On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia.
Changes to Drinking and Driving Legislation
The amendments were designed to simplify, clarify, and modernize the cumbersome language from the predecessor sections. The most obvious of these changes is the use of the term “conveyance” instead of the awkward phrase “motor vehicle, vessel, an aircraft or railway equipment” which was frequently repeated throughout the predecessor sections. This change makes the provisions much easier to read.
Another goal of the amendments was to change the language of the provisions to reflect the interpretations of the courts, where possible. As one example, in section 320.27, which allows the police to make an Approved Screening Device demand at the roadside, the term “forthwith” has been replaced with the term “immediately”. This change reflects how the term “forthwith” has been interpreted by the courts. It is also an example where the language has been modernized with more plain language text.
Alcohol Screening Provisions s. 320.27(2): ASD Demand
Although the changes made by the 2018 amendments are significant, the general structure of the legislation remains the same. Parliament has maintained the two-step process for the detection and enforcement of driving in excess of the legal blood alcohol limit. Like the predecessor legislation, the first step provides for the administration of a screening test at or near the roadside immediately after the interception of an operator (a driver). The second step provides for a breathalyser test into an Approved Instrument at a police station.
The threshold test for making an Approved Screening Device (ASD) demand at the roadside has changed significantly. Under the predecessor section, the police were required to have “reasonable suspicion of alcohol in the body” before making an Approved Screening Device demand. That remains the case under s. 320.27(1).
However, under s. 320.27(2), the police also now have the authority to demand a driver provide a sample of breath into an ASD without any suspicion that a driver has been drinking. Under the heading “Mandatory Alcohol Screening.” s. 320.27(2) states:
320.27(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.
Supporting Court Decisions
At least three Provincial Court decisions have held that section 320.27(2) passes constitutional muster. In R v Blysniuk, 2020 ONCJ 603, the Ontario Court of Justice found s. 320.27(2) violated sections 8 and 9 of the Charter, but those violations were saved by section 1. In R v Morrison, 2020 SKPC 28 and R v Kortmeyer, 2021 SKPC 10, the Saskatchewan Provincial Court found s. 320.27(2) did not violate s. 9, but it did violate s. 8, and that violation was saved by s. 1. Since then, in McLeod v British Columbia (Superintendent of Motor Vehicles), 2023 BCSC 325, the Supreme Court of British Columbia found that s. 320.27(2) limited rights under sections 9 and 10(b) of the Charter, but that those limits are legally justified under section 1 of the Charter. The court in McLeod did not find any infringement of section 8 of the Charter.
There are three requirements for a valid demand under s. 320.27(2).
- The demand must be made in the course of the lawful exercise of police powers.
- The demand must be made by a peace officer who has an ASD in their possession.
- The demand must be made, and the test must be administered immediately.
With respect to the first of these criteria, the police have always had the power to randomly stop drivers for safety and compliance reasons, like checking for driver’s licences, insurance, mechanical fitness, and driver sobriety. These stops have long been held constitutional.[1] Under s. 320.27(2), the police now also have the authority during a traffic stop to ask the driver to blow into an ASD in the absence of any belief that the driver has consumed alcohol.
With respect to the requirement that the officer has the ASD in their possession, in R v Bath, 2021 CanLII 35120, the Newfoundland Provincial Court concluded that it was not necessary for an officer to have the ASD on their person for a lawful demand under s. 320.27(2). The accused argued that the demand made by an officer was invalid because another officer got the ASD out of the trunk of the police vehicle, unboxed it, readied the device and administered it to the accused. The court concluded that it was not necessary for an officer to have the ASD on them to legally avail themselves of s. 320.27(2). At para. 34 the court said:
As a matter of law, possession includes joint possession. The ASD was in the trunk of the police car, and both police officers had both knowledge and control of the ASD. Cst. Crann was, as a result, in possession of the ASD. As a result, I conclude that Cst. Crann’s demand for ASD breath test(s) was valid, despite the fact that the ASD was in the trunk of the police car when he made the demand.
The Alberta Transportation Safety Board considered the immediacy and possession requirement in R v MacDougall (Re), 2020 ABTSB 2264. In that case, a police officer witnessed the driver throw a cigarette out of the driver’s side window while swerving his truck from side to side. The officer stopped the vehicle and asked the driver to wait while he called another officer to bring an ASD. The ASD arrived 5 minutes after the accused was pulled over, and the officer read the accused the ASD demand under s. 320.27(2). The accused was then arrested for refusing to provide a sample and issued a licence suspension under the Alberta Traffic Safety Act.
The Board found that the demand was invalid. They found the immediacy requirement under section 370.27(2) required that the process be “minimally intrusive and as prompt as possible under the circumstances”. In this case, the driver was already detained by the time the second officer arrived with the ASD and read the demand. Therefore, the breath demand was not “immediate”. At para. 21 the Board said:
In the matter at hand, the Board finds that the MAS [Mandatory Alcohol Screening] demand was not made immediately and was, therefore, invalid. Although Cst. McIsaac may have been the one to read the demand to the Appellant upon his arrival, the Appellant had already been detained by Cst. McDougall for the purpose of conducting a MAS. The immediacy requirement of an MAS demand pertains to the detainee and to the length and purpose of their detention. It does not relate to the police officer who verbalizes the demand, and the promptness with which they do so.
The fact that the police officer who eventually read the demand had the ASD in his possession was immaterial.
The Alberta Transportation Safety Board came to a similar conclusion in Kalyn-Bekevich (Re), 2020 ABTSB 1940 and excluded the evidence of the breath sample under s. 24(2) of the Charter.
ASD Demand: Summary
In summary, an officer does not need to physically possess the ASD at the time of the mandatory screening demand. Having the device in a nearby vehicle is sufficient. Possession includes joint possession by another officer at the scene. The promptness with which an officer can administer the test will inform the analysis about whether the officer possessed the device at the time of the demand. If a first ASD malfunctions, use of another ASD may be lawful as long as the switching of the devices does not result in delay.[2]
Increased Penalties for Impaired Driving
Mandatory minimum sentences now apply to dangerous operation causing bodily harm and causing death, as well as fleeing the scene of an accident causing bodily harm and death.
There are now tiered fines for having a BAC over certain thresholds. A first conviction for having a BAC equal to or exceeding 120 mg% but less than 160 mg% will result in a minimum fine of $1500. If the BAC is greater than 160 mg%, the minimum fine is $2000. The minimum fine for a first offence for refusing to provide a breath sample is doubled to $2000.
The maximum jail sentence for impaired driving and refusal to provide a sample increased from 5 years to 10 years if prosecuted by indictment. This will result in automatic deportation for convicted foreign nationals or permanent residents.
Driving prohibitions under the Code for impaired driving, over .08, and refusal are:
- For the first offence, a minimum of 1 year to a maximum of 3 years (plus any period of imprisonment).
- For the second offence, a minimum of 2 years to a maximum of 10 years (plus any period of imprisonment).
- For each subsequent offence, a minimum of 3 years with no maximum (plus any period of imprisonment).
There are also mandatory prohibitions under the British Columbia Motor Vehicle Act for Criminal Code driving convictions.
Section 320.22 sets out aggravating features that the court must consider on sentencing. The factors are:
(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;
(d) the offender was being remunerated for operating the conveyance;
(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
(f) the offender was operating a large motor vehicle;[3] and
(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.
This list of aggravating factors is not exhaustive.
A first offence for over .08 with a BAC below 120 mg% is $1000. A first offence with a BAC in excess of 120 mg% carries a mandatory increased fine ($1500 if the readings are between 120 and 160 mg% and $2000 if more than 160 mg%). Therefore, for first offenders, the aggravating feature of having a BAC in excess of 120 mg% is already accounted for by the mandatory minimum sentence. However, this aggravating feature is not accounted for in subsequent offences or if bodily harm or death is involved.
Evidentiary Issues for Drinking and Driving Cases
This next part outlines evidentiary issues for drinking and driving case law examples in BC.
Admissibility of Result of Analysis s. 320.31(7)
Subsection 320.31(7) states that voluntarily providing a sample of breath, blood, urine, sweat or other bodily substances may be used as evidence against the individual without notice. The individual need not be warned that they did not need to give the sample, or that the sample may be used as evidence against the individual. This provision has yet to be constitutionally challenged.
Admissibility of Statement s. 320.31(9)
Subsection 320.31(9) provides that a statement compelled by law is admissible for the purpose of justifying a demand for breath or other bodily samples. The section states:
(9) A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.27 or 320.28.
This provision was constitutionally challenged in R v Korduner, 2021 ABPC 83, an Alberta lower court decision. In Korduner, the accused was involved in a motor vehicle accident. On the way to the hospital after the accident, the accused made statements to a police officer in the ambulance. Those statements were compelled under the Traffic Safety Act and were used as evidence against the accused on a charge of impaired operation and refusing a breath demand.
The accused argued that section 320.31(9) of the Code violated sections 7, 8, 9 and 10(b) of the Charter. The accused relied on the “use immunity” principle to argue that the operator of a conveyance involved in an accident is protected by the principle against self-incrimination. Following the precedents in R v White, [1999] 2 SCR 417, R v Powers, 2006 BCCA 454, R v Soules, 2011 ONCA 429, and R v Porter, 2015 ABCA 279, the court in Kroduner concluded s. 320.31(9) violated section 7 of the Charter. The court stated:
[50] Section 7 of the Charter provides protection for individuals who are required to report an accident. I have already found in Voir Dire #2, that the Accused/Applicant’s statements to the officer were statements compelled by section 71 TSA and that the Accused/Applicant had an honest and reasonable belief that she was statutorily compelled to answer his questions, and thus the principles of White were engaged and those statements provided are protected from any use in subsequent criminal proceedings. Per the reasoning of Powers, Soules, and Porter, use of the compelled answers are not admissible in a criminal proceeding for any purpose, including to establish reasonable grounds for a breath sample demand.
[51] Section 320.31(9) specifically allows for such a compelled statement to be used to justify a breath demand. The portion of section 320.31(9) dealing with a statement “compelled under a provincial Act” goes directly against the reasoning in White, Powers, Soules, and Porter. It is clear that the Accused/Applicant’s section 7 Charter rights are engaged. I find the above cited authority is determinative of the issue: that allowing a compelled statement under a Provincial Act, including a compelled statement under the TSA, would infringe the Accused/Applicant’s section 7 rights against self-incrimination in a manner not in accordance with the principles of fundamental justice. The Accused/Applicant has demonstrated that section 320.31(9) both engages section 7 of the Charter and that the impugned provision is causally connected to the prejudice arising from the infringement of the principle against self-incrimination.9
However, since the Alberta Provincial Court lacks jurisdiction to declare legislation unconstitutional, the court limited the unconstitutional finding to the accused. Further, the court clarified that the finding was contingent on a section 1 Charter hearing, which to date has not been heard.
Disclosure
The Crown’s disclosure obligations with respect to the proper functioning of the Approved Instrument have now been codified in s. 320.34(1). The prosecutor must disclose information about any breath samples provided pursuant to subsection 320.28, including:
(a) the results of the system blank tests;
(b) the results of the system calibration checks;
(c) any error or exception messages produced by the approved instrument at the time the samples were taken;
(d) the results of the analysis of the accused’s breath samples; and
(e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.
Pursuant to s. 320.34(2) the accused may apply to the court for a hearing to determine whether further materials should be disclosed regarding the proper functioning of the Approved Instrument. The application must be in writing and set out detailed particulars of the information the accused seeks to have disclosed and the likely relevance of that information to determining whether the Approved Instrument was in proper working order (see s. 320.34(3)). The disclosure application hearing must be held at least 30 days before trial.
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References
[1] See R v Dedman, [1985] 2 SCR 2, R v Hufsky, [1988] 1 SCR 621 and R v Ladouceur, [1990] 1 SCR 1257.
[2] Bender (Re), 2019 ABTSB 1752.
[3] Cases that have considered whether a vehicle is a large motor vehicle include: R v Hillier, 2020 CanLII 85560 (NLPC) at paras 33-34 (Silverado truck); R v Sivakumaran, 2021 ONCJ 307 at paras 37-38 (Ford pickup truck); R v Caines, 2019 ONCJ 348, at para 26 (Dodge Ram pickup truck); R v Saxby, 2006 ABPC 201 at para 2, (Kenworth tractor); R v Dhadwal, 2012 ABPC 349 at paras 5, 25 (unspecified truck); R v Fairchild, 2017 ONCJ 658 at paras 1, 30 (Ford Escape SUV); R v Burger, 2015 ABPC 224 at paras 1, 68 (Semi-truck); R v Hallock, 2014 ABPC 232 at para 22 (Ford F150); and R v Bagri, 2016 BCCA 272 at paras 7, 17 (2003 Volvo tractor truck weighing 8575kg).
