Uncuffing impaired driving

The Canadian Criminal Justice Association recently reviewed a new bill being initiated by the government, which would adapt the current legislation on impaired driving. The new bill introduces some badly needed changes, including increasing penalties, giving officers the power to do field sobriety tests (similar to what are used in the US), bodily fluid tests for drug-driving and also eliminating the ‘drunk’s witnesses’ defence. I think the CCJA is mistaken. I will address their points of contention:

1. First, while the CCJA supports the notion of creating an offence for operating a motor vehicle while in possession of certain controlled substances, such legislation must take into account the lawful excuse of those legally possessing such substances for whatever reasons (for example, legally prescribed Schedule IV drugs or medicinal marijuana). Bill C-32 arguably does so; however, such legislation should also remain consistent with existing practices regarding the treatment of those in possession of controlled substances. Bill C-32 does not do that. For example, Bill C-32 makes no distinction between any of the drug Schedules. Given that we already legally consider the possession of different types of controlled substances worthy of different punishments, it is inconsistent to consider all controlled substances the same, as does the proposed legislation.

It is legal to possess liquor — but not legal to drive while consuming it. Why should drugs be any different, no matter who is legally allowed to possess it.

2. Second, Bill C-32 will require that enormous resources be directed towards enforcement. While arguably noble in intention, the reality of such resources being made available consistently across the country is questionable. As the proposed legislation calls for trained officers to conduct tests as to whether a person is impaired by a drug or a combination of alcohol and a drug, said officers will need to be trained and available at all times. Certainly, officers are already trained to recognize signs of impairment (and can legally act upon said recognition to temporarily remove drivers from the road, protecting our citizens); however, this legislation will require that specifically trained ‘drug recognition experts’ (DREs) be available and called upon for their expertise¹. It also requires that a ‘qualified medical practitioner’ be available for taking blood samples. While in many urban settings such requirements may not pose an issue, in Canada’s many rural jurisdictions there will certainly be difficulty securing these DREs and qualified medical practitioners. Indeed, some areas will unquestionably go without access². Furthermore, in these regions the possibility then arises that a situation could occur where, due to a lack of a specific DRE and/or qualified medical practitioner, drivers who would now be removed from driving will actually be allowed to continue on their way.

The first part of their response is a somewhat moot point. All officers are trained in recognizing drug impairment, due to their experience and the sheer number of individuals they deal with that are drug-influenced . On the job training would be fairly easy, if we were given a few tools to work with (sobreity tests). I think the CCJA is puffing up the definition of ‘DRE’. All officers could be DREs and without much difficulty. In addition, there are ‘breath technicians’ now, why not add a drug component to their training for testing urine? Blood is only taken in the most serious of incidents, why is such an importance being put on ‘qualified medical technicians’? When blood is taken as a sample in the current context, it is usually for those who are confined to the hospital (after a serious accident). There’s nothing saying this wouldn’t (or couldn’t) be the case for drug impairment.

3. Third, Bill C-32 authorizes the taking of bodily fluids to test for the presence of alcohol or a drug. This authorization without a warrant may well fail a Canadian Charter of Rights and Freedoms challenge, given the potential for violations of privacy and personal security rights. The proposed enforcement measures must take into account probable court challenges on the basis of illegal search and seizure, arbitrary detention, protection against self-incrimination, and the right to counsel. Furthermore, legislation already exists allowing the issuing of warrants to obtain blood samples where an accused has committed an offence under section 253 of the Criminal Code of Canada and the person has been involved in an accident causing bodily harm or death (see CCC256).

Urinating in a cup is much less invasive than the taking of blood from a needle. Forcing someone to blow into a device (as currently done) is probably more invasive than waiting for the person to perform a bodily function and then collecting it. I think this legislation takes that into account.

4. Fourth, testing bodily fluids for the presence drugs is problematic at best. Current BAC measurement equipment is considered to be reliable and consistent. The same cannot be said for devices meant to test for the multitude of potential drugs that might cause impairment. Indeed, devices testing for some substances may not detect others. Those same devices may, however, detect substances commonly found in legitimate medications, indicating legal impairment where there is none. We currently have a set BAC standard at which operation of a motor vehicle is considered illegal (0.08). Again, no such standards exist for the mass of potentially impairing drugs. It is likely that people react differently to similar drug use and may or may not actually be impaired with the same ‘level’ of substance in their systems. For example, individuals on regular drug regimes may not be qualitatively impaired even with a blood substance level that is equal to or greater than another person who is considered to be impaired.

As has been noted, there is no scientific consensus on threshold drug concentration levels in the body that cause impairment, affecting one’s ability to drive. Again, unlike breathalyzer tests used for alcohol, there are no objective tests to measure drug-impairment. Additionally, some drugs can be detected in the body long after their effect has worn off. For example, in the case of marijuana, THC can linger in the body for up to four weeks after consumption and have no clear relationship to impairment and the ability to drive (Ashbridge, July 2006). Given that there is no scientifically proven impairment threshold, and that Bill C-32 does not propose a ‘legal limit’ for drug-impairment (as in the 0.08 limit for alcohol use), the question arises as to at what point law enforcement officials can press charges or consider an individual legally ‘drug-impaired’.

The danger of the proposed legislation here lies in the inconsistency of test results, the lack of existing technology to reliably measure and indicate legal impairment, and the nebulous concept of a legal blood limit for the various substances that might cause impairment. Given the potential ease of the defence against such vague testing³, successful court challenges against such test results will likely be many, negating much of the reasoning for implementing such measures.

Olympic atheletes are tested for drugs in their system, through urine samples. How can this technology not be available to the government for use? Although the CCJA has a point with unestablished ‘legal limits’, we must remember that with the majority of these cases, we are dealing with illegal drugs. Simple consumption of these drugs could be made to be an infraction. Also, I could see developing a legal limit for drugs to be problematic in itself, as many drugs have different effects. However, by making it illegal to have ANY illegal drug in your system while driving would be sufficient to protect the public. We must remember that in some European countries — ANY amount of alcohol in your system while driving is illegal.

5. Fifth, by clarifying the evidence an accused can introduce to raise doubt that they were impaired as indicated by BAC results, Bill C-32 takes a potentially dangerous step towards blindly trusting mechanical devices to determine guilt or innocence. While the so-called ‘two beer defence’⁴ might be unpopular, the ability to raise reasonable doubt is essential to ensuring fairness. In addition, restricting such evidence may pose issues relating to guaranteed presumptions of innocence.

While currently a defendant can call on witnesses to testify that he or she had drunk only small amounts of alcohol, or that he or she was drinking at a rate at which the alcohol consumed would have been absorbed and eliminated by the accused’s body, Bill C-32 will limit the use of such “evidence to the contrary” to evidence tending to show that the breathalyzer was malfunctioning or was operated improperly, and that the concentration of alcohol in the accused’s blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time when the offence was alleged to have been committed⁵.

While some argue that C-32 will remove a legal loophole, others note that limiting available evidence to the contrary actually eliminates a legitimate safety valve and reduces judicial discretion⁶. Indeed, by limiting the ability to raise a reasonable doubt through evidence to the contrary to circumstances where there is evidence of machine malfunction or operator error, Bill C-32 weakens the presumption of innocence. The accused will otherwise not be allowed to testify to their consumption in order to defeat the presumptions in s. 258. While we recognize the high degree of accuracy and reliability of breathalyzer machines being utilized by police, we note that no machine or operator is perfect. There remains the probability that circumstances will arise where the machine malfunctions or the operator is in error but the defense is unable to lead evidence on either of these points. In those cases, innocent accused may be convicted due to the limitations that Bill C-32 places on the presumption of innocence and the right to full answer and defense. By limiting the available defenses and strengthening the presumptions created to facilitate prosecution, Bill C-32 increases the likelihood of convicting innocent people. The Canadian Criminal Justice System, like any other, is a human one. We should not allow convictions to be based on a machine, without permitting the accused to respond, no matter the machine’s reliability and accuracy.

Yes, the bill limits defences. I think that’s the point. Much like limiting the amount of scrutiny on a rape victim by a defence lawyer, we should also limit the amount of biased information that a ‘witness’ can provide for an impaired driver. Does it not seem ironic that we are counting on the accuracy of an intoxicated friend, colleague or party-goer over that of a non-biased scientific equipment test? I again challenge the CCJA to sit in court and listen to the testimony of friends at a party and their evidence provided. Frankly, it makes a mockery of the justice system to allow such testimony any weight in determining the accused’s level of intoxication. How often were you at a party and counted the amount of drinks that a fellow drinker beside you had? Did you also watch what they ate, took measurements on their weight and tolerance level? Or perhaps followed them home to see how much they drank along the way home while driving? If the issue was whether he or she drank or not, that would be fine. But a general partygoer, with no knowledge of what is going to happen in the future (an impaired driving charge) cannot honestly provide accurate evidence. Unfortunately, this ‘defence’ is a tactic well-honed and squeezed into admissibility in court. It is because of this ‘defence’ that impaired driving legislation has relatively no teeth in Canada. I’m not sure whether who’s to blame though, the courts for believing it and accepting it — or the defence lawyers who initiate this audacity.

6. Finally, Bill C-32 proposes to increase penalties for impaired drivers. Current legislation is adequate in this regard. Impaired drivers who cause bodily harm are already subject to considerable imprisonment. Those who cause death are liable to imprisonment for life, and S. 253(a) of the CCC already includes reference to impairment by alcohol or drugs. As such, it is unclear how Bill C-32 would improve on the current legislation.

Impaired drivers aren’t receiving adequate sentences, despite law being available for them. That, inherently is the problem. Sometimes, if one were to look at a person’s historical criminal record, more often than not, you see a steady decline in actual sentencing of prison time and monetary fines — for conditional sentences, probation and time served. I would challenge the CCJA to find any instance where a person was sentenced to life for impaired causing death.  For non-death incidents, I believe the most severe sentence was handed out recently, as only six years — even after multiple past convictions of impaired driving.

No more Sgt. Pepper

CBC news offered an in-depth investigation into a ‘hot’ topic in the news, the police use of pepper spray. The article describes a few of the infamous uses of pepper spray by police — and cites a recent example of an arrest on a BC reserve where citizens tried to intervene and many were sprayed as a result. The article asks if pepper spray is an appropriate tool for use by police. My answer, “Yes, as long as its USE is appropriate.” As with many department policies, pepper spray is used at minimum to quell an active resister (not assaultive, but resisting arrest). As with any police tool, it must be used justifiably in order to be seen as acceptable in the public’s eye. Its use is therefore dependent on the officer’s decision-making during each incident. To say it is not an appropriate tool would remove an option for all officers to use to de-escalate an arrest or incident. The bigger the tool-box, the more options you have for fixing a problem.

I’m not one to arm-chair quarterback someone’s decision in the field, especially when such an incident would have occurred in a matter of seconds, requiring quick decision making. However, I feel that a few points should be made to address the most recent incident in BC. These were not mentioned in the media article and may change your opinion on the matter.

1. Making an arrest in a crowd is dangerous for any officer. Crowds can turn easily, as described in my last post. To have a large number of people confronting you during an arrest, depending on their involvement — could make it a grave situation for the police officer, especially if it is 20 to 1 or 2. Using pepper spray as a control tactic is lower on the scale as a response in that situation.

2. Why were citizens, some of them carrying babies and children and confronting officers at the same time? Why would they subject their children to the confrontation and possible violence of challenging the police? Challenging an arrest at the moment of the arrest can only result in additional trouble. If only people understood that eventually all this goes to court at some point, where differences can be voiced. At the scene is no place for a lengthy debate.

3. Pepper spray is unfortunately subject to the elements and delivery. Wind can easily draw pepper spray into the air and cross-contaminate the officer spraying, as well as any bystanders. Even if it is only intended to be used on a particular subject, the wind may cause it to effect others once it is airborne. Using it in a building is a sure way to make all in the building to suffer from symptoms. As well, the delivery system (spray can) is not the most accurate device especially with bystanders nearby.

In any situation, it’s important to question all sides on their actions — but, because the media article relies largely on the ‘witness accounts’, I believed the perspective of the officer making the arrest should also be considered for a more balanced report.

Policing crowds

Recently, I had the experience of policing in the midst of a large event with tens of thousands in attendance each day. Those visiting were visiting various mini-events in an area of about 5 city blocks. Although not alone in doing so, this type of work is a considerable challenge for any one officer. What is it like policing this type environment? Let me describe:

You arrive at the event. Almost immediately after exiting your transportation, you’re exposed to people. You begin the evening, walking through the crowds toward your office. Everyone notices you as you’re in uniform. Some avoid eye contact, others stop and approach you with questions on the event or a request for a photo. After arriving at your office, you receive your instructions for the evening and head out on foot patrol. The crowds increase, walking is somewhat challenging because of the congestion. As you’re walking, you focus on remaining aware and alert while in the crowd, because things can (and do) occur in front of you very quickly or change rapidly. You are aware of anyone approaching your comfort zone(1 or two feet around you), and your head swivels frequently to keep an eye on all directions. As you walk on patrol, you scan the environment, looking for violations and making split second assessments and decisions on what you see. You process the information, a scuffle — no, just teens fooling around; someone holding a bottle close to them — no, its just a glass pop bottle; a confrontation between male and female — you watch, it seems to be only verbal; you move on… The assessments continue. You also process your own safety, keeping a close hand on your equipment so that a passerby not be tempted. The occasional chat with your partner continues, although without a true attention due to your awareness on the crowd passing by. You find a few colleagues and chat for a short time until a bottle is thrown, missing you and breaks at your feet. All become aware and vigilant, searching — but the offender has since escaped. The surrounding crowd requires calming and reassurance for a short time before normal milling returns. You then realize that a group of four officers is probably a very good target.

As the evening progresses, the radio chirps in your ear-piece, a disturbance call is nearby. You quickly walk through the crowds, putting on your gloves, ready for contact. As you approach the area, you see a large group circling an area of the pavement. You begin to run, your thinking races as you assess what’s in front of you. You can’t see the middle, but know that a fight is on-going. As you approach the deep circle of bystanders, you remove your baton for your safety and attempt to push your way through the mass of people. You realize that people are so intent on watching the fight, they don’t notice you until you push them. Arriving in the center, you see two people fighting and attempt to break them up, while jostling with them and arresting both. Yourself and your partner now are two, in the midst of two hundred. This is where you are the most alert, eyes scanning every half a second watching for others trying to interfere or ‘jump’ you while the arrests are made and you handcuff the offenders. One person breaks from the crowd, confronts you for arresting someone. You push them away, threatening another arrest. A second approaches, but is wary of approaching, especially when your baton is held out toward them, ordering them to back up. A third person heckles the arrestees and is dealt with by you with a few short quick words to quiet them. Finally, three and four backup officers arrive, breaking up the audience as the combatants are taken away. You then escort the arrestees, again through the crowds — finally, your breath relaxes, a you have a slight sigh of relief to yourself, while remembering a close call you had while in the crowd. Once the arrestees are dealt with, you return to foot patrol and the assessments continue, with radio dispatches reporting more incidents to attend. You attend five disturbances, some minor, some larger — attend to 3 calls of lost children (and parents), remove numerous disorderly and intoxicated people, counsel and deal with several recreational drug users, confront known gang members and their groups, investigate thefts and the occasional roll-job robbery. All this in a nights beat patrol.

When experiencing this for 12 hours a day, for 7 days — I began to enjoy the return to normalcy at home and again tried to avoid anyone for a few days just to set my mind at ease. Of course, the whole experience is a chance at learning another aspect of law enforcement — but you can’t help but think at how it could have gone awry at any point while in the crowd. I’m sure there’s a lot written about crowd dynamics and psychology — it might deserve a little read.

Someone was listening…

After reading the recent news in the Canadian policing world, I was surprised and to see that a new civilian commissioner was chosen to head up the RCMP. Despite that some serving police officers are strongly opposed to the change, I believe the government has made a progressive and creative move to address some of the problems inherent in the police organization. As I mentioned in my previous post, choosing a civilian to lead a police force is the right step, as the role is very political — and needs someone who is experienced professionally in the political field as well as public security. I will watch with interest on how this new appointment will improve the RCMP for the better — it is certainly a bold and innovative step in the right direction.