December 18, 2018 – New Police Powers for Breath Testing to Start

In our last blog we wrote about some upcoming changes to the criminal law in Canada relating to impaired driving as well as a recent Supreme Court of Canada case relating to impaired driving. For a more in-depth look, please click here.

In overview, a part of Bill C-46 comes into force on December 18, 2018. This part of Bill C-46 expands the powers of police to require drivers to perform a road-side breathalyzer test. Previously, the police needed to have reasonable suspicion that a driver had alcohol in their blood and was operating a vehicle before demanding that the driver provide a road-side breath sample. If the driver refused, they could be charged with the criminal offence of refusing to provide a breath sample. Under the new changes to the law the police no longer need reasonable suspicion to demand a road-side sample of breath from a driver, but can demand it from any driver at any time. Put simply, what this means is any police officer can pull over any driver at any time and demand a road-side breath test for no reason and if the driver refuses, they can be charged with the criminal offence of refusing to provide a sample.

The Supreme Court of Canada recently released its decision in R v Gubbins (2018 SCC 44). In that case the Court restricted the ability of accused persons to routinely have access the maintenance records of breathalyzer machines.

Just yesterday the Court released its reasons for judgment on a case called R v Cyr-Langlois (2018 SCC 54). What that case centred around was the requirement for a police officer investigating an impaired driving offence to personally observe the accused face-to-face for 15 to 20 minutes before taking the 2 official breathalyzer tests at the police detachment. This requirement exists in law to make sure that the breathalyzer test results are not skewed by residual mouth alcohol. If an accused person burps/belches or vomits, and there is alcohol in their stomach, that alcohol can be present in their mouth for up to 20 minutes. That alcohol left in their mouth can make a breathalyzer show a much higher result than the actual amount of alcohol in the person’s blood which the test is meant to measure. So, it can skew the results and give a false positive for driving over the legal limit.

In Cyr-Langlois the investigating officer who gave evidence at the trial failed to observe the accused face-to-face before the 2 tests. The majority of the Court found that in the circumstances that was not enough to find the accused not guilty of the charge.

In an impaired driving trial the deck is already stacked against the accused in an unusual way. In s.258(1)(c) of the Criminal Code there is a presumption that a breathalyzer machine provides an accurate result as long as certain conditions are met. Once those conditions are met it is then up to the accused to show the court that the breathalyzer was wrong. This is a rare situation in criminal law where the burden of proof switches from the prosecutor to the accused person. It is called a reverse-onus.

In Cyr-Langlois the Court found that even though the investigating officer did not do the proper observations to make sure the accused did not have residual mouth alcohol, that alone was not enough to rebut the presumption that the breathalyzer machine gave an accurate result.

Essentially, what this judgment does is require an accused person to give evidence at their trial whenever an investigating officer fails to adhere to proper procedure in doing face-to-face observation before the tests. An accused person in this type of scenario already has the burden of facing a reverse-onus. Now, they will have the additional burden of giving up their right to remain silent and giving evidence at their trial, if they want to say that they had residual mouth alcohol when the breathalyzer test sample was taken. Once an accused person takes the stand to give evidence at their trial they open themselves up to cross-examination on any relevant issue. So, an accused may have vomited in their mouth before the test while not being properly observed by the investigating officer, but instead of being able to rely on the fact they weren’t observed properly to show a problem with the test, they will now have to give evidence to tell the judge about it. In doing so an accused will then have to answer a myriad of other questions that may incriminate them or assist the prosecutor in their case. Accused persons have a right not to have to do that. It is a very difficult and unfair position for the accused to be in.

In combination with the changes to the law coming into effect on December 18, 2018 these 2 cases have a great limiting effect on the ability of accused people to defend themselves from impaired driving allegations.

It will be interesting to see how the scape of impaired driving litigation changes in the near future.