Bill C-452 (Historical)
An Act to amend the Criminal Code (proceedings under section 258)
This bill was last introduced in the 37th Parliament, 3rd Session, which ended in May 2004.
This bill was previously introduced in the 37th Parliament, 2nd Session.
Leon Benoit Canadian Alliance
Introduced as a private member’s bill. (These don’t often become law.)
Introduction and First Reading
(This bill did not become law.)
April 22nd, 2013 / 3:30 p.m.
The Chair Mike Wallace
Ladies and gentlemen, I'll call this meeting to order.
This is the 69th meeting of the Standing Committee on Justice and Human Rights, on Monday, April 22. Our orders of the day are to deal with Bill C-444, An Act to amend the Criminal Code (personating peace officer or public officer).
All of you have the report from the subcommittee on agenda and procedure. I will accept a motion on it, but before doing that, I should inform you that although we had set aside two meetings for Bill C-444, we have only one set of witnesses provided, so we thought we could do it all today. That will leave Wednesday open. I will say that we will not be meeting this Wednesday. I'm sure you'll find that two hours helpful to do other things for your constituency.
We will start next Monday on Bill C-452. We have enough witnesses that it will actually be Monday, Wednesday, and an hour of witnesses on the following Monday, and then clause-by-clause consideration for that hour. Those are the three meetings for that private member's bill, Bill C-452. It's a slight difference because there's been different information since we had the meeting, but that's it.
I'll take a motion to approve the sixth report.
Private Members' Business
May 12th, 2004 / 6:05 p.m.
The Deputy Speaker
The House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-452 under private members' business.
(The House divided on the motion, which was negatived on the following division:)
Private Members' Business
May 11th, 2004 / 5:50 p.m.
Leon Benoit Lakeland, AB
Mr. Speaker, I am pleased to make my closing comments on the legislation.
My private member's bill is about saving lives. The bill was designed and drafted by Mothers Against Drunk Driving. Louise Knox, the president of this organization, lives in my constituency. We have talked many times about the devastation caused by drunk driving. Her son was killed by a drunk driver. She knows the loss a family can feel as a result of this completely unnecessary death.
The bill tries, in a very reasonable way, to eliminate two of the most commonly used technical defences for those who are guilty of drunk driving but get off on technicalities. They hire a good lawyer, go to court, get a soft judge and get off on technicalities. The purpose of this legislation is to protect against that to save lives.
I cannot imagine why anyone in the House would not support the legislation. In fact the parliamentary secretary, in the last hour of debate, gave his reasons why the government, or members of the Liberal Party, might not support the legislation, and they were absurd. I am will read them so members can see just how ridiculous this argument is. Normally, I would not use that type of strong language, but I think it is being factual. He said:
Bill C-452 would impose a new and highly unusual requirement upon an accused person. In order to challenge the result of a breath or blood test, an accused would have to prove one of four things: first, the analysis was faulty; second, the equipment was faulty; third, the procedure was faulty; or, fourth, the accused drank alcohol after driving but before the testing.
The parliamentary secretary was arguing that requiring the accused to prove one of these things was unreasonable. He even went so far as to say that it somehow went against charter protection.
However, let us just examine whether that is the case. What I am talking about are the two most commonly used defences to get drunk drivers off the hook. My colleagues have presented the information effectively on these two defences, but I am going to present them once more and then quickly show how absurd the parliamentary secretary's arguments are.
The courts until now really have interpreted the Criminal Code in a manner that results in the evidentiary breath or blood test results being thrown out solely based upon the accused's unsubstantiated and self-serving testimony.
People go to court, accused of drunk driving, and say one of two things. In the case of the Carter defence, they say that they only consumed a small amount of alcohol. Even though the tests showed they were clearly drunk, based on the evidence they presented, that they had only consumed a small amount, they could not be guilty because their blood alcohol concentration simply could not have been that high.
In the other case, that of the last drink defence, they say that when they were tested their blood alcohol level was above the legal limit, that they were driving drunk according to the test, but what they did was guzzle back a bunch of booze just before the police stopped them. Therefore, while they were drunk according to the test, they were not drunk while driving. Believe it or not, some courts, with the right judge and the right lawyer, allow these defences to stand.
The parliamentary secretary says that it is unreasonable for the accused to require evidence that the test was wrong. The legislation says that if the tests are done appropriately, then that individual should be found guilty. The parliamentary secretary argues that it is an unreasonable thing to require. But is it? When the roadside test is consistent with the tests done a couple of hours later and is consistent with what the police officer saw, should that not be enough to convict the drunk driver, unless the accused can prove that the machine was faulty or that the proper procedure was not followed or specifically that something else was done wrong?
I would argue, for the sake of saving lives, the bill should be passed so the strong evidence that the machines provide will stand up in court and these technicalities will no longer get drunk drivers off the hook and lead to these needless deaths across the country every year.
Private Members' Business
May 11th, 2004 / 5:40 p.m.
James Moore Port Moody—Coquitlam—Port Coquitlam, BC
Mr. Speaker, if I misrepresented the direct statement from the member for London West, I apologize. That was not my intention.
When it is tougher to convict people for drunk driving than it is to convict them of murder, as the former attorney general for Manitoba has told this place, that is a serious problem. That is a red flag that we should all notice about the system. When we find out that there are people who have been convicted of 19 drunk driving offences and they are still behind the wheel, our heads start to spin.
It is a question of odds. How many times do people have to drive drunk before they are caught? How many times are drunk drivers charged before they are convicted? If only 11% of impaired drivers taken to B.C. hospitals were convicted and drivers who have been convicted 16 times are still behind the wheel, that just shows how strong the odds are in a drunk driver's favour.
The government tells us that roughly 71% of drunk drivers were convicted, but if it told us that only 71% of murderers were convicted, the country would enact tougher laws. A 71% conviction rate against people who were charged with drunk driving is not good enough, especially when the biggest single reason why they were not convicted was not that they were innocent, but that they managed to exclude the evidence that proved that they were in fact drunk.
Research has shown that the vast majority of drunk driving trips, 87% of them, are taken by just 5% of drivers. Drunk drivers get behind the wheel of a car 12.5 million times every year in Canada. Only about 70,000 charges of drunk driving are laid per year in these car trips. Of these, 71%, or roughly 49,700 are convicted. That is 49,700 convictions for 12.5 million offences. That is a true conviction rate of roughly 0.4%. Like I said, the odds are very much in a drunk driver's favour.
Bill C-452 is an attempt to swing the balance back. When drunk drivers are pulled over, they are given a blood roadside breathalyzer test and if they have a blood alcohol concentration, BAC, of over 80 milligrams of alcohol per 100 millilitres of blood, or .08, they are charged.
Then at trial the accused typically relies on one of two defences: the Carter defence or the last drink defence. The Carter defence relies on experts to rebut the evidence produced by the breathalyzer. The last drink defence claims that the accused was at a party, quickly chugged three or four drinks and then got into the car to get home before getting over .08 alcohol absorbed in the blood rate.
Bill C-452 aims at dealing with both offences. On the Carter defence, subclause 1(4) of C-452 introduces a new paragraph to the Criminal Code that would require any accused wishing to rebut the breathalyzer evidence to show on a balance of probabilities that: first, the analyses were improperly made; second, the procedures were not followed; third, the equipment malfunctioned; or fourth, the accused consumed alcohol after the alleged offence but before taking the samples.
The legal director for Mothers Against Drunk Driving Canada, Professor Robert Solomon of the law faculty of University of Western Ontario, supports Bill C-452. He writes that requiring the accused to establish on balance of probabilities that the breathalyzer result is inaccurate is no different to requiring him to prove claims that he was not in the driver's seat, as per the existing paragraph 258 (1)(a) of the Criminal Code.
On the last drink defence, subclause 1(2) replaces subparagraph 258(1)(c)(ii) of the Criminal Code with new text increasing the time allowed for the taking of breath or blood samples from an accused to three hours from the current two hours. It would extend the window from which we can catch people for breaking the law. Here, Professor Solomon notes that this change is entirely consistent with the three hour period in which a police officer may demand a sample under subsection 245(3) and describes as inexplicable Parliament's failure to make corresponding changes to that section, as this bill does.
When this bill was first debated on March 24, some Liberal MPs pointed to its shortcomings and proposed to vote against sending it to committee. It is precisely this Liberal focus on the shortcomings of legislation proposed by other parties that is paralleled in law where 29% of persons charged of drunk driving are acquitted, not because of their innocence, but because of artful reliance on technicalities. That is just not good enough.
Bill C-452 is a serious attempt to deal with a serious problem. Drinking and driving is an issue that is a concern for all Canadians. I encourage all members of the House to vote in favour of sending Bill C-452 to committee for examination to strengthen our law, protect families, protect kids, and get in their face and tell drunk drivers that what they are doing will not be tolerated in this new and better Canada.
Private Members' Business
May 11th, 2004 / 5:35 p.m.
James Moore Port Moody—Coquitlam—Port Coquitlam, BC
I am sorry, Mr. Speaker. I do appreciate the rules and I did not want to allege that any New Democrats were not here but that the NDP are not going to put up any speakers in reference to the point that was made earlier.
I rise in support of this bill. I want to laud my colleague from Lakeland and certainly my colleague from Blackstrap who just spoke to the bill. Bill C-452 deserves the support of all members of the House because I am saddened to report that according to statistics, drunk driving is the number one criminal cause of death in Canada.
I am saddened in part because the Charter of Rights and Freedoms was made law in 1982 and yet one of its most commonly cited sections, subsection 24(2), deals with the exclusion of evidence at, among others, drunk driving trials.
Approximately 40% of all traffic fatalities involve alcohol. Every day 4 Canadians die and another 200 are injured because someone had too much to drink and acted irresponsibly. Canadians know that drinking and driving is illegal; however, they also know that there are a surprising number of ways to get out of a drunk driving charge.
The last time this bill was discussed in Parliament, on March 24, 2004, the member for Provencher spoke of the tremendous difficulty in successfully prosecuting someone for drunk driving. I think that Canadians should know more about the member for Provencher because it is important to understand his background and the leverage with which he speaks to the issue.
Before ever setting foot in the House, the member for Provencher was a criminal prosecutor, the director of constitutional law for the Province of Manitoba, and later Manitoba's attorney general and minister of justice. When he talks about the Criminal Code, we should all listen.
When he spoke on Bill C-452 on March 24, he said that as a prosecutor he would rather have prosecuted a murderer than a drunk driver. He told us how frustrating it was to deal with the technical defences on how to avoid convictions under the Criminal Code. Quite frankly, he said it was easier to prosecute a murderer than it was to prosecute a drunk driver.
How difficult is it? In opposing Bill C-452, the Parliamentary Secretary to the Minister of Justice, the Liberal responsible for this bill, told the House that “It is better that 99 people who committed the offence go free than one innocent person be convicted”.
If that is the Liberal vision of justice, we are nearly there. A recent B.C. study showed that only 11% of impaired drivers taken to hospital were ever convicted. Think about this. In what kind of circumstances is a drunk driver taken to hospital? There are only three that come to mind. One, he hit another vehicle; two, another vehicle hit him; or three, he hit an obstacle like a tree or a wall.
In situations one and three, one would think that if the drunk driver was drunk enough to hit another vehicle or an obstacle like a wall or a tree--drunk enough in order that he would have to go to hospital because of the injuries--that he would likely be drunk enough to be found guilty of drunk driving.
The fact that only 11% of these people are convicted of drunk driving tells us that there is something seriously wrong with our system. Clearly, we need to do something about it and I wish that the government would stop sending mixed signals to my generation.
Young Canadians are very aware of the “Friends Don't Let Friends Drive Drunk” campaign. Those of us who are under 30 do not typically have a drink with lunch on a workday. The idea of a designated driver is common practice. We are opposed to drinking and driving, and we want to keep drunks off our roads.
When we hear the government has tabled legislation to deal with drug impaired driving, we are encouraged. We are happy to hear that Alberta has asked its prosecutors to seek dangerous offender status and long term offender designations for habitual drunk drivers. At the same time when we see the government's members of Parliament here in this place fighting against Bill C-452, and when we hear that convicting a drunk driver is tougher than putting a murderer behind bars, we become concerned.
Then we read that Daniel Bert Desjarlais of Edmonton has been convicted 19 times of drunk driving including one offence that killed his uncle or we hear of Robert James Dornbusch, recently stopped by police staggeringly drunk, nearly three times over the legal limit, who is to be convicted for the 17th time of impaired driving, partly because his own lawyer described him as incorrigible.
Private Members' Business
May 11th, 2004 / 5:35 p.m.
James Moore Port Moody—Coquitlam—Port Coquitlam, BC
Mr. Speaker, I notice an irony here. The NDP were chiding the official opposition, the Conservative Party, for not having speakers on a supply day motion that is non-votable, just a rhetorical gabfest in here right before an election campaign. Here we have Bill C-452 that will actually save lives if it is put in place and there is no New Democrat here to speak about it.
Private Members' Business
May 11th, 2004 / 5:30 p.m.
Lynne Yelich Blackstrap, SK
Mr. Speaker, I am very pleased today to speak to Bill C-452, an act to amend the Criminal Code (proceedings under section 258).
The bill presents an important opportunity to strengthen the laws surrounding the investigation and prosecution of impaired driving and related offences. Too often individuals who choose to drive while drunk or otherwise impaired face no consequences. Even when they are caught, they can take advantage of technical loopholes to avoid justice.
My colleague's bill would eliminate some of these loopholes by giving the courts the ability to use blood or breath sample results as proof of the accused's blood alcohol content at the time of the alleged offences. The span of time during which a sample could be taken would also be increased to three hours from the current two.
These are positive changes that would correct earlier parliamentary oversights and make drunk drivers less likely to get away with their crimes. This is particularly important, because without intervention, impaired driving tends to be an oft-repeated crime with tremendous potential for tragic results. For example, impaired driving is the number one criminal cause of death in Canada. Approximately 1,350 people die each year in alcohol related motor vehicle crashes. That is a death rate two to three times higher than the national murder rate. Another 200 people are injured each day in impaired driving related incidents.
Over the last 20 years, alcohol has been a contributing factor in 30% to 50% of fatal crashes. The social and human costs are staggering. From an economic perspective, Transport Canada estimates the annual cost associated with health care, damaged property and lost wages resulting from crashes involving alcohol in Canada exceeds $5 billion.
The need to implement legislative changes that could reduce the number of impaired drivers on our roads is particularly important to the people in my home province of Saskatchewan, which has a higher rate of drunken driving than any other province in Canada.
Given the figures hon. members have just heard, it is clear that we have a responsibility to do what we can to ensure that authorities have the resources and legislative backing needed to successfully identify, charge and prosecute impaired drivers.
The member for Lakeland's bill addresses some important steps in achieving the goal. As I mentioned earlier, Bill C-452 would extend the time allowed for the taking of breath or blood samples from an accused in the investigation of an alleged offence from two to three hours. This would allow authorities more time to collect samples and could reduce the number of cases thrown out because the Crown chooses not to expend the resources necessary to have a toxicological expert verify results of samples not taken within the two hour timeframe.
The bill would also allow a court to use the results of the analysis of the sample, in the absence of evidence to the contrary, as proof that the concentration of alcohol in the accused's blood at the time of the alleged offence was not less than the concentration shown in the results. In cases where the accused challenged those results, he or she would face the eventual burden of establishing, on a balance of probabilities, factors that affect their reliability.
Finally, the bill would require a court to consider other evidence in deciding whether the accused had discharged the burden of proof. The courts have interpreted the Criminal Code in such a manner that breath or blood tests are often thrown out based solely on the accused's own testimony. Without the test results, the charges are usually dropped or the accused is acquitted.
Two of the main defences used by the accused are the Carter defence and the last drink defence. Hon. members may have heard these described in the House before, but they bear repeating.
The Carter defence is that the accused testifies that he or she had only a small amount to drink prior to the offence. The defence would call a toxicologist to confirm that the accused's blood alcohol content would definitely have been below the legal limit if such a small amount were consumed. If the court accepted the accused's evidence, the test results would be completely disregarded, even if they were administered properly, were consistent with the reading on the roadside screening device and were supported by the officer's evidence that the accused showed signs of intoxication.
The second is the last drink defence. The accused testifies that he or she consumed a large amount of alcohol immediately after driving. The contention is that this alcohol would not yet have been absorbed into the bloodstream when stopped by the police.
The accused argues that his or her blood alcohol content was below the legal limit when driving, and only rose above the limit in the interval between being stopped and being tested. Again, the breath results are rejected and the accused is acquitted.
What is the result? Despite an estimated 12.5 million impaired driving trips every year in Canada, the majority of offenders are not stopped by police and, even when they are stopped, officers do not press charges. Police officers do not believe their work will result in convictions because the laws are not strong enough.
A recent letter from MADD, Mothers Against Drunk Driving, to the Parliamentary Secretary to the Minister of Justice suggested that this group, who sadly know too well the potential consequences of impaired driving, supports the changes put forward by the member for Lakeland.
MADD National Executive Director Andrew Murie wrote: “It is now almost 20 years that the Carter defence has made a mockery of the Criminal Code's elaborate provisions designed to curtail the grave social problem posed by drinking drivers. Parliament's failure to respond meaningfully condones the undermining of the statutory provisions. Surely it stands as an indictment of the present government that amendments shown by experience to be necessary have been shirked to the extent that a private member must take it upon himself to fill the gap”.
This is an important bill that could save lives. By improving the odds that an impaired driver will face consequences for his or her actions, I believe we can reduce the number of drivers willing to take that chance. With impaired driving affecting so many Canadians each day, I encourage all members in the House to support this bill.
Private Members' Business
March 24th, 2004 / 6:55 p.m.
John Maloney Erie—Lincoln, ON
Mr. Speaker, I am sure all members agreed that despite significant progress in the past two decades, impaired driving is still a complex criminal justice, health and traffic safety issue in the country. I want to believe that we all see impaired driving as a serious problem that requires the combined efforts of governments, police agencies, organizations, families and individuals.
Impaired drivers produce hundreds of deaths, thousands of injuries and millions of dollars in economic damage each year. This is all the more tragic precisely because impaired driving is so avoidable. I am told that impaired drivers and their passengers make up about three-quarters of the deaths that are attributed to impaired driving. Of the impaired drivers who die in motor vehicle crashes on public roadways, some 70% die in single vehicle crashes.
A survey by the Traffic Injury Research Foundation, which was conducted in 2003, indicated that some 3% of drivers do 86% of the impaired driving trips. Another 5% of drivers do the remaining 14% of impaired driving trips. That represents more than a million drivers who, combined, do millions of impaired driving trips every year. The overwhelming majority of the impaired driving trips in motor vehicles on public roadways are taken by persons who repeatedly do this behaviour. These are startling statistics.
What we are debating with Bill C-452 is not whether we are against drinking and driving. Nor are we debating whether it is a good idea to better process impaired driving incidents. In this House I take it as a given that we are all opposed to impaired driving and support improved processing of impaired driving incidents. That is most definitely my position. Rather what we are debating tonight is whether some very specific proposals should be placed within the criminal law.
While we all can agree on the problem, we do not always agree on the specific measures proposed to eliminate impaired driving. The Criminal Code makes it an offence to drive while impaired by alcohol or a drug. It is a separate and distinct offence to drive with a blood alcohol concentration that exceeds 80 milligrams per cent. It is the latter offence that often is a subject of a criminal trial because there is no need to prove signs of impairment, as the status of driving with the offending concentration is the offence.
The summary to Bill C-452 tells us that the bill would extend from two to three hours the time allowed for the taking of a breath or blood sample from an accused in the investigation of an alleged offence. This leaves the impression that the police currently have only two hours to obtain a breath or blood sample, which is not the case.
Currently, a peace officer may demand a breath sample or, in certain cases a blood sample, from a person the officer reasonably believes committed the offence in the previous three hours. Where the driver is unconscious, the police have four hours to obtain a blood sample under a warrant, if they reasonably believe that the driver was committing an impaired driving offence and was involved in a collision resulting in injury or death.
The Criminal Code creates a presumption that, absent of any evidence to the contrary, the blood alcohol concentration at the time of breath testing equals the concentration at the time of the alleged offence. The prosecution obtains the presumption if the first breath sample was taken within two hours of the alleged offence. Without the presumption, the prosecution would have to call an expert to relate the blood alcohol concentration at the time of testing back to what it would have been at the time of the alleged offence. Bill C-452 would change the prerequisite for the presumption in respect of a breath sample from two hours to three hours, which matches the time the police have to make the breath sample demand.
The Criminal Code also creates the presumption that, absent of any evidence to the contrary, the blood alcohol concentration at the time of blood testing equals the concentration at the time of the alleged offence. The prosecution obtains the presumption if the first breath sample was taken within two hours of the alleged offence. Quite surprisingly, Bill C-452 would not increase the prerequisite for the presumption in respect of the blood sample from two hours to three hours, as it proposes to do for a breath sample.
Alcohol has a stable rate of absorption and elimination. After one hour and certainly after two hours from the time of consumption, alcohol will have been absorbed, and at that point in time the blood alcohol concentration level will be on a downward slope because the body by then has absorbed the alcohol and is eliminating alcohol.
Before the first hour, the proposed presumption that the blood alcohol concentration is not less than the blood alcohol concentration at the time of the alleged offence might be scientifically inaccurate, if the alcohol is still being absorbed into the blood. This could also be said of the existing wording in the presumption that the concentration at the time of testing is equal to the concentration at the time of the alleged offence. Not a lot turns on the different wording proposed by Bill C-452 because the Criminal Code already makes it clear that any evidence to rebut the presumption must tend to show that the concentration was not simply different at the time of driving, but that it was lower than the legal limit. The important feature of the presumption aspect of Bill C-452 is the proposal to change the prerequisite for the presumption in respect of breath samples from two hours to three hours.
In practical terms, the vast majority of impaired driving investigations by police will see the police obtaining the breath or blood sample within the two hour period that is the prerequisite for obtaining the presumption. In a trial the blood alcohol concentration would be entered without the need for an expert to relate the concentration at the time of testing back to what it would have been at the time of driving. Extending to three hours the prerequisite for obtaining the presumption in order to match the period in which the police may demand a breath sample would mean that the prosecution would not have to call the expert in some cases where it now must call an expert. However, as already mentioned, Bill C-452 only addresses the breath sample presumption and not the blood sample presumption.
I compliment the hon. member for his concerns on the state of impaired driving in the country, and I share those concerns. MADD also shares those concerns. However, for the reasons stated, I feel that the bill has some very serious shortcomings, some very serious reservations and some very serious implications.
Private Members' Business
March 24th, 2004 / 6:20 p.m.
Sue Barnes Parliamentary Secretary to the Minister of Justice and Attorney General of Canada
Mr. Speaker, impaired driving charges represent 11% of all Criminal Code charges according to Statistics Canada. Overall the conviction rate for impaired driving charges is 71%. This is the highest conviction rate among all Criminal Code offences. Nevertheless the impaired driving conviction rate has fallen by about 10% over the past 10 to 15 years.
Anecdotally, prosecutors indicate that impaired driving trials take up 30% to 40% of the trial time in provincial judges' courts. Again anecdotally, some observers believe that fewer accused impaired drivers are pleading guilty to their charges because the consequences of a conviction have increased over time.
One example of the increased consequence for convicted impaired drivers is the 1999 amendment by which Parliament increased the Criminal Code's prohibition from driving anywhere in Canada that applies to a convicted impaired driver.
The minimum driving prohibition on a first offence moved from three months to one year. On a second offence it moved from six months to two years. On a subsequent offence it moved from one year to three years. In addition, an offender will face increased costs for facility insurance. There will also be provincial consequences that can include a provincial driving licence suspension, assessment and treatment for alcohol or drug abuse, and installation of an ignition interlock device once a provincial driving licence is reinstated.
Bill C-452 aims to improve the processing of impaired driving trials. This is a very laudable goal and I commend the member for bringing this forward. However I cannot agree with the specifics of the proposed solution in Bill C-452.
The bill goes against the very base and premise of our criminal justice system. The bill would make three notable changes. First, it would require a court to give reasons if “on all the evidence” it “gives preference to the evidence given by the accused”. Second, it would require the accused to provide that the analysis equipment or procedure was faulty if the accused challenged the result of a breath or blood test. Third, Bill C-452 would extend the time period for taking a breath sample as it relates to the prosecution obtaining an evidentiary presumption so that the time period for the presumption would equal the time period that a peace officer has to demand a breath sample.
I will focus my remarks upon the suggestion that reasons must be given if the court gives preference to the evidence of the accused. In a criminal trial it is not the job of a court to pick which side's evidence it prefers overall. The test for a criminal trial is constitutionally entrenched. It is, did the prosecution prove beyond a reasonable doubt all the elements of the offence? This is called burden of proof and it remains with the prosecution at all times and an accused only needs to raise a reasonable doubt in order to be acquitted.
For cases involving a charge of driving with a blood alcohol concentration that is over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood, Bill C-452 would appear to obscure, if not totally revise, the criminal test. Even if the test for criminal cases were not constitutionally entrenched, it would defy logic for Parliament to create a lesser test for the crime of driving with a blood alcohol concentration that is over the legal limit while having a higher test for every other Criminal Code offence.
Society reserves the criminal law for its strongest disapproval of unwanted behaviour. The criminal sanction carries a high stigma and consequences. The prosecution is therefore required to prove its case beyond a reasonable doubt. This implies that there will be some individuals who have actually done the prohibited behaviour but who cannot be convicted because the evidence and proof of the offence simply do not meet the beyond a reasonable doubt standard.
A court may be left with a high degree of suspicion that the accused did the prohibited behaviour, but unless there is proof beyond a reasonable doubt, there can be no conviction. It has been said that the rationale behind the criminal standard is that it is better that 99 people who committed the offence go free than the one innocent person be convicted.
Practically, if Parliament wanted to eliminate the application of the criminal standard of proof, it could eliminate the criminal offence of driving while over the legal limit and leave to the provinces, under highway traffic legislation, the ticketing and fining of persons who are over the legal limit.
My own view is that driving over the legal limit is very appropriately a criminal offence and should stay in the Criminal Code. It should, and it does, attract Criminal Code penalties.
The flip side of this is that the prosecution will have to meet the criminal test, which is proving guilt beyond a reasonable doubt, in order to secure the conviction.
In my view, we have come a long way in Canada from the days when impaired driving was seen as not a real crime. I am happy to see that many people have now altered their behaviour so that they plan to have a designated driver if they drink alcohol away from home. Some people stay over, or they take a cab home, or they limit their drinking, which is not a bad idea.
I would not want to see us going back to the days when some people would think that having one more drink for the road was somehow funny or clever.
I would hope that all members share my view that eliminating the legal limit criminal offence and relying on provinces to create a driving infraction with some lesser standard of proof would not be the way to go.
We need to keep the legal limit offence in the Criminal Code. We need to keep criminal law penalties for driving while over the legal limit. We also need to keep the proof beyond a reasonable doubt standard for all criminal trials.
Impaired driving is a problem that has no magic solution. Education is certainly part of it.
I firmly believe that to the extent that criminal legislation can be sensibly used as one of the measures to combat the problem of impaired driving, it should be used.
However, as I have previously indicated, Bill C-452 has serious flaws. It is not well-conceived as a measure against impaired driving. My view is that it should not be supported by members in this House.
Having said that, I acknowledge this is a serious area in Canada. More people should be very conscious of what happens, and what can happen criminally in a courtroom, when they drink and drive, and not only what happens to their personal safety and the impact on their employment and on their own families.
Private Members' Business
March 24th, 2004 / 6:05 p.m.
Leon Benoit Lakeland, AB
moved that Bill C-452, an act to amend the Criminal Code (proceedings under section 258), be read the second time and referred to a committee.
Mr. Speaker,it is an honour for me to rise today to speak on my private member's bill, Bill C-452. I look forward to discussing the contents of my bill in the House today and as it moves through the House in the future. I think this bill is a true example of a non-partisan bill and I believe that it will be supported. I am looking forward to that.
Today I would like to explain to the House why I have decided to put this particular bill forward. I intend to outline the contents of my bill, both in specific and general terms, and then provide members with some information which will help them in their decision to support this proposed legislation.
First, my intent with regard to Bill C-452 is simple. I want to keep drunk drivers off our roads. I want to help stop the death and destruction caused by impaired driving. And I want to make sure that when people do make the decision to drive while drunk, they no longer will be protected by the current loopholes in the Criminal Code. I want to briefly outline how Bill C-452 will prevent impaired drivers from getting off on technicalities.
This bill would give the courts the ability to use sample test results as proof of the accused's blood alcohol content at the time of the alleged offences. If the accused were to dispute those results, this bill would then place the evidential burden on the accused to establish factors that affect the reliability of those results based on the balance of probabilities. Bill C-452 will increase the time allowed for the taking of breath or blood samples from an accused to three hours from the current two, and I will explain why that is necessary.
The legislation states that it is illegal to operate a motor vehicle with a blood alcohol content of more than .08. We all know that. That is currently in the Criminal Code. In order to ensure that this law is enforced effectively, Parliament enacted two statutory presumptions. The first, the presumption of accuracy, is that the breath or blood tests accurately reflect the driver's BAC at the time of testing, that is, the blood alcohol concentration. The second, the presumption of identity, is that the driver's blood alcohol level at the time of testing is evidence of his or her BAC at the time of driving, provided the samples were taken within two hours of the alleged offence.
While Parliament extended the time limit for police to demand breath samples from suspects to three hours in 1999, we failed to make a corresponding change to the presumption of identity. This means that the Crown has to call a toxicological expert to testify in each case that samples are taken more than two hours after the alleged offence. This is time consuming and expensive, and often, sadly, prosecutors will simply choose to drop the charges rather than spend the time and money that would be required to make this case in court.
The timeframe for the presumption of identity, as it is called, should be extended to three hours. My bill would do that.
Once again, I want to be clear about the intention of my bill. The issue of drunk driving and the pain and destruction it causes has been a concern for me for some time. I want to make Canada's roads safer for all of us, for our families and for our loved ones. Last year, and this is what really prompted me to bring this bill forth, I met with representatives from Mothers Against Drunk Driving, or MADD Canada. They reminded me that drunk driving is still the number one criminal cause of death in Canada. I want to emphasize that fact. Drunk driving is still the number one criminal cause of death in Canada.
On average, we lose four Canadians every day and another 200 are injured due to drunk driving. Those numbers represent hundreds of families who are left to deal with the grief and trauma of having their loved ones killed or hurt by drunk drivers. As legislators, we owe it to those Canadians to help reduce this devastation if at all possible, and MADD Canada told me that it is possible. It has outlined several areas where our laws are lacking.
When I met with its national president, Louise Knox, she told me that one major problem stemmed from the fact that the courts have interpreted the Criminal Code in such a manner that breath or blood tests are often thrown out, based solely on the accused's own testimony, which contradicts the science-based test results. Without the test results being accepted as accurate, the charges are usually dropped and the accused is acquitted. What kind of a system is this when the accused's testimony overrides the scientifically based test procedures? It is simply crazy.
I want to tell the House about the two main defences being used by those accused of drunk driving to avoid being punished. They are defences that are successfully used in many cases. These loopholes are the exact ones that my private member's bill, if passed, will close.
The first is called the “Carter” defence, whereby the accused testifies that he or she had only a small amount to drink prior to the offence. The defence calls a toxicologist to confirm that the accused's blood content would definitely have been below the .08 level if such a small amount were consumed.
If the court accepts the accused's evidence, the test results are completely disregarded even if they were administered properly, even if they were consistent with the reading on the roadside screening device, and even if they are supported by the officer's evidence that the accused showed signs of intoxication. It is incredible.
I want to put this defence into perspective so that what I am saying is crystal clear. Let us say that someone gets picked up due to erratic driving or after they have had an accident. The police suspect impaired driving and do an initial roadside test. It tests positive for BAC above the legal limit. The individual is then taken down to the local police station for the next test. The result is again positive. The police have done their job, right?
Now the individual arrives in court. The accused's defence is that he or she drank so little that the test simply must have been wrong. It is only the word of the accused that he or she drank so little that the tests have to be wrong. The way the Criminal Code is currently written, it allows judges to throw out the test results, which are scientifically based and which have proven to be very accurate in hundreds and hundreds of tests. If a person gets the right lawyer and the right judge, he or she is let off the hook for a very serious crime that has often led to death. More accurately for the public, if they get the wrong lawyer and the wrong judge, they are often let off the hook due to technicalities alone.
My bill would close that loophole. Those accused of impaired driving would have to prove on the balance of probabilities that the tests were wrong.
The second defence that is commonly used is the “last drink” defence. In this case, those who are accused testify that they consumed a large amount of alcohol immediately before driving but they say the alcohol could not possibly have been absorbed into the bloodstream when they were stopped by the police.
These accused argue that their blood alcohol content was below the legal limit when they were driving and only rose above the limit in that interval between the time they were caught driving and when the testing was done. Again, the breath results are rejected and the accused are acquitted, strictly on their word that they had taken a large amount to drink just before driving so therefore their alcohol content simply could not have been high enough at the time of driving.
These technicalities are simply not acceptable. They are not an acceptable way for people to get off the hook when they are in fact guilty of drunk driving. What I propose to do is help prevent some of the four deaths that occur every day and the 200 injuries that occur every day from people getting off the hook due to technicalities. If it did happen that someone drank too much booze and then drove but was not technically over the limit when driving, is it unreasonable to change the law to send a clear message, “Too bad, simply do not drink that amount and drive”?
People simply should not drink an amount which could bring their alcohol content level above that which would make them impaired when they drove. Or better yet, people simply should not drink and drive.
What has been the result of these two loopholes being allowed to remain? Despite an estimated 12.5 million impaired driving trips every year in Canada, the majority of offenders are not even stopped by police. We can understand why. The police cannot be everywhere; we understand that. However, even when people are stopped, officers often do not press charges. Police do not believe that their work and effort will result in convictions because the laws are simply not strong enough and most important, because those loopholes are there.
In other countries these things simply are not allowed to happen. For example, the impaired driving legislation in the United Kingdom takes into account in all cases the assumption that the accused's blood alcohol content at the time of driving was not less than that indicated in the blood test. The only exception arises when the accused proves that he or she consumed alcohol after driving, but before providing the breath and blood sample proves that, and also proves that as a result of this consumption his or her blood alcohol content would not have exceeded the limit at the time of driving. In the United Kingdom they have to prove those two things.
Obviously this places a much heavier onus on the accused who wishes to challenge the blood alcohol content results from scientifically based testing.
It is similar in the United States. The onus is placed on the offender to prove his evidence. I believe that Canada is the only western democratic country which allows these types of technicalities to interfere with convictions in this type of a situation. It is no longer acceptable and my bill would change that.
When I tabled the bill in the last session before Parliament prorogued, the then parliamentary secretary to the minister of justice said that he would like to do everything possible to deal with those who would drive impaired upon our roads. He criticized portions of my bill, specifically the provision allowing a court to consider evidence of the accused's driving and demeanour. The parliamentary secretary pointed out that such evidence is irrelevant to an over 80 charge. He is correct.
However, he did not understand the thrust of my proposed amendment. While not relevant to the proof of the offence itself, these factors are very relevant to the accused's contention that there is evidence to the contrary casting doubt on the BAC reading. He missed the point entirely. I do not think he was really listening to what I said.
For example, it would clearly enhance the accused's claim that the BAC results are in error if, with even a moderately high BAC, he or she did not show any of the usual indicators of alcohol consumption, odour, slurred speech or any sign of impaired driving.
Since only credible evidence is capable of constituting evidence to the contrary, the court should consider all available evidence in assessing whether the accused's claim is credible.
The parliamentary secretary went on to speculate that there may be some resulting challenges under the charter should the bill pass, a common argument that we hear from the other side. This legislation was drafted by lawyers, refined by lawyers, reviewed by a former attorney general, and analyzed yet again by lawyers after I presented it in the House last year. They have not raised this concern about a charter challenge, so it is bogus.
I encourage all members of the House to examine this bill carefully. I encourage them to support not only my bill, but to support Mothers Against Drunk Driving in their cause to cut down on the four deaths and 200 injuries that occur every single day across this country. They can do that by supporting this bill and eliminating those two loopholes which allow people who are guilty of drunk driving to avoid being successfully charged.