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Criminal Code abetting police terrorism? | Daniel Dylan

Tuesday, July 13, 2021 @ 9:15 AM | By Daniel Dylan


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Daniel Dylan
Are subsections 320.14 – 320.28 of the Criminal Code police terrorism? While the answer to that question is no, or, at best, maybe, the question itself relies on rhetoric employed in written legal musings by Robert Michael Willes Chitty (1893-1970) (not the inimitable Sir Joseph Chitty) in a 1953 issue of Chitty’s Law Journal. The recent decision in R v. McColman 2021 ONCA 382, however, once again provides a fitting opportunity to test answers to such a question and to briefly discuss our impaired driving laws and how the ever-changing landscape of these laws will once again change should the case — and it more than likely, maybe even surely will — reach the Supreme Court of Canada.

Back then, R.M.W. Chitty wrote in his law journal published by Cartwright & Sons Ltd., of a “… new [Canadian] offence of driving a motor vehicle while the ability to do so is impaired by the consumption of alcohol.” He deployed such barbed headings as “Driving While Impaired and Police Terrorism” and “Repercussions of Police Terrorist Tactics” under which to place his sharp commentary, which altogether today reads somewhat hilariously for its hyperbolic indignation at attempts to stop impaired driving, especially around the December holiday season.

Such audacious passages such as these are found therein: “[t]he head of the traffic division of the [Toronto] police force announced that his traffic squad had been given instructions to stop any car at random — regardless of how properly it was being driven — and if the driver could be detected to have taken a drink he would be taken to the police station. The police command was if you drink do not drive. This was pure police terrorism. Something worthy of a gestapo or the police of any despot state where the practice is to arrest first and ask questions afterwards. Since when has it been a crime to take a drink![?]

“The offence itself — apart from its being passed as a measure of appeasement because convictions of drunk driving were hard to obtain — is sound enough in its basic intent. But in enacting it Parliament failed to consider how far the power it gives might be abused. Safeguards ought to be written into the subsection.”

Strangely enough, however, Chitty’s apparent indignation at that time does not perhaps seem so hyperbolic today, given certain amendments made to the Code in 2017. Criminal lawyers and members of the public have expressed concern at those amendments now found in ss. 320.14, 320.27 and 320.28 (collectively former s. 254), which generally speaking, permit a peace officer suspecting, upon reasonable grounds, that a person who has alcohol or a drug in their body and has within the preceding three hours, operated a conveyance (a relatively new term in the Code), to demand that the person perform a physical co-ordination test or provide a breath sample or both.

Perhaps of greater concern is the charging provision in 320.15(1) which provides that “[e]veryone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under 320.27 or 320.28.”

One wonders what Chitty might say of these amendments. Then again, he might be equally shaken to see that “[i[mpaired driving is a scourge in our society,” in the words of Justice William Hourigan, dissenting in McColman. Justice Hourigan would also write: “[d]espite concerted efforts for approximately the last 40 years to eradicate the practice, drivers continue to operate motor vehicles while impaired by alcohol or drugs. They selfishly and recklessly engage in this high-risk behaviour and leave in their wake death, injuries and destruction. Given this pressing societal concern, the Supreme Court has ruled that the random stopping of vehicles on public streets by the police is constitutionally permissible because such a minimal restriction of liberty is demonstrably justified in a free and democratic society …”

Nonetheless, upon some readings, s. 320.14 is said to make it illegal to consume alcohol in an amount in excess of the legal limit for up to two hours after operating a conveyance — once the threat of impaired driving is non-existent. Subsection 320.14(5) does provide some exceptions to the general operation of 320.14 in that context, but the provisions remain concerning to many, and probably would to Chitty, even despite the minister of justice’s “Charter Statement” promising compliance with the Charter issued around the time just before the amendments were implemented.

While I have generally written nothing new in respect of the 2017 Criminal Code amendments, McColman, decided by the Ontario Court of Appeal on June 4, 2021, once again brings into sharp relief the law’s attempts to deal with impaired driving. In McColman, the majority wrote: “[t]he question at issue in this appeal is whether the common law authorizes the police to conduct a random sobriety check on a private driveway, in circumstances not authorized by the HTA [Ontario’s Highway Traffic Act], where the person exited the highway after the officer decided to conduct the stop but before the officer initiated the stop, and there are no grounds to suspect that an offence has been or is about to be committed.”

The majority answered that question in the negative and dismissed the Crown’s appeal, based on its interpretation of what “highway” means in the HTA, and also rejected the Crown’s argument that the ancillary doctrine justified police actions in the case, a proposition with which Justice Hourigan in dissent agreed.

While the issues, arguments and reasons for decision in McColman are certainly more complex than I have simply described above, the majority found that the evidence obtained by the police was obtained in a manner that contravened s. 9 of the Charter, and pursuant to s. 24(2) of the Charter, should have been excluded. Interestingly the case did not, however, involve the accused refusing to accede to any police demands and, while standing on private property, voluntarily confessed to consuming an amount of alcohol that placed him over the legal limit.

Furthermore, the police admitted that there were no reasonable and probable grounds to suspect the accused was in fact intoxicated before turning onto his parents’ driveway which constituted a private road, nor was that he was evading arrest. Yet, the police were without jurisdiction and may have been with jurisdiction had they simply demanded 320.27 compliance.

Justice Hourigan would write: “In effect, by pulling over to private property, the respondent moved into an area of legal sanctuary. The policy implications of the majority’s decision are both evident and far-reaching.” It’s not clear if that’s actually the case. While the case is incredibly interesting on its own merits, it would have also been interesting to see some of the above discussed amendments tested here but obviously facts cannot be written into a case ex post facto.

That said, a few superior courts have engaged with them, but as far I can tell no other court of appeal has and with such attention and sophistication as the McColman court. In any event, I look forward to discussing this case with my evidence law students, and the Supreme Court of Canada’s judgment once it has (almost certainly) heard the appeal. Maybe then some of the mysteries surrounding these amendments and whether they amount to “police terrorism” will be better settled.

Daniel Dylan is an associate professor at the Bora Laskin Faculty of Law, Lakehead University, in Thunder Bay, Ont. He teaches animal law, contract law, evidence law, intellectual property law and Indigenous knowledge governance.

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