No one, except philosophers, enjoys philosophy. Nonetheless, when at Osgoode Hall, I enrolled in Philosophical Foundations of Criminal Law. I wrote a piece on how our alcohol related driving offenses are problematically ascribed to the criminal law. The following is a portion of said piece.
It is a basic principle that the criminal law should be suitably definite so that people will not have to guess its prohibitions at their own peril. This is one of the central tenants of the rule of law, the compliance of which is necessary to enable the law to perform useful social functions which are crucial for securing whatever purposes the law is intended to achieve.
The rule of law has two aspects: a substantive component and a formal requirement. Formalist definitions of the rule of law are not concerned about the substantive aspects of law itself, but in defining specific procedural attributes the law must have in order to be legitimate. Part of the formal requirement of the rule of law is that laws should be of such character and quality that people will be able to guide their behaviour by it. If it is to guide people, it must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty. Simply put, the law must be capable of being known, understood, and followed.
For the same reason, the meaning of the law must be clear. A vague or ambiguous law is susceptible to confusion or uncertainty for citizens who fall under its control. And if the dominant purpose of an unsuitably ambiguous law is to prevent a certain type of harm, the resulting confusion may partially or completely undermine the goals the law seeks to achieve. The harm which the law was intended to prevent is therefore allowed to occur and the law fails its predominant purpose.
In this regard, the offences of impaired driving and over 80mgs are inherently problematic. They both are constructed in such fashion as to be in direct divergence with the formal requirements of the rule of law by lacking clarity, certainty, and notice. They demand ‘guesswork’ on the part of those citizens who are obliged to follow their prescriptions. Perhaps this is more indicative of why the current statutory ban on alcohol-related driving offenses is not sufficiently addressing the preventative function of the criminal law and the harm that the laws are intended to counter remain relatively unchecked.
s. 253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug (emphasis added)
The law against impaired driving is the ultimate example of a vague law. The word ‘impaired’ lacks precise definition. It is a term of subjective quality assessment which is open to interpretive confusion, as are terms such as “nice” or “good.” So what, then, is required to meet the subjective threshold of impairment? More importantly, what degree of impairment is required to attract criminality? It could be argued that even the slightest amount of alcohol leads to impairment, although this would hardly conform to the public understanding of what is required to characterize ‘drunk’ driving. If impairment requires substantial intoxication, at what point does intoxication cross into the plain of that which is sufficient enough to be considered mala in se as to hold the driver liable to the criminal law? Whichever it is, no guidance has been offered by the legislature respecting the degree of impairment required to hold the public criminally liable.
Consequently, interpretation of this threshold is left to the judiciary. Writing on impairment for the Supreme Court of Canada, Lamer CJ stated
Before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.
Unfortunately, this pronouncement, especially the last sentence, does not add any real clarity. What becomes clear is that the ambiguous direction provided by both the legislature and the judiciary creates a situation in which the average citizen cannot possibly know when he is transgressing into territory that warrants intervention by the criminal machinery of the state. Perhaps the extremely intoxicated driver should suspect that he is ‘impaired’ and might properly be held liable. However, the borderline driver cannot possibly know if, in the opinion of an agent of the state, he will be deemed to be in violation of a subjective provision of the Criminal Code. Any subsequent criminal liability is tenuously assigned in the face of a law that lacks the clarity necessary to be knowable and hence to guide behaviour.
To illustrate the point further, imagine a law that prohibits driving while wearing a shirt that is “too green.” This is an offense dependent on a subjective quality assessment of those assigned to enforce and adjudicate it. The law doesn’t prohibit driving while wearing a green shirt, per se. Hence, some drivers will wear green shirts while others will not. For those that do, how can they determine when their shirt is green enough to warrant proceedings against them? They simply cannot. The law is too subjective and not clearly or properly defined so as to adequately inform the driver what colour of shirt he should not be wearing. And where the law is unable to guide the driver’s behaviour, the formal component of the rule of law is violated by being too vague.
The very subjectivity of the statutory language not only poses a problem for the drinking driver, but also requires a necessarily interpretive response by those designated to its enforcement: the police. In most cases, when investigating crime, the police are confronted with facts that are res ipsa loquitur. Most types of crime occur in circumstances that are readily identifiable when perceived: the man caught driving a stolen car or the woman seen assaulting her neighbour. These criminal acts are manifestly evident by way of behaviour that can be immediately recognized. They require neither interpretation nor opinion; the acts speak for themselves.
However, with impaired driving, enforcement of the law is inevitably dependent on the subjective interpretation of state agents. What this necessarily means is that the law cannot be applied equally to all citizens who befall it. For example, Constable X might conduct a traffic stop and have a conversation with the driver. He might detect that the driver has been drinking and decide not to take enforcement action because, in his opinion, the driver is not ‘impaired’ by alcohol sufficiently to be charged. Minutes later, Constable Y stops the same driver and, after talking with him, forms the opinion that the driver’s ability to operate his vehicle is impaired by alcohol and initiates criminal proceedings. What this means is that the subjective variation in opinion of the police officers became the difference between imposing or not imposing criminal sanction.
It might be argued that this is purely a matter of acceptable police discretion. However, most appropriate police discretion arises when, after confronted with an offense, the police make a discretionary decision to either formalize a charge or otherwise resolve a situation. With impaired driving, the police themselves subjectively determine if the offense itself has been committed. This determination is always going to depend on numerous external factors beyond the control of the driver and completely irrelevant to the ‘crime’ itself. Officers who are moralists, drunk-haters, arrest happy or overtime seekers are more likely to engage criminal proceedings than those who are lazy, hold the opinion that impaired driving is not serious, or have lack of faith in the utility of arrest. Vague laws that give officials the power to subject individuals to arbitrary exercises of discretion are suspect - they threaten to supplant the rule of pre-established and general laws with the rule of the official. This is problematic because ambiguity gives the police enormous leeway and broad discretion to arrest anyone who they subjectively consider impaired in a selective, capricious or what is worse, an unethical fashion.
What is clear is that the offense of impaired driving is an ambiguously defined law which is not clearly prescribed to both those who are subjected to it and those designated to enforce it. Both the ambiguity of the law and the probability that it will be enforced in an arbitrary and inconsistent manner, amount to egregious violations of the formality component of the rule of law. And when the rule of law is undermined, any liability that is imposed by it should be staunchly questioned, if not entirely negated.
253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
Conversely, there is nothing subjectively unclear about the offense of over 80mgs. It is a crime based on a crossing a distinct threshold defined by a scientific measurement. All the same, it is worth asking whether such a provision gives a driver a fair chance to determine whether his drinking exceeds the permissible limit. Without such an opportunity, this type of statute may conflict with the norm of due process and the formalist requirement of the rule of law which contemplates laws being drafted in a manner that gives conscientious citizens the practical possibility to be both guided by and able to conform to it.
A driver attempting to determine whether he is conforming to this law is faced with an intrinsically complex, if not impossible, task. Conformity is dependent on numerous factors: body size, gender, age, body metabolism, drinking patterns and absorption rates. These factors all affect the ultimate measure of conformity – blood alcohol concentration. Currently, the average driver who consumes alcohol has no method of determining what his blood alcohol concentration actually is. It is a measurement based on a scientific analysis which is beyond the sophistication of the average citizen. What is more, the measurement can only be properly quantified with the use of a mechanical instrument to which the driver has no access.
Ironically, the only drivers who have the opportunity to know when their blood alcohol concentration is over 80mgs are those who have already been convicted of the offense. Post conviction, those found guilty of over 80mgs in Ontario are required to install, at their expense, ignition interlock device which will not allow the driver’s vehicle to be operated if the result of the analysis of breath-alcohol concentration is greater than the appropriate amount. Surely if all vehicles came with this device, this jurisprudential problem of lack of notice would disappear. However, they are not, and as it stands only agents of the state are equipped with devices necessary to determine the onset of criminality.
Once again consider our law prohibiting driving while wearing a green shirt. But imagine that the law is formulated to prohibit shirts that have over 100 units of ‘greenness.’ Wearing the colour green is, yet again, legal to a certain point. Hence, some will wear green shirts while others will not. For those that do, once again it is impossible to know at what point the shirt has become quantifiably green enough to attract criminal liability. Only when the police approach a driver and scan the shirt with a scientific instrument can the driver know, after being charged, that he has committed a crime.
The ultimate question, then, is how is a driver expected to know that his blood alcohol content measurement has risen to the criminally prohibited level? The extremely intoxicated driver may have some inkling that he is beyond the threshold and may be properly subject to criminal liability. However, the borderline driver cannot possibly know, for he has no opportunity to discover whether or not he is committing a crime. Again, this renders the over 80mgs offense in violation of the formal components of the rule of law. The driver cannot possibly know when his drinking has reached the level of prohibition and therefore any criminal liability assessed to a person who is faced with being unable to determine if he is acting in criminal fashion is perilously and improperly assigned.
The offense of over 80mgs also presents another interesting dilemma. As discussed, drinking and driving laws are currently held within the criminal sphere because they target the risk of harm. What is risky is the dangerousness caused by the driver’s alcohol hindered ability to operate a motor vehicle. However, the offense of over 80mgs effectively ascribes an intoxicated state where none might be present – a person’s blood alcohol content might be elevated without any significant impairment of physical skills or psychological awareness. Personal experience tells me that a driver may well exhibit no signs of physical impairment and subsequently register a blood alcohol content of 250mgs - over three times the legal limit. Chronic alcoholics, for example, can reach a state of functional tolerance, exhibiting few obvious signs of intoxication even at high blood alcohol concentrations. Their ability to operate a vehicle may not be affected significantly enough as to cause a risk of harm, yet we have statutorily recognized the criminal liability of their behaviour. Although this situation is surely not the norm, it does illustrate an interesting paradox of assigning criminal culpability where it may not be warranted.