Ontario’s New Road Safety Act – Convictions Without Trials?
A new look for Toronto Police uniforms?
On April 21, 2009 the Ontario Road Safety Act (RSA) passed through final reading creating a host of changes that will come into effect in the coming months. The government’s executive summary of the act is available at http://ogov.newswire.ca/ontario/GPOE/2009/04/21/c3780.html?lmatch=&lang=_e.html for anyone who wishes to peruse it.
As one might expect, the RSA is overflowing with ‘get tough on crime’ language and continues the predictable tradition now enshrined in Canadian law to increase penalties for impaired driving offences at every opportunity. Where the RSA strikes bold new ground is in its fiendishly clever solution to the pesky problem of people who have the audacity to proclaim their innocence in the face of a criminal charge. You see, up until now, no matter how draconian the penalties for impaired driving became, an individual charged with a crime always had the annoying opportunity to contest that charge in a court of law where – gasp – they were at times acquitted of the charges.
The RSA fixes that problem by simply eliminating the out-dated foolishly liberal concept of charging someone before convicting them. Under the new provisions, individuals who register blood alcohol concentrations (BACs) under the legal limit but within the “warn” range of 0.05-0.08 will be subjected to a $150 “administrative monetary penalty” and an automatic 3-day licence suspension. Get caught again in the warn range within 5 years and you get a 7-day suspension, another monetary penalty and are ordered to attend mandatory alcohol counselling. Feeling lucky? For a 3rd “warning”, you will earn a 30 day suspension, the usual monetary penalty, another round of alcohol counselling and a mandatory 6-month ignition interlock condition tacked onto your licence. This condition requires you to hook up a mobile breath-testing device to your car (after your 30 day suspension is up) and only operate a vehicle equipped that way for the next 6 months.
If you missed the part about these penalties being imposed “upon conviction” don’t panic — there’s no reason to get your eyes checked. The RSA allows for the imposition of these conditions immediately at the roadside without resort to “technicalities” like trials or due process. Why overburden a criminal system already sagging under the weight of too many trials with more cases when you can just impose criminal consequences without all the trouble of a trial?
If you recognized the image at the top of this post as Sylvester Stallone in the 1995 sci-fi flick, Judge Dredd, then you can probably already hear in your mind his throaty cry of “I am the law!” In Dredd’s dystopian future, society has descended into a level of lawlessness that necessitated a somewhat different “get tough on crime” approach than what we in Canada might be used to. Judges, courts, prosecutors and trials are all replaced by a single entity – the Judge – who prowls the streets in a flying police car searching for evil-doers. Once our Judge has his target, an arrest is made and a summary ‘trial’ takes place with the help of his robotic assistant. Sentence is imposed immediately. There are no appeals.
If the thought of a police officer pulling you over and, with the help of his “robotic assistant” (the Alcotest GLC roadside breathalyser), and conducting a summary trial from which there is no appeal, disturbs you…well, welcome to New Ontario. Stallone’s career has been stalling of late. Maybe an application to the Toronto Police Service is just what he needs to get back in the game.
Forget about “summary trial from which there is no appeal.” This is not even a trial. It’s a machine deciding guilt or innocence!
There is a reason why the roadside screening results are not even admissible in court. Better hope the screening device is working properly when you get pulled over!
In other news, the ONCA ruled last week that by default, breathalyzer test results are admissible even when the officer did not have reasonable and probable grounds to make a breath demand.
The breath test certificate is valid even though the officer did not comply with the Criminal Code in obtaining the sample.
The only way to get the evidence excluded is for the defendant to get past the Charter s. 8 and s. 24(2) hurdles.
This might have been a better picture :)
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People need to understand that Driving is a “privalege” and not a “right”. The MTO can decide to suspend your “privalege” to drive in the province of ontario when it sees fit. Road side breath tests ARE admissable in court and the machines are recalibrated and tested regularily. Only drunk drivers should have an issue with this new law…sober, responsible drivers shouldn’t be concerned in the least!!
Gord Marsh is correct that driving is, legally speaking, a “privilege” which has emboldened courts at all levels to feel comfortable placing restrictions on that action. I think that fails to recognize the near necessity of driving in almost every business or social interaction in today’s society and the absolute necessity that driving is to a large minority of people who are required to drive for employment or by medical / geographic restrictions.
It should also be noted that the roadside test being utilized by the new RSA is NOT admissible in court as Mr. Marsh mistakenly suggested. Police are using an AlcotestGLC (or similar) for their roadsides. The “failure” of such a test is admissible solely for the purposes of supporting an officers’ grounds for making an arrest. The number yielded by the machine is NOT admissible, nor is its conclusion admissible for anything beyond justifying a lawful arrest. In order for a blood alcohol concentration (BAC) figure to be admitted in court, the test must be performed by a certified Breath Technician (a certification that most police officers do not hold) and the machine used must be the larger and more accurate Intoxilyzer 5000C.
As someone who has himself been certified in the operation of these machines, I readily admit that, generally speaking they are accurate, but there are a host of circumstances in which they can fail. To name just a short list: operator error, improper calibration, and machine malfunction. These machines are all also susceptible to ‘confusion by interferents’ such as breath strips, mouth alcohol, cough medicines, or even something as innocuous as a burp under certain circumstances.
Let me be clear, impaired driving is a grave social ill that Parliament quite rightly is targeting with serious consequences. However, justice requires due process and an opportunity to ensure that convictions for this behaviour are accurate and fair. A trial provides for such protections. The new RSA does not.
This also raises civil liability issues. A DUI conviction can be used to support a finding of negligence per se in a civil suit against an intoxicated driver. In other words, negligence is proven by the mere fact of the conviction itself.
In this case however we aren’t talking about a “conviction” because there has been no “crime”. However, a person can be found liable for damages resulting from a car accident if one was “intoxicated” yet still below the legal limit for criminal liability.
Would someone be able to come into court and use the fact that the defendant was within the “warn limit” to support a negligence per se action, when the defendant never had the opportunity to mount a defense against this non-crime?
I am someone who has just lived through this. I was stopped by a RIDE check on a country road and told I blew 0.050, the minimum. I say was told because the officer at no time bothered to show me the reading simply informed me that I was being given the suspension.
Because I was in the middle of nowhere it cost $220 to tow my vehicle to the impound where I still had to find a ride the rest of the way home. Luckily my wife was able to get me or I would have been stranded approx 30km from home.
On top of the $150 to get my license back (compared to the $10 to get a replacement license) I had to miss two days of work because I had no way to get there. I live in a rural community and driving is not a luxury but a necessity.
Now, what I am running up against is figuring out how to fight this law. I have the right to take a $20 parking ticket to court yet a law that costs me at least $600, not to mention the emotional toll, cannot be appealled? I feel like I have suddenly been transported to Nazi Germany and I can’t believe this can happen in Canada. As much as I love this country I am rapidly beginning to hate Ontario.