- O. Sasek (law student)
Bill C-46 Raises Many Red Flags - Impaired driving or impaired civil liberties?
In mid-December 2018, the Canadian government implemented Bill C-46, this new controversial legislation amended the Criminal Code by introducing new impaired driving regulations. As a result, Canada now has some of the most stringent and punitive impaired driving laws in the world. However, this legislation should not be celebrated, as it is overreaching, irresponsible, and will most likely be deemed unconstitutional in the near future. Make no mistake, I am in favor of a strong stance on impaired driving as it is a terrible offence that comes with great social costs, impacting the lives of many Canadians. But, while the intent behind Bill C-46 is commendable, it fails to strike a balance between civil rights and public safety, putting Canadians civil liberties in jeopardy.
Bill C-46 was enacted in response to Bill C-45 known as the “Cannabis Act”, which regulated and legalized marijuana in Canada. The Liberal government, which prides itself on operating within the confines of the Charter, stiff-armed this legislation through parliament in order to address attacks from the right and rising public concern over the potential increase in impaired driving as a result of the legalization of marijuana. The rushed nature of this Bill has resulted in it missing a number of crucial details, making it inconsistent with Charter values.
Under the new legislation, section 320.27 gives police the authority to conduct random and mandatory impaired driving tests without any reasonable suspicion that the driver is under the influence. Whereas previously under the law, police were only able to conduct impaired driving tests if they had a reasonable suspicion that the driver had been drinking. This ‘reasonable suspicion’ was based on various behavioral clues and observations, which included slurred speech, odors of alcohol, admission of consumption, and vehicle operation.
The new legislation has completely abolished the already low-threshold requirement of reasonable suspicion and gives law enforcement the ability to conduct a road side breath-test whenever they want. This new mandatory random breath-testing regime expands state power exponentially and contains provisions that will significantly impact section 8 (protection against unreasonable search and seizure) and 9 (the right not to be arbitrarily detained or imprisoned) of the Charter. This increase in police power will not come without costs, Canada has a history of police violence and abuse of power. Giving police a discretionary personal search power is analogous to the phenomenon of “carding” and this will disproportionately target marginalized groups, who are already subjected to discrimination by police1 Consequently, this could substantially increase the problem law-enforcement already has with racial profiling.
Bill C-46 exhibits striking similarities to Bill C-73 the Dangerous and Impaired Driving Act, which was condemned by the Public Safety Committee stating, “legal problems with the Bill far outweigh the potential salutary effects.” Impaired driving provisions are already among the most litigated in the Criminal Code and this new legislation will result in increased burdens on our judicial system, which is already severely overwhelmed. This may impair an accused individual’s section 11 Charter right to be tried within a reasonable amount of time and will leave victims of impaired driving seeking closure for extended durations of time.
Section 320.14 states that being impaired within two hours of driving is now also an offence. This can lead to some absurd convictions. For example, assume that I drove to a wine tasting event sober with the full intention of leaving my car overnight. I consume a few glasses of wine and suddenly the police show up and demand a breath-test because it is within two-hours since I last operated my vehicle. I could theoretically be charged with impaired driving. This reverses the burden of proof, treating an accused as guilty until proven innocent. This would require an accused to hire a toxicologist in order to corroborate their claims. It is up to the Crown to prove that an accused person committed a crime and is guilty, not up to the accused to prove that he or she is innocent.
This legislation is sloppy at best and although some Canadians may not take issue with these mandatory random breath-tests because their experiences with police are minimal, this legislation should not be accepted quietly. Safer roads are also not a guarantee, as harsher punishments do not always deter offenders2 Again, I do not think impaired driving should be tolerated in any respect, but Bill C-46 is inconsistent with our Charter values and is a slippery slope for increased state power. This legislation is not a justified limitation on our freedoms as outlined in section 1 of the Charter and thus it will most likely be deemed unconstitutional by the Supreme Court of Canada when it is inevitably challenged.
1 Anthony Laycock, “Bill C-46, and Act to amend the Criminal Code and to make consequential amendments to other Acts” (28 February 2018), online: The Criminal Lawyers Association < https://www.criminallawyers.ca/wp-content/uploads/2018/03/C46Submissions.pdf> [perma.cc/WC9V-V67R].