Caution - Objects May Appear Closer In The Rear View Mirror: The Optics Of Tougher Impaired Driving Laws

In October, I discussed the "let's get tough" on impaired driving legislation proposed by new Premier Alison Redford in two blogs; A Lesson On How To Get Tough With Impaired Driving and Impaired Driving: A Little Diversion. With the dual announcement this week from Alberta, where new legislation mirroring B.C.'s efforts in the area has been tabled in the Legislature, and from British Columbia, where impaired driving fatalities have decreased by 40% since the new legislation has been in force, a review is in order. I will discuss some of the legal difficulties with the legislation and some of the social difficulties of connecting the effects of the new legislation with an absolute decrease in impaired drivers.

Many of the legal criticisms focus on the lack of due process afforded individuals when they are stopped by police enforcing the new law. Sanctions may be imposed without recourse to the criminal justice system and the determination of penalty is not administered by a judicial authority but by the police. By giving the police the decision making power usually confined to judges, the procedure not only circumvents the justice system but circumvents the legal rights protections we all enjoy under the Charter, particularly the s. 11(d) right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." As discussed in a previous blog, There Is No Road To Redemption, this type of crime prevention adheres more closely to the arcane "crime-control model" of Herbert Packer.

Another area of concern involves legal issues with the breathalyzer devices themselves and the inaccuracies connected to the machines. Thus, the lack of due process is compounded by the unreliability of the basis for the out-of-court sanction.

Still other legal critics accuse the police in British Columbia of selective enforcement: police are not enforcing the impaired driving sections found in the Criminal Code, opting instead to enforce the provincial legislation only. The result of such policy not only diverts from the justice system those offenders who would not normally be before the Court, as their blood alcohol concentration or BAC is below the legal limit, but also diverts those offenders who have a BAC above the legal limit and should face a criminal charge. In those circumstances, the criminal law, as properly wielded by the Federal Government under the Constitution Act and under the Federally enacted Criminal Code, is not being enforced.

On the other hand, there are benefits to the accused by this diversion from the criminal justice system. The offender is not subject to the risk of a criminal record if convicted. A criminal record not only carries substantial societal stigma but can result in a loss of employment and difficulties travelling across borders. 

Effectively then, the new legislation "decriminalizes" impaired driving without federal government input and without public input. 

How did this happen? The persuasive, yet misleading, use of statistical evidence may provide the answer as to why this legislation has been so readily accepted by the public and by the government. Returning to the B.C. experience, that law was first introduced in April 2010 as, according to the government, tougher measures were needed to combat the increase in impaired driving cases. This reasoning was, in fact, at odds with Statistics Canada's July 2011 report, which found an overall decrease of the rate of impaired driving throughout Canada with an 8% decrease in the rate of impaired driving in B.C. from 2009 to 2010. In Alberta the 2009 to 2010 rate decrease was 14%.

Despite these seemingly contradictory statistics, the recent announcement from B.C. suggests that alcohol related fatalities have decreased by 40%. In absolute terms, the statistic is astounding and very persuasive. In reality, however, this kind of statistical "evidence" of success must be approached with caution. As Mark Twain purportedly stated "There are three ways not to tell the truth: lies, damned lies, and statistics."

Although such a blanket dismissal of statistics is not warranted, it does give one pause for thought: statistics, as numbers, do not lie, but it is the interpretation of statistics, as offering support or dismissal of a claim or cause, which can be manipulated. Certainly, in the criminal justice arena, such statistical evidence is admitted with caution, particularly in the area of DNA evidence. As stated by Justice Finlayson in the 1998 Ontario Court of Appeal case in Terceira:

At the conclusion of the evidence, the trial judge in his instruction should advise the jury in the normal way as to the limits of the expert evidence and the use to which it can be put. Additionally, in the case of DNA evidence, he or she would be well advised to instruct the jury not to be overwhelmed by the aura of scientific infallibility associated with scientific evidence. The trial judge should tell them to use their common sense in their assessment of the all of the evidence on the DNA issue and determine if it is reliable and valid as a piece of circumstantial evidence.

Ultimately, statistics cannot provide a definite or absolute connection between the new legislation and the decrease in alcohol-related fatalities. The decrease can be explained in many ways such as educational programs deterring people from drinking, increased law enforcement by police, a general declining trend as observed by Statistics Canada, or increased awareness/deterrence through those very government media announcements we have heard touting the new law and its benefits. A quick internet search reveals a long list of B.C. town news sites, big or small, and even a few MLA websites as well, reporting on the B.C. government's recent statistical news.

In the end, we need to be aware that what we see and hear may not be what we are actually getting. In this, as with so much public policy, perhaps only time will tell.