Recent Changes To Federal Impaired Driving Legislation

Recent changes to the criminal code have raised a number of questions.

The federal government has already passed new legislation which came into effect July 2, 2008, but the question remains as to whether or not that change is going to apply retroactively to a person who already has a case within the system or who was charged prior to July 2. There is no question that it will apply to charges on or after the date. The Ontario Ministry of the Attorney General has not been clear about the retroactive application of this legislation. My understanding is that in some other provinces, notably Quebec, the provincial attorney general’s office is taking the view that persons charged prior to July 2 will continue to have all the same rights in the legislative framework as they did prior to July 2, and that will last until the conclusion of their case. It is certainly possible that in Ontario, the Attorney General is going to take the opposite view, and anyone with a trial after July 2 will be held to the new legislation, even if they were charged prior to that date.

There is another part of the new legislation that substantially affects the more common defences used in impaired driving cases. Up to now, someone who is charged with impaired driving on the basis of a Breathalyzer test could use what is colloquially referred to in the media as the “two beers” defence, which is based on “evidence to the contrary”. Previously, when the Breathalyzer gave a reading of over 80, the individual could gather their own evidence, such as reports from their own toxicologist in conjunction with a report on their particular biological vitals, such as age, weight, sex. We would try to be as precise as possible in order to show that the number from the Breathalyzer indicating a blood alcohol level over 80 could not be right, because, based on the drinking pattern testified to by the accused the person could only have blown an acceptable level below 80. This evidence to the contrary defence is known as the “two beers effect” because people will commonly say: ‘I only had two beers, it is impossible that I could have blown the 120 or whatever it is the Breathalyzer states that I blew, and I can provide proof of that with witnesses and other evidence (such as bar or credit card receipts)’.

The new legislation takes away that defence of evidence to the contrary and states that the only way you can really challenge the results of the Breathalyzer machine is if you have evidence of either operator malfunction or machine malfunction. Those cases are rare, although not non-existent, but it’s certainly a substantial change in the legislation and our expectation is that it will remove the common “two beers” defence that was previously available to people charged with over 80 offences.

This is a significant change, and just as significant is the decision as to whether that legislation is retroactive to charges before July 2, 2008. People who already have cases in the system are very anxious to find out if this defence is still available. Ultimately, one case will go to the Court of Appeal and then we will have a definitive judgement, even if it must go all the way to the Supreme Court of Canada.

So the situation is definitely in a state of flux, and what is also in a state of flux is the constitutionality of this change. We think that there is at least some reason to argue that retroactively removing the scientific defence – the “two beers” defence – creates a scenario that violates a person’s constitutional rights. It also undermines the fundamental right of an accused person to raise a reasonable doubt as to their guilt. We expect to see some challenges to the new legislation.

If you, or someone you care about, is dealing with criminal law issues in the Toronto,Ontario Region, contact Adler Bytensky Prutschi Shikhman for a consultation.

This information is taken from an interview from November 29, 2007 with Ed Prutschi, Criminal Lawyer with Adler Bytensky Prutschi Shikhman, Toronto Criminal Lawyers. The article is provided as an information service only and should not be used as legal advice. Laws vary by jurisdiction so please consult with an appropriate legal professional if you are looking for help with a specific situation.