Modernizing the Transportation Provisions of the Criminal Code - Discussion Paper

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Background

In 2009, the House of Commons Standing Committee on Justice and Human Rights conducted a full review of the issue of impaired driving. The Standing Committee made 10 recommendations of which eight are addressed to the federal government. The Government has accepted these recommendations in principle.¹ Beyond this, the Government believes that the time has come to consider a comprehensive set of reforms. This paper sets out options for responding to the recommendations made by the Standing Committee that would require federal legislation and it raises further options for legislative changes.

Collisions involving automobiles kill and injure thousands of Canadians annually. Although vessels, railway equipment and air planes are also involved in collisions, the vast majority of deaths and injuries are caused by motor vehicle collisions and impairment by alcohol or a drug is a major contributing factor to the ongoing carnage.

Licensing drivers and establishing rules of the road for motor vehicles are provincial responsibilities. The provinces have developed various administrative responses to the problem of impaired driving, notably roadside license suspensions for persons with a Blood Alcohol Concentration (BAC) between 50 and 80 mg of alcohol per 100 ml of blood (mg%) and 90 day suspensions for those with a BAC over 80.

Parliament, using its constitutional power for criminal law, has enacted offences to punish those who act so irresponsibly that their conduct deserves criminal sanctions. Currently, sections 249 to 261 of the Criminal Code deal with transportation-related offences. However, the impaired driving, over 80 and refusal provisions involving motor vehicles account for more than 95% of charges under these provisions. While this paper deals primarily with impaired operation of motor vehicles, the options that are discussed also have implications for rail, vessel and aircraft modes of transport.

Complexity of the Law

In 1921, Parliament made it an offence to drive while intoxicated. In 1925, it criminalized driving while impaired by narcotics. There was a major change in 1969 when Parliament made it an offence to drive with a BAC over 80 and provided for BAC to be determined by approved instruments (AI). In 1979, Parliament authorized the use of approved screening devices (ASD) at the roadside to facilitate the detection of impaired drivers. There was a major revision of the impaired driving provisions in 1985. Further amendments were made in 1992, 1994, 1995, 1997, 1999 (two Acts), 2000, 2001, 2006 and 2008 (two Acts). Parliament has also amended the Criminal Code to address the dangers caused by street racing and flight from the police.

These many amendments have created a part of the Criminal Code that is very difficult to understand. Indeed, the Law Reform Commission in its Report on Recodifying Criminal Procedure, in 1991 wrote that some of the provisions had even then, "become virtually unreadable".

The impaired driving sections have been subject to such extensive litigation that it is difficult in some cases to understand how they operate on the ground from simply reading the text. For example, Martin's 2010 Annual Criminal Code has 21 pages of cases on section 254, which deals with making a breath demand, and 17 pages of cases on section 258, which deals with making an analysis of a breath or blood sample.

Rather than making yet another series of amendments to integrate the Standing Committee's recommended changes into the existing provisions of the Criminal Code which would add to the existing complexity, it may be preferable to recast them within a new Part of the Criminal Code that addresses all transportation-related offences and is written in simpler language, with the following structure:

• Purpose and declarations
• Offences
• Penalties
• Prohibitions
• Investigatory powers
• Evidentiary - proof of alcohol concentration
• General

The recommendations of the Standing Committee that pertain to amendments to the Criminal Code will be discussed as they arise in this paper.

Purpose and Declarations

Recommendation 9: "The Committee recommends that Parliament provide guidance to the judiciary through a legislative preamble or statement of principles, which acknowledges the inherent risks of impaired driving and the importance of meaningful and proportionate consequences for those who endanger the lives of others and themselves."

Parliament has on several occasions included statements of the purposes of adopting legislation and the principles or factors that are to guide the courts, including with respect to impaired driving. For example, The Tackling Violent Crime Act, included seven clauses in the Preamble explaining the intention of the legislation including: "Whereas driving under the influence of drugs or alcohol can result in serious bodily harm and death on Canada's streets..."

In the Criminal Code, sections 718, 718.1 and 718.2 set out the purpose and principles of sentencing. Also, s. 276 deals with the evidence of the complainant in a sexual assault trial and includes seven factors the judge is to take into account in deciding whether the complainant should be questioned regarding her sexual history.

An advantage of express legislative provisions is that they can be more accessible to the courts, prosecutors, defence counsel and the accused because they are placed in the Criminal Code among provisions to which they apply and do not have to be "found" elsewhere. Whatever method is chosen, the following subject areas should be considered in any legislation in this regard.

Seriousness of the offence:

The fundamental purpose of the Criminal Code transportation offences is to contribute to the safety of all Canadians.

Assisting investigations:

The investigatory and procedural provisions are designed to assist the police in enforcing the law and to assist the courts in coming to a just verdict by focusing the trial on the elements of the offence. This is particularly important in cases where BAC is in issue.

Penalties:

To make the law effective, it is also necessary that the penalties for those who break the law reflect the gravity of their conduct and are a significant deterrent.

Public safety:

It is also important that Parliament set out clearly the parameters that it believes should guide the courts. Driving a car is a privilege and is subject to limits in the interests of public safety that include licensing, observance of the rules and sobriety.

Scientifically sound:

While impaired driving law is exceedingly complex and technical, it must be remembered that the fundamentals of the system are sound. The law is based on the scientific advice that has been provided over the years by the Alcohol Test Committee (ATC) and the Drugs and Driving Committee of the Canadian Society of Forensic Science.

Random Breath Testing:

Finally, Random Breath Testing (RBT) would represent a major reform and Parliament should indicate this is so, if it chooses to implement RBT. (How RBT could be implemented is discussed later in this paper)

Possible wording of the "purposes" could be:

Purposes

The purposes of this Part are:

1. to contribute to the safety of all Canadians
2. to assist law enforcement in the investigation of transport-related offences;
3. to provide simple and effective means of enforcing the provisions of this Part; and
4. to harmonize the penalty and prohibitions structure for transportation offences to reflect the harm that they cause and the risk of harm that they pose.

Declarations

It is recognized and declared that:

1. operating a conveyance is a privilege and not a right and is subject to limits regarding licensing, observance of the rules governing the operation of the conveyance including sobriety.
2. transportation offences, especially operating while impaired by alcohol or drugs, represent a significant contributing factor to collisions and pose a serious threat to the life, health and safety of Canadians.
3. approved instruments operated by qualified technicians provide reliable and accurate results of blood alcohol concentration.
4. the early and certain detection of alcohol impaired drivers by the random breath testing of drivers, a program that has contributed greatly to traffic safety in other free and democratic countries, will greatly assist in the protection of the public by removing more impaired drivers from the road.

Your views are sought on the benefits of statutory provisions expressing the purposes of the transport offence legislation.

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^[1] The Report and Response are available at:http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=4004073&Language=E&Mode=1&Parl=40&Ses=2

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