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Bill C-46 will challenge Canadian civil liberties: Engel

The federal government’s Bill C-46 will bring "sweeping" changes to Canada’s impaired driving law that carry significant constitutional implications, says Toronto criminal lawyer Michael Engel.

“These changes will challenge the civil liberties of Canadians,” he tells AdvocateDaily.com.

“We, as a society, have to strike a balance between combating the evil of impaired driving and certain constitutionally guaranteed rights and freedoms that have to be respected.”

Bill C-46 is an omnibus piece of legislation that is meant to repeal and rewrite the driving provisions of the Criminal Code, and deals with the legalization of marijuana and drug testing, notes Engel, principal of Engel DUI Law, a Toronto firm that focuses on impaired driving offences.

The bill now rests with the Senate, which adopted a new report on the legislation from its Standing Senate Committee on Legal and Constitutional Affairs on June 4. 

The Canadian Bar Association (CBA) has said the proposed bill "would put the law back to square one, bringing with it a deluge of cases arguing interpretation and constitutionality of the new provisions,” reports the CBC.

Engel agrees and points to three main constitutional concerns around the bill, including that it removes an individual’s right to be secure against unreasonable search and seizure, the right against self-incrimination, and criminalizes what’s called bolus drinking.

Firstly, the proposed law, as it was first written, removed the need for reasonable suspicion, Engel says.

“Although police have wide powers to stop motorists, their current legal authority to intrude further, such as through a breath demand, depends upon a reasonable suspicion that the driver has alcohol in their body,” he says. 

“Bill C-46, as it was initially drafted, permitted the police to engage in random breath testing. The only requirement for police to make a demand for a breath sample was to have an approved screening device in their possession.”

The Senate’s legal and constitutional affairs committee, however, voted to remove that provision from the bill that would have allowed police to conduct random roadside breath tests without reasonable grounds to suspect the driver may be impaired, reports the Huffington Post. 

Conservative Sen. Denise Batters proposed the amendment on the grounds that it was likely to violate the Charter and would be struck down by the courts as unconstitutional, says the article. 

Engel concurs, describing random screening as “an affront to the constitutional right against being subject to unreasonable search and seizure.”

There are other troubling aspects of Bill C-46, he says. 

One of those provisions appears to legislate against an Ontario Court of Appeal (OCA) decision that was meant to protect a motorist’s right not to incriminate themselves, Engel says. When drivers are involved in an accident they are required by law to report the details to the police, he adds. 

The key issue in this OCA matter was whether statements compelled under the Highway Traffic Act are admissible in a criminal trial. The court said in its ruling that such statements must be excluded as evidence where s. 7 of the Charter applies.

Engel says the court ruled that such statutorily compelled statements, which include the admission of being the driver after a crash, cannot be used by the Crown for any purpose.

"This means that such an admission would not only be inadmissible to prove the fact of driving but would also invalidate the grounds to make a breath demand since the fact of operation is also a constituent element for the purpose of making a valid breath demand," he adds.  

"Despite the Crown’s continued opposition to this 'use immunity' principle, this case confirms an earlier decision of the court and the law in Ontario remains that in circumstances where an officer gains the grounds to make a breath demand entirely from an individual who is legally obliged to remain at the scene and also 'report' they’re the driver, that invalidates the breath demand," Engel says. 

The OCA, just this month in another ruling, affirmed that right, he adds. 

“But Bill C-46 is meant to overcome this constitutional entitlement of freedom from incriminating yourself in such circumstances, Engel says.

Criminalizing bolus drinking is another problematic part of the proposed C-46, he says. 

“This provision involves the elimination of a well-recognized requirement in drinking and driving law that the breath test must be done as soon as practicable,” Engel says. 

Bolus drinking can be used as a defence to raise a reasonable doubt that an individual’s blood-alcohol concentration (BAC) was over 80 at the time of driving when the accused drank just before getting into their car so the alcohol was still being absorbed and consequently, the concentration was under 80 at the time of driving, says the Department of Justice website. It’s also been used where the driver consumed drinks after being stopped by police or after a collision, supposedly to calm their nerves, it says. 

“It is then argued that this ‘intervening drink’ raised the BAC post-driving and that the driver was actually under 80 at the time of driving,” says the website. 

Engel says this is the biggest legislative change contemplated by C-46 and means that the proof of impaired driving will no longer focus on the time of driving but rather, on the time of testing.

“The purpose of this change is to criminalize bolus drinking, as well as post-driving drinking,” he says. 

Engel says changes to the Criminal Code about a decade ago “respected the fact that there still could be some circumstances where a person could have consumed alcohol proximate to the time of driving and could have a blood-alcohol level that was under the legal limit at the time of the police stop but still register a reading over the limit later at the police station.

“The idea is that the alcohol consumed had not yet been absorbed into their bloodstream," he says. The latest change proposed to the Criminal Code through Bill C-46 removes this defence, Engel says.

This provision also removes the requirement for the Crown to establish that the breath test was conducted as soon as practicable, Engel says.

To underscore the importance of this, Engel points to an Ontario Superior Court of Justice decision, which says "The 'as soon as practicable' requirement is no doubt meant to ensure that liberty deprivations caused by the need to secure breath samples are reasonable in their duration."

Removing this requirement, Engel says, "does away with an important safeguard in the unusual coercive aspects of the detained motorist having to, under statutory compulsion, provide samples for the Crown to use against them.”

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