Care and Control (Balance of Probability)

Care or control

  A person does not need to be actually driving or operating their vehicle to be charged with a drinking and driving offense in Canada. It is also possible to be charged and convicted if a person is found to have in his/her possession the means to start a vehicle and be in or near the seating of the vehicle required to do this.  In the legal vernacular this is expressed as being in care or control of his/her vehicle.  Should the person exhibit signs of exceeding the "warn" range or the .08 level of alcohol in the body it is assumed that in every case the person does fully intend to actually start the vehicle and set it into motion.  This is not considered to be a speculative assumption but a hard fact.  There are no exceptions.  Should the individual be merely "sleeping it off" before seeking out motel accommodation the assumption "will" (not "may") apply.  The justification for this is the legal concept (originally to be found in civil law) of "Balance of Probability." In this case the Probability is the "Actus Reus" and the "Mens Rea" where the Highway Traffic Act is concerned.  The conviction and punishments which accompany a conviction of DUI, will be as harsh and all serious repercussions will apply.

 

Under section 11(d) of the criminal code any citizen is considered innocent until proven guilty. Consideration involves 2 concepts, Mens Rea and Actus Rea: Mens rea is Latin for "guilty mind".[1] In criminal law, it is viewed as one of the necessary elements of some crimes. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act is not culpable unless the mind is guilty". Thus, in jurisdictions with due process, there must be an actus reus, or "guilty act," accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). As a general rule, criminal liability does not attach to a person who merely acted with the absence of mental fault. The exception is strict liability crimes.
In civil law, it is usually not necessary to prove a subjective mental element to establish liability for breach of contract or tort, for example. However, if a tort is intentionally committed or a contract is intentionally breached, such intent may increase the scope of liability as well as the measure of damages payable to the plaintiff.
Therefore, mens rea refers to the mental element of the offence that accompanies the actus reus
Mens rea - Wikipedia, the free encyclopedia
Now this of course is great to protect all for whom it would simply be easier to grab and charge. This protects the public from such issues as police not be arresting the guy with the hoodie hanging around the bank because they were positive that he was going to rob it. However our Charter of Rights and Freedoms has one weakness in it, Section 1.

“Section 1 is used every time a Charter infringement is argued. If a case involves three separate sections of the Charter, a section 1 analysis would occur after each section is argued. For example,if sections 7, 8 and 9 of the Charter are argued as being infringed, the government would have to argue a separate section analysis for each. In addition, the government must satisfy all of the steps in the Oakes Test.
THE OAKES TEST
The Oakes Test is a legal test created by the Supreme Court of Canada in the case R. v. Oakes (1986). R. v. Oakes provided the Court with the opportunity to interpret the wording of section 1 of the Charter and to explain how section 1 would apply to a case. The result was the Oakes Test –a test that is used every time a Charter violation is found.
However, the Supreme Court of Canada has identified specific situations where the government does not have to impair a Charter right as little as possible. The Court has found that in some situations it may be appropriate to take a deferential approach to government action. This means that the Court takes a flexible approach to the minimal impairment portion of the Oakes Test. Situations where deference may be given often occur where the legislature has to balance multiple interests. The Court has held that deference may be appropriate in situations where a legislature is better suited to weigh the evidence and policy considerations, and also, where the legislature has shown it has exercised judgment within a range of reasonableness. In other words, the Court acknowledges that the legislature, an elected body, is often in a better position to respond to the needs of Canadians. “
http://ccla.org/wordpress/wp-content...OJEN_Oakes.pdf

Now to simplify: In order to pick and choose any areas in the Charter where legislators feel have reached a level of popular support or seems to be politically correct, the Supreme court can back up the legislators to impose any exceptions to a section of the Charter. The Oakes Test despite the appearance of propriety and moral justification is simply a construct, a tool to justify legislators modifying the precepts of the Charter for any justification they may espouse. Under the Oakes Test the Supreme Court assumes such a test will exempt legislation from being held strictly to the spirit of the Charter.  Now things like hate speech would engender a public outcry so they are careful to avoid such areas. Not so for dui.
Now, in civil law, there is a concept referred to as "balance of probability" which is sometimes considered and allowed. And quite rightly as criminal and civil issues differ in a number of fundamentally different aspects. Where dui is concerned, the optics of drinking alcohol have been put into such a negative light that this process was employed to introduce this qualifier into the criminal code. What it means here for section 11(d) is that in some cases, if it looks like there might be even the slightest probability of an individual driving drunk in the future with a BAC of .08 (under certain circumstances) then that is the same as actually driving off into traffic drunk and posing a risk to other drivers. In one case a young fellow, rather than risk the lives of others decided to sleep it off in his car. He had a sleeping bag, got into it. And after putting the keys into the ignition to get some quiet music on the radio, drifted off to sleep. Police Officers examining vehicles found him this way. He was charged with dui. He was not driving but the new twist to the dui law determines that there was a probability that he was going to drive off drunk under the influence. This Care and Control law is such that being on the front seat of the automobile, over the limit and with keys in his/her possession warrants a dui charge, a subsequent conviction being replete with the penalties described above for second time offenders. Now there are members of society who support this brainless kind of thing unconditionally. This is how powerful special interest groups have become in influencing the opinions of the general public. This is issuing a criminal conviction on the basis of what someone might do – not what they have actually done. Pretty scary stuff.  

And actually this concept of balance of probability has manifested itself, if not in the criminal code, then in the spirit itself, of what may be termed Administrative Initiatives.  In Ontario, an individual may present him/herself to a hospital as a first step in leaving, what they may believe to be, the excess consumption of alcohol behind them or perhaps for a liver check due to their concern.  Now this individual was not stopped by police or in an accident of any kind.  In other words there are none and never have been any charges related to DUI.  That said, doctors are asked to report any diagnosis of alcohol dependency to the Medical branch of the Ministry of Transport.  On the balance of probability that this individual will, however, in the future, drive drunk and pose a risk in public, the drivers license  of that individual is suspended for up to one year.  Further, should an individual who does not have a drivers license, present themselves in the same fashion, a record is kept and should they ever present themselves for a license in the future (no matter how much time has elapsed or whether they have long ago completed a rehab program) they will be subject to similar sanctions before being able to apply.  The difference here is that the sanctions imposed here are arbitrarily defined as administrative not convictions under The Highway Traffic Act.  In this way there are no protections under the Charter of Rights and Freedoms.  Just few decades ago, if anyone would have told me that, we might suffer penalties under the law, not for what we have done but for what we might do in the future,  I would never have believed it.  How could we ever have arrived at this point?

 

Expanding the scope of police powers

Another example of the Criminal Code amendments:

“If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to [accompany the officer for sobriety testing and/or breath testing].

(Criminal Code, s. 254(2), as amended)

One concern here (as evidenced by the following example) is that, based on the section of the criminal code quoted above, an officer only has to suspect that a driver had operated his/her vehicle 3 hours in the past to qualify for a breath test in the present.  Indeed it is possible that after returning home the driver had consumed several drinks over the three hour period.  Further to this the driver may have consumed a considerable amount of alcohol in as short a period of time as twenty minutes.  Negative life issues can result in a motive for many people.  This does not qualify that a person was operating a vehicle while under the influence or what their BAC may have been in the last short period of time.  The section quoted above allows for an officer to remove a person from their dwelling for testing.  Witness the following scenario:

One of the latest developments is a campaign by MADD to encourage anyone to report impaired drivers. Traffic signs brandishing this exhortation are going up on light standards and elsewhere by the roadside. It has not achieved widespread practice yet but perhaps we will soon see more examples of this as increasing numbers of people click into the possibilities.

Take a case in point: It is an unfortunate fact of life that there are occasions where neighbours living side by side are in bitter conflict. One of the neighbours has friends over for a social occasion. The alcohol flows freely as evidenced by the boistrous deportment of all. The party ends, all leave before 11 o'clock. Shortly after, the neighbour notices the host going out to his car, unlocking the door and

• sitting in the front seat to rummage around in the glove compartment for some article.
• or backing the car up ten feet to be able to get the lawnmower into the garage
• or entering the drivers side of the car with keys in his possession for any reason.

Though the host is not exhibiting any outward signs of intoxication, the neighbour calls his wife over to observe then calls the police to report the host as having care and control while under the influence. The host goes back into the house and has several more drinks.  Some time after (up to three hours is allowed by law), the police arrive at the host's door, call him out and administer a roadside breathalyzer. The neighbours are interviewed and statements taken from each. The host blows over .08, is taken to the station where he is again tested then charged with dui (Care and Control). His license is removed for three months, his vehicle impounded for a week and a trial date set. The penalties upon conviction are exactly the same as if he had been driving down main street weaving wildly, and stopped by police and also if he had exited the vehicle with speech slurred and was staggering. With the amendments described above, the fact that he had no intention to drive the streets is not pertinent. Unfortunately the public is largely unaware of this possibility. Is this scenario really plausible? I personally am aware of one incident similar to this scenario. Though the person in question was not charged formally for DUI the resultant guilty plea to a lesser charge resulted in 8 months of driving restrictions and close to $10,000.00 in fines, vehicle impoundment and legal fees not to mention costs associated with the inconvenience of the initial three month suspension (exclusive of the 8 month driving restrictions) imposed by the police.  

Since precedent is such an important element in the interpretation of our laws and protections under the Charter of Rights and Freedoms, one might be concerned as to the possibility of using Balance of Probability to set precedent in other areas of the law in our judicial system.  Though this possibility may be pooh! poohed! within the legal community it would be interesting to assess the rationale behind such assurances, keeping in mind, of course that many of us haven't fallen off the proverbial "turnip truck!"

The Ignition Interlock Device

The Ignition Interlock Device

Sadly it is a misconception that the IID is used only to ensure the driver is sober enough to allow the engine of the automobile to be started. When the devices were first manufactured they actually were geared to this end. When it was discovered that upon occasion drivers who had been drinking got a friend to perform the test for them, the manufacturer built into the machine a process referred to as the Random Rolling Retest,

At random intervals while the car is being driven, the driver will be asked by the machine to provide a breath sample. Within a specified interval of time the breath sample must be provided. If it is not, the horn begins to sound off and the lights begin to flash continuously until the automobile is brought to a complete stop and the sample provided.  The results will be recorded by the machine should the driver fail to make the test.  The machine will not turn the engine off.  THIS DISTINCTION WILL NOT REALLY MATTER AS THE DISTRACTION REMAINS AS INDICATED IN THE EXPLANATION WHICH FOLLOWS.

Should you be in a situation which requires your undivided attention while driving, the manufacturer claims, that if you fail to complete the test successfully,  you will have enough time to either clear the scene or pull off the road to a stop.. The time frame for this is not given in the instructional video. Failure to provide a successful sample within a predetermined time will cause the horn to sound and the lights to flash continuously until the car is brought to a complete stop and a sample provided. A warning to pull off the road will also be provided should you fail the breath test or fail to complete the test within the time limits allowed by the machine. For example, should you drop the device onto the floor of the car and be unable to safely recover it in time, the results are inescapable.

So what repercussions may result from using this device in a rolling retest?:

The sequence of events involved not only in manipulating the device but providing the correct steps in the right sequence to provide a breath sample, employ a considerable mental and physical effort when blowing into the handheld monitor and driving in heavy traffic. Taken together, all at the same time, this will result in an unacceptable distraction possibly further resulting in an accident.

The time frame for providing a sample for the rolling retest can result in considerable driver distraction if he/she is hemmed in, in heavy traffic and attempting to exit a busy freeway. Stress levels may rise unacceptably. Improper lane changes and the like can be extremely hazardous. This has the potential to cause an accident.

If a driver fails a rolling retest (for a reason which may be totally unrelated to a sample failure) the resulting cacophony of horn blaring and lights flashing almost surely will cause increased stress levels and distraction inside the vehicle for both driver and passenger(s) and for other drivers in the vicinity. This has the potential to result in an accident.

 (This might be dated but it would seem that the study was a valid one and should hold true for today).  "Dramatic findings in a recently released study by the California Department of Motor Vehicles (DMV) show that interlock devices had no statistically significant effect in preventing subsequent drunk driving convictions, but they increase their users' general crash risk by up to 130%".
http://abionline.org/press_release/293/

 Just as a further note an additional study was done in 2004 by the California Dept. of Motor Vehicles. Please note the quote from the conclusion section of that study:

AN EVALUATION OF THE EFFECTIVENESS
OF IGNITION INTERLOCK IN CALIFORNIA
REPORT TO THE LEGISLATURE
OF THE STATE OF CALIFORNIA
IN ACCORD WITH ASSEMBLY BILL 762
CHAPTER 756, 1998 LEGISLATIVE SESSION
September 2004

"The relationship between IIDs and crashes changes when crashes are examined for offenders who installed an interlock device. Surprisingly, the two analyses that examined this both showed that the risk of crashes was higher for offenders installing an interlock."

One other point of note is that upon attempting to follow past research paths the author has noted that since posting the original website from which this blog is derived, some manufacturers seem to have either played down or removed altogether references to the consequences of either failing or missing a Random Rolling Retest. Also  I have checked extensively. Manufacturers vary slightly in vehicle reactions to failed random rolling retests but basically most are as described above. I have searched extensively for information on how the random rolling retest works in Ontario. I have not been successful. Dare we say this is a deliberate attempt to mask the truth. What do you think?

In some jurisdictions, the province of Ontario, for example, a new law has come into effect barring the use of handheld devices while driving. This law seems to be specifically geared towards the use of cell phones but is broad enough to include many other activities. It would seem to be hypocritical, that in the list of devices arbitrarily decided to be exempted by the Dept. Of Transportation that the IID be included.  

The following is from the RCMP website:
"Distracted driving: qualifies as talking on a cell phone, texting, reading (e.g. books, maps, and newspapers), using a GPS, watching videos or movies, and playing extremely loud music.
A study has found that taking your eyes off the road for two or more seconds increases your risk of being in a car accident by about double
(Ministry of Transportation)."
http://www.rcmp-grc.gc.ca/cycp-cpcj/id-cfa/index-eng.htm
  
 You can put away a cell phone in a heartbeat. You cannot ignore the IID in a Random Rolling Retest.  

In the same vein, the IID is mandated for DUI convicted drivers who wish to or have an urgent need to return to driving possibly, for example,  for maintaining one's career.  The penalties for dui are extremely harsh under the guise of re-education.  (Is this a valid judgement call? - Perhaps the only one truly qualified to put forth a valid judgement call is the founder of MADD, Candy Lightner.  With the extremes of legislation subsequently fomented under the powerful lobbying efforts of MADD she quit in disgust claiming that she had never intended the movement to go so far.  At this point in time she has disavowed any connection to this organization as it is today.)   

Personally this author does not wish to be driving in the vicinity of any driver required to take a Random Rolling Retest in heavy traffic

The Expansion of Police Powers

The Expansion of Police Powers To Include issuing Driving Suspensions and Vehicle Impoundments

The rationale for this argument against has been put forth most eloquently by Judge Sigurdson of the Supreme Court of British Columbia. Such a law grants police unreasonable powers to issue roadside suspensions and vehicle impoundments which involve fines and service charges adding up to a considerable amount.  The following comments are from the British Columbia's Civil Liberties Association April 2013:
"  However, as with all law-making, we need to be careful to strike the appropriate balance between the clear need to promote safety on the roads, and the legal requirement to respect people’s constitutional rights. The courts are currently considering the question: Should the Province’s law penalizing impaired driving come at the cost of losing our constitutional right to be presumed innocent until proven guilty? The BC Civil Liberties Association (“BCCLA”) says no.
 In the BCCLA’s view, the impact of the law has true penal consequences for drivers and effectively creates a new provincial “crime” of drinking and driving. It does so without any of the protections that apply in the criminal law and that are guaranteed by the Charter, such as the presumption of innocence. On the contrary, the ARP presumes guilt. The only evidence is the roadside screening device, which is not nearly as reliable as a breathalyzer. The evidence from a roadside test is not seen as reliable enough for a conviction under the Criminal Code. Yet, it is the only evidence used in the ARP. Moreover, there is only a limited ability under the law to challenge that evidence.

 The penalties are severe. The BCCLA has no objection to penalties for drinking and driving in general – but remember that these particular penalties are imposed without a conviction and without the normal fair procedures that accompany criminal penalties. Penalties include:

• driving prohibitions for up to 90 days for a fail or refusing to provide a breath sample roadside;
• fines of up to $500 for a 90-day prohibition;
• paying for and attending a remedial driving program;
• impoundment of the vehicle;
• towing and storage costs and a fee to have the driver’s license reinstated; and
• paying for and installing the ignition interlock program.

 The government itself estimates that the total cost of blowing a “fail” (> 0.08 blood alcohol level) is $4,060. That price tag does not include the impact this law has on people who need to use their vehicles to earn a living. The BCCLA is aware of BC residents who have lost their jobs because of the ARP law. Countless other people have suffered from the stigma associated with having to use the ignition interlock device in their vehicles. By the time people can challenge the decision, the damage is already done.
 As noted above, we are opposed to drinking and driving and we think that law enforcement plays an important role in dealing with this problem that tragically cuts off lives and causes hardship and injury to many people. However, we think law enforcement should use the tools already at their disposal to combat the problem of impaired driving. Those tools include, in appropriate circumstances, criminal prosecution. We do not think that the government should be allowed to dress up a criminal offence in regulatory clothing and deny BC residents their constitutional right to due process for what is effectively being treated as a crime.
In 2011, Mr. Justice Sigurdson of the BC Supreme Court found that the ARP was unconstitutional only for people who blow a fail on the roadside device. Justice Sigurdson said that the law violated the Charter because there was no way for drivers to properly challenge the roadside breath test. In 2012, the government changed the law by requiring police officers to tell drivers that they can ask for a second test on a different roadside machine and that they can review the test through the Office of the Superintendent of Motor Vehicles. These changes still do not address the presumption of guilt underlying the law. The case was appealed to the BC Court of Appeal for a three-day hearing in March 2013. The BC Court of Appeal has not yet made a decision."
  
Clearly this is long overdue as an initiative which requires immediate rectification. As a right, license suspensions and extended vehicle impoundments must be taken out of the hands of police and relegated to the courts where these sanctions imposed as penalties for transgressions in contravention of the criminal code should have been all along. In a free society it is anathema to grant police the powers of detention, judge and jury. This never was intended to be their role.

 The  question remains.  Is there truly protection for the individual under section 11(d) of the charter?  It is amazing what may be accomplished under section 1 of the Charter?