Acumen Law Corporation advises MPs on Bill C-46

Lawyers Sarah Leamon and Kyla Lee were invited to Ottawa to give a presentation to Parliament’s Standing Committee on Justice and Human Rights on Sept. 20, 2017.

Leamon and Lee provided a detailed and lengthy analysis of how Canada’s new impaired driving legislation, introduced through Bill C-46, will affect the rights of Canadian drivers. The new Bill, among other changes, gives police powers to pull ANY driver over and demand they provide a breath sample to check for sobriety. Currently, police are required to suspect a driver has consumed alcohol before they can demand a breath sample.

We are very thankful to the Members of Parliament present for the opportunity to share our advice.

In case you missed the presentation, check out our Justice Radio podcast, where we’ve posted a copy of our full presentation to the committee.

11:10 – Sarah Leamon opening statement
16:18 – Kyla Lee opening statement

21:46 – Question from St. Albert – Edmonton MP Michael Cooper
“Ms. Leamon, you mentioned that police already have all the tools that they need to combat impaired drivers. You note correctly, that the standard of reasonable suspicion is a low one. It’s merely a suspicion that someone has alcohol in their system, not that they’re at .08, not that they’re impaired. But on the other hand, we’ve heard from multiple witnesses including from law enforcement communities who have cited statistics that somewhere in the neighbourhood of the time, someone who is impaired, who is stopped, at a routine check stop or in the course of a traffic stop to check insurance and so on, passes through. So how would you respond to that issue. Law enforcement officers saying we need this because 50% of the time someone who is impaired is going through, and nothing further is done.”

22:47 – Leamon responds to Cooper
27:54 – Lee responds to Cooper

28:49 – Question from Willowdale MP Ali Ehsassi
“I have to say I was somewhat perplexed. I had the benefit of reading your brief. The first sentence of the brief from Acumen Law Corporation, it reads, ‘Bill C46 purports to solve a problem that does not need a solution.’ So do you think we do have a problem, or you don’t think we have a problem whatsoever?”

29:26 – Lee responds to Ehsassi

30:39 – Additional question from Ehsassi
“OK. So in summary you’re saying its unnecessary and it’s unconstitutional. Starting from the unnecessary or perhaps trying to identify whether we have a problem or not, we heard testimony from Prof. Solomon that we’re talking about approximately 1,000 deaths every year. We’re talking about 60,000 Canadians being injured. We heard heart-wrenching testimony from mothers of young victims. They have explained to us that the victims, the 60,000 victims, they’re disproportionately young Canadians. To me that seems like we do have a problem. Does that not indicate to you that we have a problem?”

31:23 – Lee responds to Ehsassi

33:13 – Additional question from Ehsassi
“And then, the next question I had is that you’re saying that police actually do have sweeping powers, that they can do essentially what they wish. But we also heard testimony that about 40% of impaired drivers get away with not being detected whatsoever. We heard this from Dr. Brubacher from a hospital in British Columbia.”

33:41 – Lee responds to Ehsassi

35:35 – Question from Victoria MP Murray Rankin
“I want to jump in where my colleague left off. I was there Monday when Prof. Hogg testified. He did a report, a legal opinion several years ago, but it was about checkpoints where everybody was treated the same. I said to him, ‘what would happen – here we have random breath tests where we can arbitrarily, at whim, choose people we want to go after.’ I said, ‘if the evidence were like the evidence in Toronto where 8.3% of the population is black yet 25% of the cards police wrote in a three year period were against blacks; or if the evidence in the context of the Ottawa’s data race collection program were as you say it was, would that change your s.1 analysis?’ I asked him. His answer was, ‘yes it might.’ He also concluded that in his judgement, to be fair, that s.8, which is the unreasonable search and seizure, didn’t need to go to s.1. He didn’t think that it’d be a problem. He thought the courts would be sympathetic. But he did say the s.9 and s.10(b) analysis would go to s.1. And if this evidence, the kind that you’ve described in Ottawa and I’ve indicated in Toronto were present, he might conclude, he suggested the courts might conclude that’d be a constitutional problem. I think I need you to put that on the table. That’s what he said in my memory. Anyway. So I want to ask you, how would you feel, what would your legal advice be, vis-a-vis, everybody gets stopped at a check point as opposed to randomized breath tests, would that be satisfactory to you, or would you treat it exactly the same way?”

38:24 – Leamon responds to Rankin
39:34 – Lee responds to Rankin

40:05 – Additional question from Rankin
“I want to talk to Ms. Leamon about your interesting suggestion from the United States that the maintenance records for the various devices be put online so everyone would have the opportunity to do that. I thought that was a very helpful suggestion because it would provide, as I understand it, greater transparency and would not presumably violate the Stinchcombe principles you were talking about. Is that correct?”

40:32 – Leamon responds to Rankin

41:43 – Additional question from Rankin
“Just a quick one. I mean, Most people think that this government is opposed to mandatory minimum sentences, but you point out there are mandatory minimum sentences in the C-46, is that correct?”

41:57 – Leamon responds to Rankin

42:54 – Question from West Nova MP Colin Fraser
“Just on the last point, though, with regard to saying that the sentences are increased substantially in this Bill, and I know Mr. Rankin’s question was on minimums, there are no introduction of new minimums in this Bill, is there? When there is a wider range of sentences, that doesn’t necessarily lead to people saying you’re going to roll the dice at trial because what’s the point of not going to trial if you’re going to be pleading guilty and having a minimum sentence? I mean you agree with that, then raising the maximum sentence just gives the court more discretion in imposing a fit and proper sentence without limiting the ability of the accused to argue on sentencing.”

43:49 – Sarah Leamon responds to Fraser

46:00 – Additional question from Fraser
“I’d like to continue with you on the issue of the bolus drinking defence and intervening drinking defence. I heard your arguments on that regarding how rare it is. I think one of the other witnesses said as well that it’s used very infrequently. And I’m wondering why that would be? Why it wouldn’t be used more routinely if the evidence suggests that the person may not been impaired at the time they were actually driving, or if there was alcohol consumed after the point that they were driving. But the other part I’m wondering is maybe just the fact that these don’t apply very often, because perhaps when the police and the Crown realize there’s a big problem when the person had consumed alcohol after and spoiled the sample or whatever, that they don’t actually end up being charged.”

47:43 – Lee responds to Fraser

48:19 – Additional question from Fraser
“Ms. Lee, if I can just stay with you for a moment. You said in I think your exchange with one of the other members that one of the ways to ensure effective reinforcement of impaired driving laws and reduce rates of impaired driving incidents was to ensure or do a better job of making the public aware that if you violate it, you will get caught. Well. I mean, isn’t that what a lot of the measures being taken in this Bill are aimed to do? And don’t you think that the measures that are in there, to ensure people will more likely be able to get caught, be deterrent for people who would otherwise be impaired drivers?”

49:02 – Lee responds to Fraser

50:36 – Question from Niagara Falls MP Rob Nicholson
“Ms. Lee, you’ve indicated that you’ve done a huge number of impaired driving cases. You said with respect to the bolus post-driving-consumption that you haven’t put together any cases, but surely you’ve had a number of clients – I’m surprised you haven’t had any clients who got into an accident, and then when the police came, they needed a drink or two, not a 26er or a 40 ouncer, that they just had one or two drinks just to calm their nerves. You haven’t heard that defence yet?”

51:08 – Lee responds to Nicholson
51:25 – Leamon responds to Nicholson

53:21 – Additional question from Fraser
“I can’t remember, sorry, whether it was Ms. Lee or Ms. Leamon who was talking about the right to counsel and talked about that if an ASD is given, you don’t have right to counsel. All of that is, I guess, in that context OK, because in order to get to that stage you need some suspicion. The question would be whether or not the lack of access to counsel before having to provide something without any suspicion would be a different approach and would be problematic. But you mentioned something about it actually being used as evidence. And my understanding of the Bill is that that information from the mandatory test or screening would not be used, would not be permitted to be used, as evidence in any further part of the proceeding. Is that accurate, and if not, have I misread that?”

54:22 – Leamon responds to Fraser


More information on Bill C-46 can be found here:

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The unedited audio is reproduced according to the guidelines of the Speakers Permission, which you can find below:

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