SURVEY - Impaired Driving Cases are a Growing Challenge
A survey of Canadian lawyers by the Traffic Injury Research Foundation (TIRF) reveals that challenges with Canada’s impaired driving system, although not new, now appear to be growing. "We surveyed more than 1,000 Crown and defence lawyers across the country to gain insight into the challenges they face in handling these cases," says Robyn Robertson, President and CEO of TIRF. "Responses show that there is a lot of consensus on both sides of the aisle regarding where problems exist and the impact on case outcomes."
The survey, fielded in 2006 through to 2007, revealed that those charged with criminal drinking and driving offences are more likely to plead not guilty and take their chances at trial as opposed to pleading guilty. In fact, today more than 40% of cases are going to trial.
"This finding is likely a result of two factors," says Robertson, "First, given the mandatory penalties and provincial consequences of conviction, Crown prosecutors have limited latitude on sentencing submissions and are less able, and maybe less willing, to negotiate pleas involving, for example, no jail time or reduced licence suspensions."
Second, and more importantly, defence counsel know that they have a good shot at getting an acquittal at trial by raising constitutional challenges or a defence such as “evidence to the contrary”.
Survey results showed the number of such challenges and defences is growing. An increase in cases going to trial isn’t surprising given that the likelihood of conviction at trial has decreased in the last decade – the national “odds” of being convicted at trial is slightly more than 50%, although this varies across jurisdictions.
Overall, on a national basis, an estimated 72% of drivers charged are convicted. This is lower than the 90% reported in the early 1990s. "An impaired driving conviction on your driving record results in the loss of driving privileges, increased insurance costs, and post-conviction monitoring. This, as well as the criminal record that results, can affect employment and cross-border travel," says Robertson. "With such high personal costs and the potential for an acquittal, more accused drivers are willing to take their chances in the courtroom."
The larger volume of cases going to trial is having a significant impact on the court system – leading to ever-increasing backlogs and court delays with some cases taking as long as 14 months to resolve. Finite resources combined with heavy caseloads can make it more difficult to get a conviction at trial.
Lawyers estimate that about 24% of their criminal cases involve impaired driving charges; however, the survey revealed that Crown prosecutors handle four times as many cases as the defence. Not surprisingly, this means that defence counsel are able to spend two to four times as many hours preparing these cases.
Compounding the problem, the Crown must often prosecute based on the cases or courtrooms assigned to them, and handle a wide variety of criminal charges.
Robertson notes the inevitable outcome is a defence team which is typically better able to select and prepare their cases as well as specialize in certain areas. "Given the differences in preparation time and workload between Crown and the defence, it is nonetheless encouraging to see as many impaired driving convictions as we do," says Robertson, "it truly speaks to the quality and dedication of prosecutors."
Robertson highlights that it is important to understand how policies and practices impact outcomes.
For example, charge screening helps to ensure that charges are correctly laid and there is sufficient evidence to support them; restricting the ability of prosecutors to engage in plea resolutions increases the number of cases going to trial.
So it’s important to understand how such policies can impact outcomes in order to manage resources.
More importantly, it must be recognized that the continual layering up of criminal and administrative consequences creates increasing incentives for those accused to go to trial.
"When you have finite resources and a lot of cases, you have to make strategic decisions to achieve the best outcomes," says Robertson. Having come into effect after the survey was completed - a step in the right direction has been the legislative amendment in Bill C-2 that limits evidence to the contrary defences. As it stands there is a need to strike a balance between appropriate penalties and what the system can reasonably handle to ensure these cases don’t slip through the cracks.