Law is an ever-changing discipline. For this reason, a defence may suddenly become more difficult or even impossible to plead. In 2018, a law was amended so that a person arrested while driving can no longer benefit from a defence if the time between the request for a BAC test and the order to blow into an approved screening device (ASD) is considered reasonable.
Here are some of the changes that this new law introduces when defending a charge for impaired driving.
What is the context behind this new impaired driving legislation?
First, it should be noted that not all police vehicles have an ADA-approved screening device that would allow the detained individual to breathe and determine if impaired driving has occurred. Sometimes the police officer who arrests an individual will have to call on other colleagues to obtain one.
Previously, while waiting for the device, if the accused was denied counsel when the police had a reasonable opportunity to provide it, then it could be argued that the immediacy test imposed by the Criminal Code was not met and that the right to immediate legal assistance had been violated. The defence could then request that the evidence gathered against an individual be excluded from the trial.
For a number of years, many accused of driving under the influence of alcohol were granted this defence and acquitted by mentioning the failure to respect this fundamental right. For example, in the decisions R. v. Gaétani (2015 QCCS 4226) and R. v. Lauzier (2014 QCCQ 11937), the judges rendered decisions favourable to the defence.
The consequences of the new law on the defence of an impaired driving charge
Without putting an end to this defence, a judgment handed down by the Court of Appeal in 2018 slowed down this trend in case law that seemed to be taking hold. In R. v. Piazza (2018 QCCA 948), Judge Vauclair recalled the decision in R v. Petit (2005 QCCA 187) rendered by his colleagues in 2005. It states that a delay of fifteen minutes between the request for the test and the order to blow in the ADA can be considered reasonable and does not give the accused his right to counsel. Accordingly, Judge Vauclair stated that the 13-minute delay in Mr. Piazza’s case was reasonable.
This new law clearly hinders the ability of the defence to raise the fact that the right to counsel has not been given to the accused between the order to blow and the test itself, if that time is about fifteen minutes. It is anticipated that the accused will constantly be confronted by the prosecutor with this new judgment, which could quickly put an end to the debate, to their disadvantage.