A VICTIM'S GUIDE TO THE CANADIAN CRIMINAL JUSTICE SYSTEM

Transcription

1 A VICTIM'S GUIDE TO THE CANADIAN CRIMINAL JUSTICE SYSTEM

2 This brochure is designed to assist victims dealing with the aftermath of an alcohol or drug-related crash. We hope that this booklet will be of value to you, and comfort you during this difficult time. MADD Canada (Mothers Against Drunk Driving) 2010 Winston Park Drive, Suite 500 Oakville, ON L6H 5R7 TOLL FREE: Phone: Fax: Internet: June 2009 Supported by a grant from The Law Foundation of Ontario

3 TABLE OF CONTENTS INTRODUCTION SECTION I: ROLES IN THE CRIMINAL JUSTICE SYSTEM....3 Coroner Police Crown Counsel Defence Counsel Judge and Jury Victims and their Families (i) Testifying as a Witness (ii) Courtroom Guidelines (iii) Information Provided to Victims and their Families (iv) Victim Impact Statements SECTION II: FEDERAL IMPAIRED DRIVING LAW Federal and Provincial Authority The Scope of the Federal Offences Gathering Evidence of an Impaired Driving Offence (i) Breath Testing (ii) Blood Testing (iii) Roadside Physical Coordination Testing (iv) Drug Recognition Evaluation (DRE) Testing The Federal Impaired Driving Offences (i) Impaired Driving (ii) Driving with a BAC Above.08% (iii) Impaired Driving Causing Bodily Harm or Death (iv) Driving with a BAC Above.08% and Causing Bodily Harm or Death (v) Failing to Provide a Sample or Participate in SFST or DRE Testing

4 (vi) Failing to Provide a Sample or Participate in SFST or DRE Testing, and Causing Bodily Harm or Death (vii) Driving While Prohibited or Suspended Defences (i) The Carter Defence (ii) The Last Drink Defence (iii) Narrowing the Defences The Penalties for the Impaired Driving Offences SECTION III: THE PROCESSING OF CASES Pre-Trial Trial Appeals Publication Bans SECTION IV: CORRECTIONS AND PAROLE Corrections The Parole Board Conditional Release SECTION V: VICTIMS RIGHTS LEGISLATION Criminal Code Victims Bill of Rights Legislation Victims Compensation Legislation SECTION VI: GLOSSARY OF TERMS

5 R. Solomon, Faculty of Law, C. Lynch J.D. and L. Towell J.D. Candidate, University of Western Ontario and Research Associates, MADD Canada Director of Legal Policy, MADD Canada LL.B. Candidates

6 A VICTIM S GUIDE INTRODUCTION This booklet provides an introduction to the Canadian criminal justice system for victims of alcohol or drug-related traffic crashes. It addresses situations in which the impaired driver is apprehended and charged. However, in some cases, no charges are laid because the impaired driver has died or fled, or there was insufficient evidence to lay charges. In these cases, the recovery process for victims and their families may be more challenging. A criminal prosecution is not a dispute between individuals, despite the fact that it often involves one person harming another. A crime is an offence against society. This is why the Crown initiates and controls the criminal prosecution against the accused, who is the person charged with the criminal offence. It is important to distinguish a criminal prosecution from a civil suit, which the victim initiates for the purpose of obtaining compensation for his or her losses. This booklet is designed to provide basic facts and advice about the Canadian criminal justice system and your role in it. We urge you to contact your local MADD Canada chapter or the local police department for specific information on the procedures and practices in your province or territory. For more information about MADD Canada s victim services and support programs, call MADD (6233) or visit our website at 1

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8 SECTION I: ROLES IN THE CRIMINAL JUSTICE SYSTEM Coroner Each province and territory has an office of the Chief Coroner and a network of local coroners throughout the jurisdiction. The local coroner is a practicing physician who has the authority to investigate all unnatural deaths, including those resulting from traffic crashes. In order to carry out their investigative duties, coroners are given authority to order an autopsy regardless of the wishes of the deceased s family. The coroner may also seek information from the victim s family, doctors, hospital records, and the police. A death certificate is completed as soon as possible, typically by the attending physician. The deceased s body cannot be released to a funeral home without an accompanying certificate. The funeral home will usually provide the family with several copies of the certificate. An autopsy, which is a medical examination of the body after death, is performed in a hospital or a similar medical facility. The autopsy identifies the deceased and determines the exact cause, location and time of death. The family can obtain a copy of the autopsy report from the coroner, though it may take up to six weeks before the report is available. For more information on the coroner s duties, please contact the local coroner s office, the local police department, a victim services office, a funeral director, or MADD Canada. Police The police are responsible for investigating traffic crashes. The location of the crash generally determines which police department will conduct the investigation. Incidents within a city are typically handled by the municipal police, and those outside of a city are investigated by the provincial police or RCMP. The police gather evidence to help determine the cause of the crash and whether federal or provincial charges are warranted. 3

9 The investigation process includes: interviewing witnesses, victims and the driver; determining if alcohol or drugs were a factor; collecting and cataloguing evidence; undertaking a collision reconstruction; deciding if charges will be laid; and determining and laying the appropriate charges. The victim does not play a formal role in deciding if charges will be laid or whether they will be altered or dropped. Once the police have laid the charges, the Crown decides how to proceed with the case. Crown Counsel The Crown counsel is the lawyer who prosecutes an accused in a criminal proceeding. There is a network of Crown and Assistant Crown counsel spread throughout each province and territory. These counsel operate under the direction of the provincial or territorial Attorney General. The office of the Attorney General is also responsible for establishing policies regarding criminal prosecutions. It is important to understand the legal framework in which the Crown operates: The Crown represents the state, not the victim. All accused are presumed to be innocent until proven otherwise. There are strict rules limiting the types of evidence that may be introduced to prove the accused s guilt. The Crown has the burden of proving each and every element of a criminal offence beyond a reasonable doubt. If there is not enough evidence to sustain a charge, the Crown may bring a motion to dismiss it. The Crown has a legal duty to disclose to defence counsel any relevant evidence it obtains or receives, including the victim impact statements that are submitted by the victim and his or her family. Crown counsel are expected to exercise their responsibilities in the best interests of society. 4

10 Thus, the Crown s goal is not to obtain a conviction at all costs, but rather to ensure that justice is served. It may be helpful for victims to contact the Crown or Assistant Crown assigned to the case. The police can provide you with the location and telephone number of the Crown s office, and you can phone for an appointment. The case will be filed under the accused s name and date of birth. In preparation for your appointment, make a list of your questions and concerns, so that you do not forget anything. This is your opportunity to ask questions, determine the status of the case, and express your feelings about the charges and the issue of plea bargaining. Bring some paper and a pen, as you may wish to make some brief notes and record the dates of the accused s upcoming court appearances. Defence Counsel A basic principle of our justice system is that all accused are entitled to a full and fair defence, regardless of how obvious the offence, unpopular 5

11 the person, or disturbing the crime. The defence counsel has duties both as the accused s legal representative and as an officer of the court. His or her duty to the accused includes ensuring that the Crown has proven every element of the offence beyond a reasonable doubt. This also includes putting forth any relevant arguments and defences, some of which may seem offensive to the victim and his or her family. The defence counsel s obligation to the court requires him or her to ensure that the interests of justice are served. Thus, for example, defence counsel cannot mislead the court or call a witness that he or she knows will be untruthful. Judge and Jury During a trial, the judge ensures that proper procedures are followed and that both the Crown and defence counsel act in accordance with their obligations to the court. The judge must also rule on the admissibility of evidence and the capacity of witnesses to testify. Based on the evidence presented at trial, the accused will be found either guilty or not guilty. In a trial by judge alone, the judge makes this determination. In a trial by judge and jury, the jury decides if the accused is guilty. In either case, if the accused is convicted, the judge decides on the sentence. 6

12 Victims and their Families Victims and their families may be an essential source of information for the investigating officer. Therefore, it is important that they provide as accurate an account of the events as possible. It is normal and expected that victims and their families will be emotional about the crash. A victim may be called to testify at trial by either the Crown or defence counsel. Witnesses may appear voluntarily or may be served with a subpoena, compelling them to appear in court and testify. If a person refuses to appear as a witness, a warrant can be issued for his or her arrest. In an effort to prevent a potential witness from being influenced by the testimony of the other witnesses, he or she may not be allowed in the court while they are testifying. Thus, victims and family members may be excluded from parts of the trial if they are going to be testifying. Witnesses should refrain from discussing the case with the general public or the media until after a verdict has been reached. Even then, witnesses should attempt to be as discreet as possible, particularly with the media. It is appropriate for victims and their family members to express their feelings about the crash and the outcome of the case. However, they should not use inflammatory language or engage in personal attacks on the accused, defence counsel, judge, or other parties in the case. (i) Testifying as a Witness As a witness, it is important to understand the process of giving testimony. First, you will be asked your name and to swear or affirm that you will tell the truth. Next, you will be questioned, first by the lawyer who called you as a witness and then by opposing counsel. The lawyer who called you may ask open-ended questions that allow you to tell the story in your own words. The process of being questioned by this lawyer is called direct examination or examination-in-chief. Opposing counsel will then question you, and his or her questions will likely be far more specific and challenging. The process of being questioned by opposing counsel is called cross-examination. It is important to listen carefully, state your position firmly and point out when you disagree with counsel s comments or suggestions. During the cross- 7

13 examination, opposing counsel may try to highlight inconsistencies or weaknesses in your testimony. Although it is not intended personally, cross-examination can be stressful, as opposing counsel may be very assertive. The following guidelines may help you while testifying: Relax. You are not expected to know the law or procedure. As a witness, your task is to provide evidence by answering questions. Concentrate on the specific question asked. Wait until the lawyer has finished speaking before responding. Take your time think about the question and your answer before responding. Try to speak loudly, clearly and slowly. Answer the specific question. Do not elaborate unless asked to do so. If you do not understand a question, ask for clarification. If you do not know the answer, it is all right to say so. Do not overstate a matter. A witness who overstates the facts, even unintentionally, will undermine his or her own credibility and possibly the case. Regardless of the lawyer s tone, you should try to answer questions civilly. Do not be drawn into arguing with the lawyer or losing your temper. If the lawyer s conduct is inappropriate, it is a matter that should be addressed by Crown counsel or the judge. Try to maintain your composure. While outbursts of anger against the accused are not appropriate, it is understandable that victims and their families may become emotional when talking about the crash, their loved ones and their sense of loss. Ask for a break if you need one. (ii) Courtroom Guidelines Your behaviour both inside and outside the courtroom is important. The case should not be discussed outside the courtroom. Never speak to the judge or a jury member, even if you encounter them outside the 8

14 courtroom. It is imperative that they remain free from bias and any appearance of bias. Be prepared for an emotional reaction to hearing the accused say not guilty. Although you may be aware of the plea in advance, many victims report a jarring response when they hear these words spoken aloud. These are often the first words that the victim has heard the accused speak. You may hear upsetting testimony or see gruesome photographs for the first time. The defence counsel may even allege that you or your loved one was responsible for the crash. This attempt to blame the victim can be very upsetting to the family. Nevertheless, this tactic should be seen as part of the accused s right to make a full answer and defence. If you feel yourself losing control of your emotions during the trial, leave the courtroom. Before the trial, advise any supporters who will be attending court to do the same. If there are any inappropriate disruptions during the trial, the judge may order the courtroom cleared of all spectators. Such disruptions can also lead to a mistrial. (iii) Information Provided to Victims and their Families In some provinces, the government is required to provide victims with specific information about the case and general information about the criminal justice system. However, in most provinces, victims will only be provided with such information if they request it. Speak to the Crown, investigating officer or court clerk, and indicate that you wish to be kept informed. This should be followed up by a letter to that effect. You may also request a copy of the accident report from the investigating officer. Review the report and notify the investigating officer of any inaccuracies or omissions, no matter how minor they may seem. The accuracy and thoroughness of this report is critical in any subsequent criminal proceeding. If it is possible that you will be called as a witness, your access to this report may be limited. (iv) Victim Impact Statements The Criminal Code gives victims the right to present a victim impact statement after the accused has been convicted, and prior to sentencing. The term victim is defined broadly to include a person who suffered a 9

15 physical or emotional loss as a result... of the offence. Consequently, both a victim directly injured in an impaired driving crash and his or her loved ones who subsequently suffered emotional loss are entitled to submit victim impact statements. A victim impact statement is a personal account of the financial, physical and emotional effects of the crime. If the victim has been killed or is incapable of preparing a statement, his or her spouse or another relative may write and present the statement on the victim s behalf. You may read your victim impact statement in court, ask the Crown to read it in court on your behalf, or submit a written statement. Victims are not required to present a statement, but many feel that it is important to tell the court how the offence has changed their lives. The judge must consider the victim impact statement in determining the appropriate sentence, but is free to impose any sentence that he or she considers appropriate. Good record keeping can assist you in preparing a victim impact statement and also help the police in their case. From the time of the crash, try to: take and verify photographs of the victim during recovery; keep all bills and receipts of expenses stemming from the crash; begin a daily record of all expenditures that you have incurred; and keep track of telephone or personal conversations that you have with anyone associated with the case, noting the date, time and subject of the conversation. Impaired driving crashes, particularly those resulting in serious personal injuries or death, have profound effects on families. It may take months or even years before victims and their families can fully appreciate the consequences of the crash. Therefore, it is advisable not to submit a victim impact statement immediately after the crash. While you should make notes as issues arise, it is best to finalize and submit your victim impact statement close to the date of trial or the sentencing hearing. In describing the financial impact of the offence, you should include all costs resulting from the crash and an estimate of future expenses (i.e. medical bills, costs of therapy, and loss of income). The impact of the 10

16 crash on your business or employment should not be overlooked. Many victims report ongoing problems in focusing at work that may persist long after their physical injuries have healed. This information will also be important in any civil action that the victim brings against the impaired driver. Wherever possible, actual costs should be used. It is advisable to keep your receipts and maintain a record of all relevant expenses. The physical impact section of the statement should describe all of the victim s injuries and their impact on his or her life. Explain whether the injuries are permanent or temporary, and whether the claims are based on medical or other professional advice. You should also indicate whether future medical problems are likely to develop. Finally, in describing the emotional impact of the offence, include the distress experienced by the victim and his or her family. In addition to grief, anger and a profound sense of sadness, many victims report various ongoing problems including serious sleep disorders, post-traumatic stress syndrome and clinical depression. If the victim or a family member has sought counselling, it may be appropriate to include a short statement from the therapist. The purpose of a victim impact statement is to document the crime s effects, not to reiterate the facts. Indeed, restating the facts may be counterproductive. If the facts in the statement differ from those presented at trial, the defence can challenge the facts as found at trial. It is also inappropriate to recommend a sentence, repeat rumours or make allegations about the offender. Anything you submit to the Crown, including a victim impact statement, must be disclosed to defence counsel. The offender s lawyer is entitled to question you about your statement. Moreover, once the statement has been entered into evidence at the sentencing hearing, it becomes part of the public record and is accessible to the media and the general public. You may update your victim impact statement for use in parole hearings, particularly if there is new information about the crime s impact. 11

17 If you have concerns or questions about what to include in your statement, talk to the Crown or a victim services worker. In addition, your local MADD Canada chapter can assist you in preparing your statement and provide sample statements that you may wish to use as a guide. 12

18 SECTION II: FEDERAL IMPAIRED DRIVING LAW Federal and Provincial Authority In Canada, Parliament has constitutional power over criminal law and procedure. The Criminal Code is a federal statute that sets out the impaired driving offences, enforcement procedures and penalties. The federal government also has constitutional power to create new impaired driving offences. Although impaired driving offences are created federally, enforcement of the federal law falls within provincial and territorial authority. Thus, the provinces and territories play a vital role in the apprehension, prosecution and punishment of offenders. The provinces and territories also have constitutional authority over highways and the licensing of drivers within their jurisdictions. Nearly all of the jurisdictions have used these powers to enact lengthy licence suspensions that apply to impaired driving offenders. Moreover, most have introduced vehicle impoundment, alcohol interlock, and remedial treatment programs. As well, the provinces and territories have authority over automobile insurance and civil liability claims. The Scope of the Federal Offences Many people wrongly assume that they must be driving a car on a public road to be charged with an impaired driving offence. While most cases arise in these circumstances, the Criminal Code defines the impaired driving offences very broadly. First, the offences apply not only to those who are driving, but also to those who have care or control of a motor vehicle. The courts have defined care or control to include virtually any 13

19 act that could set the vehicle in motion, even accidentally. Individuals can be held to have care or control if they use their vehicles as a place to sleep or are warming up the engine. Moreover, the Criminal Code deems individuals found in the driver s seat to be in care and control, unless they can prove that they did not occupy that seat for the purpose of setting the vehicle in motion. Second, the term motor vehicle is defined to include any vehicle, except a train or streetcar, which is propelled by means other than muscle power. This broad definition encompasses cars, trucks, motorcycles, motorized bicycles, snowmobiles, farm tractors, all-terrain vehicles, golf carts, and even self-propelled lawnmowers. Third, there is no geographical limit on where the offences may be committed. Consequently, individuals may be convicted of an impaired driving offence if they are apprehended on their own driveway or on a private parking lot. Gathering Evidence of an Impaired Driving Offence In order to arrest an individual for an impaired driving offence, the police must have a firm evidentiary basis for the charge. Until recently, an officer s power to collect evidence was limited to the Criminal Code s breath and blood-testing provisions. As of July 2008, the police were given authority, in specific circumstances, to demand that impaired driving suspects participate in physical coordination testing and drug recognition evaluation. 14

20 (i) Breath Testing Although a person s blood-alcohol concentration (BAC) can be determined by analyzing urine, saliva or blood, the majority of cases involve breath samples. The Criminal Code authorizes the police to use two kinds of machines for analyzing breath samples: approved screening devices (ASDs) and approved instruments. ASDs, also called roadside screening devices, are small hand-held machines carried in patrol cars. The police can demand a breath sample for analysis on an ASD if they reasonably suspect that a driver has any alcohol in his or her body. This is not a particularly difficult standard for the police to meet. A reasonable suspicion can be based on the manner of driving, the odour of alcohol on the driver s breath or the driver s admission that he or she was just at a bar. The police need not believe that the driver is drunk, impaired or committing an offence. Moreover, the Canadian courts have held that the suspect is not entitled to consult with a lawyer prior to taking an ASD test. The readings from ASDs are not admissible as evidence of the driver s BAC in criminal proceedings, but can provide the police with grounds for demanding breath tests on an approved instrument. Since ASDs are typically set to register a fail at a BAC of.10%, a driver s failure on the screening test provides the police with the reasonable grounds to believe that the driver is committing the federal offence of driving with a BAC in excess of.08%. Approved instruments are larger, more sophisticated machines that are typically kept at the police station or in specially equipped vans. Testing must be done by a qualified technician, in accordance with the Criminal Code s detailed procedures. The police can only demand breath samples for analysis on an approved instrument if they have reasonable grounds to believe that the suspect has committed an impaired driving offence within the previous three hours. Reasonable grounds are typically defined as facts that would convince an honest and objective individual to have a firm belief in the suspect s guilt. Thus, the grounds for demanding breath testing on an approved instrument are more limited than those for 15

21 demanding breath testing on an ASD. Unless the driver has failed an ASD test or is obviously impaired, the police may have difficulty proving that they had grounds to demand testing on an approved instrument. If the Criminal Code procedures are followed, the readings from the approved instrument are admissible in evidence to prove that the driver s BAC exceeded.08%. Consistent with their function, approved instruments are often referred to as evidentiary breath-testing machines. Once the police demand an evidentiary breath test, they must inform the suspect of his or her right to legal counsel, and provide him or her with a reasonable opportunity to consult with counsel. An infringement of this right will nearly always lead to the exclusion of any evidence that is subsequently obtained and, in turn, result in the charges being dropped or an acquittal. Although the time limit for demanding evidentiary breath samples was extended in 1999 from two to three hours, no parallel changes were made in the evidentiary rules concerning the breath-test results. Sometimes the police, through no fault of their own, cannot conduct the evidentiary tests within two hours. In these cases, the BAC readings cannot be used in evidence unless the Crown is willing to call a toxicologist to calculate the accused s BAC results back to the time of the offence. Except in cases 16

22 involving death or serious bodily injury, the Crown will typically drop the charges, rather than go to the time and expense of retaining a toxicologist, whose evidence may generate additional legal challenges. Thus, despite the 1999 amendments, many impaired drivers continue to evade criminal liability because the evidentiary breath testing cannot be conducted within two hours. (ii) Blood Testing The Criminal Code authorizes the police to demand blood samples from suspected impaired drivers, but only in very limited circumstances. First, the police must have reasonable grounds to demand evidentiary breath samples. Second, the police must have reasonable grounds to believe that the driver is incapable of providing breath samples, or that it is impracticable to obtain them due to the driver s physical condition. Third, as with breath samples, the demand for blood samples must be made within rigid time constraints, which may expire before the police can arrange for the samples to be taken. The Criminal Code also permits the police to apply for a special judicial warrant, which authorizes the taking of blood samples from impaired driving suspects who are incapable of responding to a demand for a sample. However, these warrants are only available in very narrow circumstances. The police must have reasonable grounds to believe that the suspect committed an impaired driving offence within the preceding four hours, and that the suspect was involved in a crash causing death or bodily injury. The police must also have reasonable and probable grounds to believe that a medical practitioner is of the opinion that the suspect is unable to consent to providing a blood sample and that the taking of the sample would not endanger the suspect s life or health. Parliament introduced these blood-testing provisions in 1985 because impaired drivers who were taken to hospital following a crash were unable to be subject to breath testing and typically avoided criminal liability. However, given these statutory limits and the courts interpretation of them, the Criminal Code s blood-testing provisions have proven to be unworkable and are rarely used. Contrary to Parliament s intent, impaired 17

23 drivers who need or demand to be taken to hospital remain largely immune to criminal liability. (iii) Roadside Physical Coordination Testing Although the police were permitted to ask an impaired driving suspect to participate in physical coordination tests at roadside, the Criminal Code did not require the suspect to do so. The July 2008 Criminal Code amendments authorized the police to demand that a driver participate in physical coordination testing if they reasonably suspect that he or she has any alcohol or drugs in his or her body. Moreover, the police were explicitly authorized to videotape the testing. As with ASD testing, physical coordination testing can only be sought to determine if there are 18

24 grounds for demanding an evidentiary breath, blood or drug test. Thus, physical coordination testing will be used primarily as a screening tool to demand further testing. The physical coordination tests are based on what is known as Standard Field Sobriety Testing (SFST). SFST is used throughout the United States and other countries, and comprehensive research has established that it is accurate in assessing driver impairment. SFST is composed of three elements: the walk-and-turn, one-leg stand, and 19

25 horizontal gaze nystagmus (HGN) tests. The walk-and-turn test involves walking heel-to-toe in a straight line, turning around, and then walking back while receiving instructions from the officer. The one-leg stand test involves standing on one leg while counting. Both tests focus on the individual s balance, coordination and ability to respond to simple instructions. The HGN test assesses the automatic jerking of the eye while following a light, which becomes more pronounced as an individual s BAC rises. A driver s failure on the SFST provides the police with reasonable grounds to believe that he or she is impaired, and thus the grounds to demand further testing. (iv) Drug Recognition Evaluation (DRE) Testing While Canada s first drug-impaired driving offence was created in 1925, the police had virtually no means of enforcing this prohibition. The July 2008 amendments finally gave the police the power to collect evidence of drug-impaired driving. If the police have reasonable grounds to believe that a driver has driven while impaired by drugs, they may demand that he or she accompany them to the police station and participate in a DRE. The amendments authorized specially trained and certified officers to conduct the DRE in order to determine if the driver is impaired by drugs and, if so, the class of drugs involved. DRE is designed to identify seven classes of drugs: depressants (e.g. barbiturates and alcohol), inhalants (e.g. gasoline), phencyclidine (e.g. PCP or angel dust), cannabis (e.g. marijuana, hashish and hash oil), stimulants (e.g. amphetamines and cocaine), hallucinogens (e.g. LSD and MDA), and narcotics (e.g. heroin, morphine and codeine). Developed and widely used in the United States, DRE involves two major components. The first is designed to determine if the driver is impaired by a drug and, if so, to identify the class of drugs involved. The second component establishes whether a bodily fluid taken from the suspect contains the identified class of drugs. More specifically, the first component comprises 11 separate steps. If not previously done, a breath test is conducted to rule out alcohol impairment. The remaining steps include: interviewing the arresting officer and the suspect; various eye examinations; and checking the suspect s temperature, pulse, blood 20

26 pressure, muscle tone, and body for common injection sites. The suspect is also subject to several divided attention tests (similar to those in the SFST) to confirm that his or her ability to drive is impaired. The first component ends with a written report. If the officer concludes that the suspect is not impaired, the suspect is released. However, if the officer concludes that the suspect is impaired, the officer must identify the class of drugs involved. It is only at this point that the officer is authorized to demand a sample from the suspect. The second component, which entails the taking and analysis of a blood, urine or saliva sample from the suspect, simply confirms the presence of the identified class of drugs. The result does not provide evidence of impairment. If no drug is present, the charge against the suspect will be dropped. Similarly, the charge will be dropped if an impairing drug is found but it is not in the class of drugs identified by the officer. Thus, a case only proceeds to trial if the analysis of the sample confirms the officer s conclusion about the class of drugs involved. While the police finally have some ability to enforce Canada s drugimpaired driving prohibition, DRE is complex, technical and time consuming. Given that Canadian judges are unfamiliar with DRE and that impaired driving charges are aggressively defended, it may be some time before this evidence is generally accepted by the courts. Moreover, DRE will inevitably be challenged under the Canadian Charter of Rights and Freedoms. Consequently, DRE will likely be used only when the accused s drug impairment is readily apparent. The Federal Impaired Driving Offences An impaired driving incident may involve various federal criminal offences, including dangerous driving, leaving the scene of the crash to avoid civil or criminal liability, and criminal negligence causing death. In addition, there are seven specific offences related to impaired driving: operating or having care or control of a motor vehicle while one s ability to do so is impaired by alcohol or a drug; operating or having care or control of a motor vehicle while having a BAC in excess of.08%; 21

27 impaired driving causing bodily harm or death; driving with a BAC above.08% and causing bodily harm or death; failing to provide a sample or participate in SFST or DRE testing without a reasonable excuse; failing to provide a sample or participate in SFST or DRE testing without a reasonable excuse and causing bodily harm or death; and driving while prohibited under federal law or while suspended under provincial law for a federal impaired driving offence. Impaired driving causing bodily harm or death, driving with a BAC above.08% and causing bodily harm or death, and failing to provide a sample or participate in physical coordination or DRE testing and causing bodily harm or death are indictable offences. Consequently, these offences are subject to more formal criminal procedures. For example, the accused is entitled to a preliminary hearing and may elect to be tried in a higher court by a judge or by a judge and jury. Generally, indictable offences are also the most serious crimes and carry the most onerous penalties. The remaining impaired driving offences are hybrid or dual procedure offences, which means that the Crown can choose to proceed by way of summary conviction or indictment. If these offences are tried by summary conviction, as is nearly always the case, they are subject to lower maximum penalties than if the Crown proceeds by indictment. 22

28 (i) Impaired Driving It is an offence to operate or have care or control of a motor vehicle if one s ability to drive is impaired by alcohol, drugs or a combination of alcohol and drugs. The key issue is whether the person s ability to drive is impaired, not whether he or she is driving in a careless or dangerous manner. Similarly, the amount of alcohol or drugs an individual has consumed is irrelevant. Consequently, a person can be convicted of impaired driving even if his or her BAC was below.08%. The police may rely on several factors in determining whether the suspect s ability to drive is impaired. These factors may include: the way in which the car is driven; the odour of alcohol on the driver s breath; and the driver s slurred speech, lack of coordination while getting out of the car, clumsiness in walking, and inappropriate responses to questions. The Canadian courts have defined the word impaired broadly, in terms of whether the driver had complete control of the vehicle. Nevertheless, many judges apply a far more restrictive test, which equates impairment with obvious profound intoxication. (ii) Driving with a BAC above.08% It is an offence to operate or have care or control of a motor vehicle if one s BAC exceeds.08%. It does not matter that a person appears sober, is not impaired or is driving safely. This offence is based solely on whether the suspect s BAC exceeded.08% while he or she was driving. The amount of alcohol a person must consume to have a BAC above.08% varies primarily with his or her weight, the rate of consumption, when the individual last ate, and the rate at which the person s body breaks down alcohol. While it is an offence to drive with a BAC above.08%, most police will only consider charging suspects if their evidentiary BACs are.10% or higher. Given certain recognized defences and the margin of error accepted by the courts, the police realize that most judges will not convict an accused with a BAC below.10%. (iii) Impaired Driving Causing Bodily Harm or Death These two offences were enacted in 1985 to ensure that impaired drivers who caused serious crashes were subject to a more substantial 23

29 charge than simple impaired driving. The 1985 amendments permitted the police to charge an impaired driver who injured or killed another with the indictable offences of impaired driving causing bodily harm or impaired driving causing death, both of which carry lengthy maximum sentences. Establishing the driver s impairment and the injury or death is relatively straightforward. However, it has been more difficult to prove beyond a reasonable doubt that the driver s impairment, as opposed to some other factor, was a cause of the injury or death. Although the established test requires the Crown to prove only that the driver s impairment was a cause beyond an insignificant level, many courts have applied a more stringent test. The available statistics establish that only a very small fraction of impaired drivers who kill or injure others are charged with these more serious offences. Moreover, a relatively small fraction of those charged with these offences are convicted of them. In large measure, the low charge and conviction rates are attributable to the limitations in the Criminal Code blood-testing provisions. These problems prompted Parliament to enact two new impaired driving offences in 2008: driving with a BAC above.08% and causing bodily harm or death; and failing to provide a sample or participate in SFST or DRE testing and causing bodily harm or death. (iv) Driving with a BAC above.08% and Causing Bodily Harm or Death The Crown must prove beyond a reasonable doubt that the accused s BAC was above.08% and that he or she caused a crash involving bodily injury or death. These offences do not require proof that the crash was caused by the accused s illegal BAC or impairment. In essence, it is an offence to cause an injury or fatal crash while having a BAC above.08%. Drivers cannot escape liability by claiming that the crash was due to something other than alcohol, such as a momentary lapse in attention, poor road conditions or other factors. By eliminating the need to prove the causal link between the accused s BAC and the crash, these offences make it far easier for the Crown to obtain convictions. However, the legislation does not address the significant obstacles that the police face in attempting 24

30 to obtain breath and blood samples from impaired drivers who have been taken to hospital following a crash. (v) Failing to Provide a Sample or Participate in SFST or DRE Testing It is a criminal offence for a driver to refuse or fail to comply with an officer s demand for a breath, blood, urine or saliva sample, unless the driver has a reasonable excuse. Prior to July 2008, the offence was limited to failing to provide a breath or blood sample. With the enactment of broader police powers to investigate drug-impaired driving, the offence was expanded to include failing to provide a urine or saliva sample. The July 2008 amendments also made it a federal criminal offence to fail to participate in SFST or DRE testing without a reasonable excuse. Provided the officer met the legal requirements for demanding the sample or test, the fact that the individual was driving safely or was not impaired is irrelevant. The essential element of this offence is the refusal or failure to comply with the demand. Moreover, an individual can be convicted even if the officer did not warn him or her that a refusal could lead to criminal 25

31 liability. The courts have limited the term reasonable excuse to matters such as an inability to understand the demand or to physically comply with it, and to cases where the officer did not have the required grounds for making the demand. (vi) Failing to Provide a Sample or Participate in SFST or DRE Testing, and Causing Bodily Harm or Death Previously, most impaired drivers who injured or killed someone and then refused to provide a sample could only be charged with refusing to provide a sample. By not providing a sample, the impaired driver denied the police the BAC evidence needed to lay the more serious charge of impaired driving causing bodily harm or death. This tactical refusal largely removed the possibility that the impaired driver would face the lengthy prison sentences that could result from a conviction for these offences. The July 2008 amendments made it an indictable offence for drivers to fail to provide a sample or to participate in SFST or DRE testing, if they knew or ought to have known that they killed or injured someone in a crash. These offences carry the same maximum penalties as impaired driving causing bodily harm or death. Thus, the amendments eliminated the previous benefits that resulted from being uncooperative. These new offences will encourage impaired drivers to provide samples and participate in SFST and DRE testing. However, the legislation does not broaden the circumstances in which police can lawfully demand a sample from suspected drinking drivers. Similarly, the new SFST and DREtesting provisions will have little impact on impaired drivers who are hospitalized following a crash. Moreover, these offences will be subject to numerous challenges under the Canadian Charter of Rights and Freedoms. (vii) Driving While Prohibited or Suspended Nearly all impaired driving offenders are subject to both a federal driving prohibition and a lengthy provincial suspension. Nevertheless, most offenders continued driving, at least occasionally. In 1985, Parliament attempted to address this issue by creating a separate criminal 26

32 offence of driving while prohibited under federal law or while suspended under provincial law for a federal impaired driving offence. Defences The Criminal Code contained statutory presumptions that were essential in prosecuting the offence of driving with a BAC above.08%. For example, the results of evidentiary breath and blood tests were presumed to be evidence of the accused s BAC at the time of driving, in the absence of evidence to the contrary. Until the July 2008 amendments, defence counsel frequently used the Carter (or two drink ) defence, and the last drink defence to rebut these statutory presumptions and secure acquittals. (i) The Carter Defence The Carter defence was typically based on the accused s testimony that he or she consumed only a small amount of alcohol (typically two drinks) prior to driving. A defence toxicologist was then called to testify that if the accused had, in fact, consumed such a small quantity of alcohol, his or her BAC would not have exceeded.08%. Since the toxicologist s evidence was based solely on the accused s self-reported consumption, it added nothing to the credibility of the accused s testimony. If the court accepted the accused s evidence, it was usually considered sufficient evidence to the contrary to rebut the presumptions that the test results accurately measured the accused s BAC. In such circumstances, the breath or blood evidence was disregarded, even if the evidentiary tests were administered properly, were consistent with the results of the roadside screening test and were supported by the officer s evidence that the accused showed signs of impairment. (ii) The Last Drink Defence The last drink defence was typically based on the accused s testimony that he or she quickly consumed a large quantity of alcohol immediately before driving. The defence, supported by toxicological evidence, then contended that very little of this alcohol would have been absorbed into the accused s bloodstream when he or she was stopped by the police. 27

33 Thus, the accused argued that his or her BAC was below the legal limit when driving, and only rose above that limit in the interval between being stopped and being tested. The last drink defence did not challenge the accuracy of the BAC reading at the time of testing, but rather questioned whether that reading reflected the accused s BAC at the time of driving. Again, if the defence testimony was accepted, the breath or blood evidence was disregarded and the accused was acquitted. (iii) Narrowing the Defences These challenges resulted in the rejection of scientifically sound evidence of the accused s BAC, typically in favour of the accused s unsubstantiated consumption claims. No other country accepts these claims in impaired driving cases. Indeed, Canadian courts do not reject scientific evidence of other offences (e.g. certificates of drug analysis) based merely on the accused s denial of culpability. Some Canadian defence counsel have boasted about being able to get impaired drivers acquitted. In a newspaper article entitled How Big Bucks Can Beat.08%, one Saskatchewan lawyer bragged about having never lost more than 1 of his more than 50 impaired driving trials per year. Other lawyers put glowing testimonials on their websites from thankful impaired drivers who escaped criminal liability on technicalities. These defences generated increasing public, police and government concern. The July 2008 amendments strengthened the statutory presumptions and greatly narrowed the Carter defence. First, the amendments made evidentiary breath-test results conclusive proof of the accused s BAC, unless he or she introduced evidence tending to show that the breathalyzer was malfunctioning or misused, that the malfunction or misuse resulted in the BAC reading above.08%, and that his or her BAC did not in fact exceed.08% at the time of driving. Second, the amendments specifically stated that evidence of the accused s alcohol consumption, absorption and elimination rates, or related calculations do not constitute evidence that the breathalyzer was malfunctioning or misused. Parallel provisions were enacted in regard to evidentiary blood tests. 28

34 The July amendments had a more limited impact on the last drink defence. Nevertheless, in order to raise the defence, the accused must introduce evidence tending to show that his or her alcohol consumption was consistent with both a lawful BAC when driving and the evidentiary breath or blood test results. The Penalties for the Impaired Driving Offences As the following charts illustrate, the impaired driving offences carry potentially severe sentences, especially for repeat offenders. In addition to these penalties, a judge may issue a probation or restitution order. The terms of probation may include abstaining from alcohol, undertaking community service, submitting to an alcohol or drug assessment, participating in treatment, and any other reasonable conditions that the court considers desirable. A restitution order compels the offender to compensate the victim, but these are rare in impaired driving cases. Chart I outlines the penalties for the "simple" impaired driving and failing offences, as they are called. The 2008 amendments increased many of the minimum and maximum penalties for these offences. 29