The Yukon has rates of impaired driving almost five times higher than the Canadian average, says Statistics Canada.
Yet in the past two years, the Yukon has made “no changes” to its impaired driving legislation, said Mothers Against Drunk Driving in a newly released progress report.
A primary deficiency is a lack of “statutory authority” — explicit legal authority on the part of police officers to “stop vehicles at random, demand documentation, establish systematic sobriety checkpoints and demand field sobriety testing,” read a 2006 memorandum released by MADD.
Of course, these activities are currently practiced by the Yukon RCMP — but they are done under the auspices of common law.
Under common law, police authority is based upon previous court decisions, rather than a set list of rules and regulations.
The Yukon, along with Nova Scotia and Newfoundland, are the only remaining Canadian jurisdictions to use common law to govern police authority as it relates to impaired driving.
MADD asserts that common law is “vague,” and leaves impaired driving convictions much more vulnerable to “successful legal challenges.”
“With all due respect, the courts do not always resolve common-law issues consistently,” wrote Robert Solomon, MADD’s legal counsel, in 2006.
For example, Ontario’s Highway Traffic Act expressly authorizes the police to demand that a driver stop his or her vehicle — and makes failing to stop a provincial offense.
By contrast, the Yukon Motor Vehicles Act provides that a driver must stop when requested to do so by the police, but it does not authorize police to demand the driver stop his or her vehicle.
“If the police are not authorized to make the demand, the driver is under no legal obligation to comply and cannot be sanctioned for failing to do so,” wrote Solomon.
A 1999 national survey found that up to 42 per cent of police officers have admitted that they “sometimes or frequently” released impaired-driving suspects with short-term suspensions, rather than proceeding with criminal charges.
MADD says officers are failing to pursue convictions because of “frustration” over the number of impaired drivers who evade criminal liability because of challenges to an officer’s authority.
“In the absence of such explicit statutory authority, the growing trend toward the de facto decriminalization of impaired driving will continue,” wrote Solomon.
“It’s definitely easier to refer to a statutory rule than to refer to the common law, where it could be all over the map,” said Melissa Atkinson, president of the Yukon branch of the Canadian Bar Association.
More important than simply imposing statutory authority, is doing it with the full backing of law enforcement and the community, said Atkinson.
“You need public input, you need community and government support — if any of those three things are missing you’re sort of ‘dead in the water,’” she said.
“(Statutory authority) just simplifies the task, it provides the police with a broader level of comfort, and it sends a clear message to drivers,” said Solomon.
Impaired driving cases present a significant chunk of Canadian legal proceedings.
“Anecdotal evidence suggests that impaired driving litigation accounts for 30 to 40 per cent of the caseload in Canada’s trial courts,” said a recent release by the Canadian Bar Association.
“Regardless of whether or not that litigation is ultimately successful, its volume alone has enormous implications in terms of cost, delay and uncertainty in the law while cases are pending,” it said.
The recently released MADD progress report also suggested that the Yukon raise its minimum driving age from 15 to 16. As well, it recommended that all drivers in their first five years of driving should be required to maintain a zero per cent blood alcohol content when behind the wheel.
In the case of a fatal or personal injury crash, “the police should also be authorized to demand a breath, blood, saliva, or urine sample,” said the report.
The 2007 Canadian average for drunk driving offenses is 241 per 100,000. In the Yukon, the rate of offenses stands at 1,120 per 100,000. Offenses in the Yukon’s southern neighbour of BC stand at only 332 per 100,000.