When Canada’s new impaired driving laws came into effect at the end of last year, they created three separate classes of people, says Kyla Lee, an attorney in the Lower Mainland who specializes in litigating charges of driving under the influence of a substance.
“I like the way there’s the intersection of law and science,” explained Lee, who’s argued impaired driving cases in courts across the Greater Vancouver area and into the Fraser Valley. “Impaired driving (charges) allow me to litigate the Charter, which is very technical and complex, (and) really advocate constitutional (and) scientific issues. It’s such an interesting field.”
But now that the laws around impairment have changed, Lee says many of her clients’ cases have been left “up in the air” because Parliament included very little information in the law for what they intended to imply respectively and prospectively to the three classes of impaired drivers created by the laws.
If a person was charged on or after Dec. 18, it’s the new laws that govern their case, explains Lee. But for those charged before Dec. 18, or who were in the middle of their trials when the laws changed, there are no rules for how to apply the laws respectively (for past charges) or prospectively (going forward).
“This creates three classes of people (because we don’t know yet how) the law applies to the (latter) two categories, and it’s causing a lot of problems,” said Lee.
“The way the law is currently written, as a number of defense counsel has pointed out, (it also has the) potential to convict somebody who didn’t actually drink and drive, which would be a terrible miscarriage of justice,” said Micheal Vonn, policy director for the BC Civil Liberties Association.
“This entire (new) section of the Criminal Code has set it up so if you’re charged with an impaired driving offense (you’re treated) guilty until you prove yourself innocent …and the deck is completely set up against you,” said Lee.
And “the interesting thing about (all of this), it was the same language that was used in 2008 as putting too much of a burden on a person in a criminal court (because it) violated the presumption of innocence.
“So to call this a huge mess is putting it lightly,” Lee added. And “we can’t really do anything (to change it). We have to wait for somebody to be charged in (an) innocent set of circumstances and have that person challenge the law.”
“In the end, it all comes down to evidence,” said RCMP spokesperson Cpl. Mike Rail. “Road safety is very, very important and it’s obviously one of our focuses … but there are no cookie-cutter cases. We follow our police instinct … and where the evidence takes us, which is quite often to the facts.
“Then we forward a fulsome report to Crown,” who will then disprove or approve charges and conduct any criminal prosecutions.
But because the law was “passed at the eleventh hour … (under) the pressure of (cannabis) legalization, (Parliament) was forced to agree with this unconstitutional law” that has no uniformity across the Canadian legal system.
The day after the laws changed, Lee says she sent out letters on behalf of her DUI clients to try and figure out how their cases would be handled going forward.
“I got different answers from different prosecutors in different courthouses (across the Lower Mainland). There’s not even consensus amongst B.C. Crown Services (on how to handle these cases) … which seems ridiculous, but that’s what Parliament has left us,” said Lee.
When trying to determine a law’s constitutionality, a government must be able to justify any violation of its citizens’ rights, explained Vonn.
“Evidence is key: there must be evidence to support the proposition that the violation of people’s rights will produce the safety outcome (expected).
“This law … does not meet the test that it will meet the evidence (or) that it will save lives,” continued BCCLA’s policy director.
“But (I’m) very confident that (this law will) get shaped through the court system: nobody doubts that many lawsuits and constitutional challenges will be brought (it) … but that’s the shaping (a law like this) will inevitably go through.”
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