2021 QCCQ 11081, 2021 QCCQ 11081

Von Teichman c. R. 2021 QCCQ 11081 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal and Penal Division” No.: 550-01-111955-193 DATE: October 20, 2021 ________________________________________________________________ PRESIDING: THE HONOURABLE ANOUK DESAULNIERS J.C.Q. ________________________________________________________________ MARK JOSEPH MARIA VON TEICHMAN Accused - Applicant v. THE QUEEN Prosecutrix - Respondent and THE ATTORNEY GENERAL OF QUEBEC Impleaded Party ________________________________________________________________ Ruling on the Constitutional Challenge of s. 320.14(1)(

b) of the Criminal Code ( ss. 7 and 52 of the Canadian Charter of Rights and Freedoms ) ________________________________________________________________ [ 1 ] The Applicant, Mark Von Teichman, is charged with having had a blood-alcohol concentration (BAC) over the legal limit within two hours after ceasing to operate an automobile, contrary to s. 320.14(1) (

b) of the Criminal Code ( Cr. C .) [ 2 ] The Applicant submits that this provision is overbroad and thus violates his right to liberty and security under s. 7 of the Canadian Charter of Rights and Freedoms (the Charter ). He brings an application seeking an order from this Court declaring the offence provided at s. 320.14(1) (

b) Cr. C. to be inoperative in his regard. [ 3 ] In particular, the Applicant argues that s. 320.14(1) (

b) Cr. C. is overbroad because, in his view, it captures innocent and harmless conduct and it eliminates two potential defences, i.e. the bolus drinking and the intervening drinking defences. [ 4 ] The Respondent, on the other hand, argues that these two defences involve reckless or morally culpable behaviours associated with drinking and driving. Therefore, s. 320.14(1)(

b) Cr. C. is specifically aimed at deterring such behaviours. It is not overbroad. [ 5 ] For the following reasons, the Court finds that the Applicant’s motion is without merit and must be dismissed. ANALYSIS [ 6 ]

Section 7 of the Charter provides: “Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” [ 7 ] In the case at bar, there is no dispute that s. 320.14(1)(

b) engages the liberty interest: on

summary conviction as in the present case, it is punishable by a maximum penalty of imprisonment for a term of not more than two years less a day. [ 8 ] The Applicant challenges the constitutionality of s. 320.14(1)(

b) Cr. C . on the ground that it is unconstitutionally overbroad because its effect is to deprive some persons of liberty for reasons unrelated to its purpose. The Applicant submits that, because the impugned provision outlaws the bolus drinking defence and limits the intervening drink defence, it criminalizes persons who may be

“factually innocent”. [ 9 ] A law is overbroad when “the law goes too far and interferes with some conduct that bears no connection to its objective”. [1] The first step in an overbreadth inquiry is to determine the object or purpose of the impugned provision. The second step is to determine whether it deprives individuals of life, liberty or security of the person in cases that do not further that object. If this is the case, the provision deprives people of s. 7 rights in a manner that infringes the principles of fundamental justice. [2] [ 10 ] Let us first examine the purpose of s. 320.14(1)(

b) Cr. C . before turning to its effect. 1. THE PURPOSE OF s, 320.14(1)(

b) Cr. C. [ 11 ] In R. v.

Moriarity , the Supreme Court of Canada outlined four main considerations that should guide the Court’s task of properly determining Parliament’s purpose in a s. 7 overbreadth analysis. [ 12 ] First, a law’s purpose is distinct from the means used to achieve that purpose: A law’s means may be helpful in determining its objective, but the two must be treated separately. [3] [ 13 ] Second, a law’s purpose should be characterized at the appropriate level of generality: The statement of an “animating social value” is too general, whereas a virtual repetition of the challenged provision, divorced from its context, is too narrow. [4] [ 14 ] Third, the statement of purpose should be both precise and succinct.

The Court should focus on the purpose of the impugned provision. [5] [ 15 ] Fourth, the analysis is not concerned with the appropriateness of the legislative purpose. [6] The court must take the legislative objective “at face value” and assume that it is appropriate and lawful. The appropriateness of a legislative objective may be relevant to its constitutionality under other Charter provisions.

In the case at bar, the Applicant limits his constitutional challenge to s. 7 of the Charter . [ 16 ] To determine a provision’s purpose for a s. 7 overbreadth analysis, courts look to legislative history and evolution, statements of purpose in the legislation, as well as the text, context, and scheme of the legislation. [7] [ 17 ] Let us examine these various factors.

a) Legislative history and evolution [ 18 ] Drinking and driving [8] has made countless innocent victims in our communities for decades and has being preoccupying Parliament, law enforcement and the courts for just as long. [9] In 1969, Parliament made it a criminal offence for a person to drive a vehicle while their BAC exceeded the legal limit of 80 milligrams of alcohol in 100 millilitres of blood (the “BAC offence”).

In addition, Parliament gave the police power, under certain conditions, to order a driver to provide breath samples into an approved instrument (“breathalyzer”) for the purpose of determining whether that offence had been committed. [ 19 ] The BAC offence took place at the time of driving, as evidenced by its wording in the former s. 253(b): “Every one commits an offence who operates a motor vehicle….“. [ 20 ] Because the breathalyzer results were obtained some time after the moment of the offence, i.e. when the person was no longer driving, Parliament also provided that a person’s BAC at the time of the breathalyzer test was presumed to be the same as their BAC at the time of driving, if certain conditions were met.

In 1997, Parliament further clarified that a BAC that exceeds .08 at the time of the test was presumed to have also exceeded .08 at the time of driving. [10] These presumptions were referred to as a “presumption of identity”, since the BAC at the time of driving and the BAC at the time of testing were presumed to be identical. [ 21 ] Parliament also enacted a presumption that, subject to certain conditions, the breathalyzer results as stated in the certificate of an analyst accurately determined the person’s BAC at the time of the test.

This was called the “presumption of accuracy”. [ 22 ] An accused person could rebut these presumptions by producing “evidence to the contrary” sufficient to raise a reasonable doubt as to their BAC at the time of driving. The person’s testimony concerning their alcohol consumption, combined with expert evidence showing that this alcohol intake would not result in a BAC over the legal limit at the time of driving, may constitute “evidence to the contrary” and may raise a reasonable doubt about the results of the breathalyzer test, resulting in an acquittal.

The “evidence to the contrary” need not raise any issue with the functioning of the breathalyzer or its proper operation. This type of defence was named the “ Carter defence” after an Ontario Court of Appeal decision that confirmed its validity. [11] [ 23 ] An accused person could also challenge the presumption of identity by arguing that, because they consumed large quantities of alcohol just before driving, their BAC at the time of testing, which exceeded the legal limit, was higher than their BAC at the time of driving.

In this situation, an accused person could present “evidence to the contrary” and raise a reasonable doubt when they had consumed several drinks shortly before driving and being pulled over by the police. In this scenario, the alcohol they drank would not yet be absorbed into their system when driving, placing their BAC under the legal limit at the time of the offence. However, by the time they were taken to the police station and blew in the breathalyzer, the alcohol was absorbed into their blood, thus resulting in an illegal BAC at the time of the breathalyzer testing.

This is called the “bolus drinking defence” or the “drink and dash defence”. [12] [ 24 ] An accused person could also present “evidence to the contrary” and raise a reasonable doubt where they consumed alcohol between the moment they were intercepted by the police and the moment they submitted to the breathalyzer. In such circumstances, the alcohol the person consumed after ceasing to drive could potentially raise the breathalyzer result and bring it over the legal limit, but would not have been present in the person’s system at the time of the offence, i.e. at the time of driving.

This is called the “intervening drink defence”. This particular conduct has been described as a threat to the administration of justice where a person will consume

alcohol after driving but before the breathalyzer test as part of a strategy to interfere with the police investigation of an impaired driving offence. [ 25 ] In 2008, Bill C-2, the Tackling Violent Crime Act [13] introduced restrictions on the type of “evidence to the contrary” that could be tendered to defend against a charge of driving with a BAC over the legal limit. The new “evidence to the contrary” provision required that any evidence adduced to cast doubt on the breathalyzer results be directed at the proper functioning or operation of the instrument.

This reform put an end to the “ Carter defence”; no longer could an accused person raise a reasonable doubt based essentially on their subjective statement about their alcohol consumption prior to their driving. [14] [ 26 ] But Parliament continued to allow accused to rebut the presumption of identity by tendering evidence showing that their consumption of alcohol was consistent with a BAC lower than the legal limit at the time of driving, if this BAC was also consistent with the person’s breathalyzer results. [15] Thus, even after the significant reforms introduced by Bill C-2, it was still open to an accused to raise the bolus drinking or intervening drink defences.

b) The wording of s. 320.14(1)(

b) and s. 320.14(5) [ 27 ]

Section 320.14(1)(

b) Cr. C . came into force in December 2018 as part of Bill C-46,

An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts. [ 28 ] Bill C-46 completely changed the paradigm under which the BAC offence is to be considered.

Section 320.14(1)(

b) Cr. C. now prohibits having a BAC that equals or exceeds the legal limit within two hours after ceasing to operate an automobile. Thus, contrary to its predecessor, the current BAC offence is not committed at the time of driving but rather during a time period that spans up to two hours after the person ceases driving. This change is evidenced by the provision’s wording: 320.14(1)(

b) Everyone commits an offence who, subject to subsection 5, has, within two hours of ceasing to operate a conveyance, a BAC that is equal to or exceeds 80 mg of alcohol in 100 ml of blood; (Emphasis added) [ 29 ] This change of paradigm was highlighted by the Minister of Justice of Canada when she testified in support of Bill C-46 before the House of Commons Standing Committee on Justice and Human Rights: I would now like to discuss two more key changes proposed in the bill, in particular the proposed changes to the “over 80” offence.

Currently this offence is committed if the driver has in excess of the allowable blood alcohol concentration while driving. The proposals in Bill C-46 would change this time frame so that it would be an offence to be over the legal limit within two hours of driving. [16] [ 30 ] In this new regime, the BAC at the time of driving becomes irrelevant. Rather, the Crown must prove beyond a reasonable doubt that an accused person had an over-the-limit BAC within two hours following the operation of a motor vehicle.

In most cases, the Crown will prove the offence by adducing evidence that the accused failed a breathalyzer test within two hours of being intercepted behind the wheel. [ 31 ] This is not to say that the time of driving itself is irrelevant to the offence.

While it no longer situates the moment when the offence is committed, it remains an essential component of the new offence because it delineates the time period during which a driver’s over-the-limit BAC may be relevant and incriminating. [ 32 ] Because the person’s BAC at the time of driving is irrelevant, the new legislative regime need not, and does not, include the former presumptions of identity that created a corollary between the BAC at the time of driving and the BAC at the time of the breathalyzer results.

Rather, the new regime provides a presumption when the breathalyzer test is performed more than two hours after the person has ceased to drive.

Section 320.31(4) Cr. C. provides a legislative calculation method to determine the person’s BAC within these two hours. Again, this new presumption serves to show how the current BAC offence is not committed at the time of driving but instead within the two subsequent hours. [ 33 ] Also, because the BAC at the time of driving is irrelevant under s. 320.14(1)(

b) Cr. C ., the new regime de facto eliminates the bolus drinking defence. The new offence is committed when a person has an illegal BAC within two hours of having driven an automobile, irrespective of whether their alcohol consumption would have produced an “over-the-limit” BAC while they were behind the wheel. There is no longer any incentive to “drink and dash”. [ 34 ] In addition, because s. 320.14(1)(

b) criminalizes persons who produce an over-the-limit BAC within two hours after they ceased to drive, s. 320.14(5) Cr. C . creates an exception to exonerate persons who consumed alcohol after ceasing to drive and had no reason to expect that they would be required to submit to a breathalyzer: 320.14(5) No person commits an offence under paragraph (1)(

b) if (

a) they consumed alcohol after ceasing to operate the conveyance; (

b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and (

c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood. [ 35 ] Thus, under certain conditions, the new regime allows a defence in the case of an “innocent” intervening drink.

c) Context and scheme of s. 320.14(1)(

b) and s. 320.14(5)

[ 36 ] Since its inception in 1969, the general objective of the BAC offence, and the impaired driving regime as a whole, has been to combat impaired driving and what has been described as “the carnage” it causes. [17] The Supreme Court of Canada, among many others, has regularly decried the too-often tragic consequences of mixing alcohol and driving, including in the strongly worded opening paragraph of its majority ruling in R.v. Alex : Each year, drunk drivers cause tremendous suffering and loss of life on Canada’s roadways.

Tragically, drinking and driving offences remain one of the most common crimes in Canada — and they place a substantial burden on the criminal justice system. [18] [ 37 ] Statistics show the magnitude and extent of the alcohol-crash problem in this country, which results in numerous deaths and injuries among drivers, passengers and pedestrians. [19] [ 38 ] Parliament had these concerns and objectives in mind when it brought forward Bill C-46. This is illustrated by the Bill’s

preamble, which provides, inter alia : Whereas dangerous driving and impaired driving injure or kill thousands of people in Canada every year; Whereas dangerous driving and impaired driving are unacceptable at all times and in all circumstances; Whereas it is important to deter persons from driving while impaired by alcohol or drugs. [ 39 ] These considerations are also evident in s. 320.12 Cr. C ., titled “Recognition and declaration”, which was also enacted in Bill C- 46: 320.12 It is recognized and declared that (

a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety; (

b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians; (…) [ 40 ] As for the bolus drinking defence, one of the

preamble’s paragraphs is directly aimed at condemning the behavior associated with this type of defence: Whereas it is important to protect the public from the dangers posed by consuming large quantities of alcohol immediately before driving. [ 41 ] The Bill’s

preamble also mentions the need to deter the “non-innocent” intervening drink: Whereas it is important to deter persons from consuming alcohol or drugs after driving in circumstances where they have a reasonable expectation that they would be required to provide a sample of breath or blood. [ 42 ] When she testified in support of Bill C-46 before the House of Commons Standing Committee on Justice and Human Rights, the Minister of Justice of Canada declared that the Bill specifically aimed at eliminating the high-risk behaviour associated with the bolus drinking defence and limiting the intervening drink defence to situations where such a drink was taken “innocently”: I would now like to discuss two more key changes proposed in the bill, in particular the proposed changes to the “over 80” offence. (…) The purpose of this revised formulation is to eliminate the risky behaviour associated with bolus drinking, sometimes referred to as drinking and dashing.

This is when a driver consumes a significant amount of alcohol immediately before or even during driving in an attempt to get home before the alcohol is fully absorbed. This proposed formulation of within two hours also has the benefit of limiting what is known as the intervening drink defence. This can occur when a driver consumes alcohol after being stopped by the police but before a breath sample.

This has the result of frustrating the breath-testing process, and this is unacceptable. [20] [ 43 ] Also, a Charter Statement [21] filed by the Canadian Minister of Justice in the House of Commons during its consideration of Bill C-46 sheds further lights on the objectives of the proposed reforms: By criminalizing bolus drinking and drinking that may obstruct an investigation, the offence [at s. 320.14(1)(

b) Cr. C .] captures two categories of reckless, morally culpable conduct, the prohibition of which serves the Government’s objective of combatting impaired driving. Conclusion on the legislative purpose [ 44 ] All of the above considerations lead the Court to the following conclusions. [ 45 ] First, the animating social value behind s. 320.14(1)(

b) is public safety and the proper administration of justice. [ 46 ] Second, the legislative purposes of the impugned provision are to - deter impaired driving; - deter other reckless or morally culpable behaviours associated with drinking and driving, specifically those adopted by

o persons who drive after having consumed a substantial quantity of alcohol; o persons in this situation who try to frustrate the breath-taking process and the proper administration of justice. [ 47 ] The means Parliament has taken to achieve these purposes are the following: - the criminalization of persons who get behind the wheel after having consumed a quantity of alcohol so substantial that it brings their BAC over the legal limit within the next two hours, thus eliminating the bolus drinking defence and the intervening drink defence; - the creation of an exception, subject to certain conditions, for persons who consume alcohol after they ceased to drive where they have no reasonable expectation that they will be required to submit to a breathalyzer.

d) Does s. 320.12 Cr.

C. deprive individuals of liberty or security of the person in cases that do not further its purposes? [ 48 ] The applicant submits: “The complete elimination of the defence of bolus drinking forces a court to find persons guilty who are factually innocent.” [22] He argues that the legislation may potentially result in convicting persons who would not be posing a danger to the public by their activity because their BAC is lower than the legal limit at the time of driving. [ 49 ] In his view, having a BAC over the legal limit at the time of drinking is the only “standard by which the Courts ought to consider that a person’s blood alcohol level would endanger the public.” [23] Therefore, in the Applicant’s view, only the BAC at the time of driving should be relevant. [ 50 ] The Court respectfully disagrees. [ 51 ] The drinking and dashing behaviour associated with the bolus drinking defence has long been decried as reckless, irresponsible and posing a threat to public safety, with the strongest language coming from the Supreme Court of Canada.

In R. v. St-Onge Lamoureux , Deschamps J., writing for the majority of the Court, stated that this behaviour denotes a “significant irresponsibility with regard to public safety”. [24] In doing so, she adopted the language used in the Court’s minority ruling in R. v.

St-Pierre , which held that bolus drinking and the intervening drink defences “at the very least, involve a significant degree of irresponsibility and a cavalier disregard for the safety of others and the integrity of the judicial system.” [25] [ 52 ] In St-Pierre , the majority ruling strongly condemned the actions of persons who voluntarily consume alcohol after driving yet before submitting to a breathalyzer test, commenting that such a conduct could potentially constitute an obstruction of justice. [ 53 ] In the case at bar, Ms.

Geneviève Huppé, an expert in the fields of chemistry and forensic toxicology, explained how the effects of alcohol kick in quickly after ingestion and how, because driving is a complex activity, drivers show impairment when they reach a BAC of 50 mgs of alcohol, well below the legal limit of 80.

Estimating how a person will absorb alcohol and will be affected by it can depend on numerous factors, such as height and weight, the quantity of alcohol that was consumed, the percentage of alcohol in each drink consumed, etc. [ 54 ] That being the case, the idea of allowing drivers who have just consumed a large quantity of alcohol to gamble on their own ability to drive, on the effect the alcohol will have on them, and on the time they have before reaching the legal limit is extremely dangerous to public safety. Persons who gamble in this way are not “factually innocent”.

They are, as the Supreme Court of Canada put it, “irresponsible” and show “a cavalier disregard for the safety of others”. [ 55 ] For these reasons, the Court finds that the behaviour associated with bolus drinking is exactly the type of high-risk behaviour the impugned provision is designed to capture. It cannot be said that s. 320.14(1)(

b) Cr. C. is overbroad when it criminalizes individuals who have engaged in this type of reckless conduct. [ 56 ] In addition, the two hypotheticals offered by the Applicant fail to demonstrate how the impugned provision overreaches. [ 57 ] In Hypothetical 1, a toxicologist drinks three beers in a very short period of time, then decides to drive home. She thinks that she has enough time to do get there before she reaches the legal limit, which would be in 20 minutes according to her estimations.

Questioned on this scenario, toxicologist Geneviève Huppé testified that this hypothetical is not reasonable, as a toxicologist would not engage in such conduct because (1) she would be aware of the impugned provision and its implications; (2) she would be aware that her ability to drive is impaired well before her BAC has reached the legal limit, and (3) absent having a testing device in her pocket, it is doubtful she could determine her BAC with certainty when she left the restaurant. [ 58 ] Furthermore, as discussed above, the impugned provision is aimed directly at eliminating the high-risk behaviour presented by Hypothetical 1.

Assessing one’s alcohol level and ability to drive should not be left to the judgement of persons who have just consumed a quantity of alcohol sufficient to bring them over the legal limit. As Ms. Huppé explained, alcohol alters one’s judgement, so a person who has consumed large quantities of it should not be relied upon to self-evaluate how fit they are to drive. Hypothetical 1 does not show an overreach, as this is exactly the type of irresponsible behaviour that Parliament wishes to address. [ 59 ] The same can be said of Hypothetical 2.

The Applicant submits in his factum that it reflects the circumstances of the case, but this is not demonstrated as he did not testify. [ 60 ] Regardless, the person in Hypothetical 2 shares pitchers of beers with friends during the period between 10:00 p.m. and 1:30 a.m. Before leaving the pub, the person “chugs” a third of a pitcher of beer, then proceeds to drive his car, heading to a destination located 10 minutes away.

He is intercepted by the police and, some 45 minutes later, produces breathalyzer results of 93 and 90. [ 61 ] The Court fails to see how the impugned provision would overreach when capturing the conduct of someone who chooses to drive his car after an evening of drinking beer and who “downs” a third of a pitcher right before he takes the wheel. Regardless of whether or not his BAC had reached the legal limit at the time this person was intercepted, this is exactly the type of high-risk behaviour

that Parliament tries to address in the impugned provision. The Court fails to see how Hypothetical 2 supports the Applicant’s argument that s. 320.14(1)(

b) Cr. C. is overbroad because it captures this type of conduct. CONCLUSION [ 62 ] The legislative purposes of s. 320.14(1)(

b) Cr. C. are to: - deter impaired driving; - deter other reckless or morally culpable behaviours associated with drinking and driving, specifically those adopted by o persons who drive after having consumed a substantial quantity of alcohol; o persons in this situation who try to frustrate the breath-taking process and the proper administration of justice. [ 63 ] The impugned provision achieves the legislative purpose by, inter alia , eliminating the bolus defence and the intervening drink defences, except in situations of innocent intervening consumptions. [ 64 ] The Applicant has failed to demonstrate how s. 320.14(1)(

b) Cr. C . would deprive individuals of liberty or security of the person in cases that do not further its purposes. His constitutional challenge of this provision under s. 7 of the Charter must be dismissed. FOR THESE REASONS, THE COURT: DISMISSES the application _______________________________ ANOUK DESAULNIERS J.C.Q. Mtre Simon-Pier Cossette Counsel for the Prosecution Mtre Cedric Nahum Counsel for the Applicant Mtre Gaëlle Missire Mtre François Lamalice Counsel for the Impleaded Party Dates of hearing: April 16, 2021, May 13, 2021 and August 26, 2021