establish causation.”
Aside from underlining the fallibility of breathalyzers, Montreal criminal lawyer Ēric Downs believes that the value of the Judge Lortie’s ruling rests with its detailed analysis of the presumption of innocence, which he describes as the “heart of the ruling.”
“It’s all very well to put in place presumptions that are in essence legal shortcuts to help the prosecution build its case, but one must ensure that an individual who is believed by the judge should not be declared guilty” as is now the case, said Downs, who represented the Association.
Robert Solomon, the national director of legal policy for Mothers Against Drunk Driving, is concerned that “some people will point” to Judge Lortie’s judgment and attempt to apply it outside Quebec.
“The amendments to the Criminal Code do not preclude the Carter defense,” said Solomon. “They just say certain things that will not be considered in and of themselves, evidence to the contrary. I don’t see why that violates the presumption of innocence.”