Evidence of meeting #4 for Justice and Human Rights in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was criminal.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Greg Yost  Counsel, Criminal Law Policy Section, Department of Justice
  • Hal Pruden  Counsel, Criminal Law Policy Section, Department of Justice
  • Phil Downes  Representative, Canadian Council of Criminal Defence Lawyers
  • Jan Westcott  President and Chief Executive Officer, Association of Canadian Distillers

4:05 p.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

In terms of your opening or earlier comments about reform of this part of the Criminal Code, I'm a big supporter of that, as I think you know, and not only of this part of the code but almost all of the code, because that quote could be applied to a number of other sections of the code that are incomprehensible when one tries to read them in conjunction with other sections.

In terms of activating the provinces to do more, would a simplified, clearer version of these sections help in the role we expect the provinces to play?

4:05 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Yost

I would think, yes. We work in our committee with the provinces on the Criminal Code provisions and what's causing difficulties, and it seems that every few months something new pops up in the courts. If we were able to eliminate some of the technical defences that do not address the central issues--were you driving, were you over 80--I would imagine that would have an effect upon the enthusiasm of the police to lay charges. We did know that the evidence to the contrary problem was definitely giving them difficulties, doing all that work and then having it thrown out. And if they aren't going to be tripped up over extraneous issues, then I imagine that would have an effect upon the willingness of the police to lay charges and on the prosecution's belief in their chances of getting a conviction. So I think both of those would certainly be helpful.

We do have probably the most complex code in the world on this issue anyhow.

4:05 p.m.

Conservative

The Chair Ed Fast

We'll move on to Monsieur Petit.

You have seven minutes.

4:05 p.m.

Conservative

Daniel Petit Charlesbourg—Haute-Saint-Charles, QC

Thank you for meeting with us this afternoon.

My comments will be directed to Mr. Greg Yost.

This is not your first appearance before the committee. We have had some discussions before. I want to be sure I understand your opening remarks clearly. I'm talking about the proposal to lower the BAC from .08% to .05%. Let me explain my question to you this way.

In Quebec, when a driver is sentenced, he loses his license for a period of up to 12 months, faces new fines, gets a criminal record and in some cases, because of that, cannot even travel to the United States. In some cases, if the judge so orders, he must install at his own expense an ignition locking device in his vehicle for a period of 12 months. For three years, he must pay the government extra for additional insurance—because the government is the insurer in Quebec. Lastly, if the government believes the person is an alcoholic, it orders new medical tests, which also means additional expenses must be incurred. So then, if you add up all of the Quebec government requirements following sentencing, even without counsel or without measures to speed up the process, almost everything that is needed is in place.

My question to you is one that is regularly put to Members of Parliament, particularly by members of the media. Imagine for a moment that you have been charged and that you plead guilty. You have injured someone, you have sustained an injury in a car accident and while you are incarcerated, you receive some compensation from the Société de l'assurance automobile du Québec, further to their no-fault insurance scheme. When I mention the Criminal Code to these individuals, they are quite confused. We need to try and sort this all out. A person charged with a criminal offence who has sustained an injury would receive some compensation while in jail in Quebec. As you know, this is a serious problem for us because it is a provincial matter.

Mr. Ménard asked you a very pertinent question. Whether the BAC is 50 or 80, people are still going to be just as upset. I have to wonder why you are proposing a BAC of 50 to us. Not that we do not need the BAC to be 50, but in light of what I have just told you about the system works at the provincial level, I would like to know what advantage you see in lowering the BAC limit to .05%?

4:10 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Yost

For starters, the consequences you spoke of would be more or less the same for all provinces. For example, an Ontario driver would pay higher private insurance premiums after an conviction for impaired driving. Everything you talked about would apply if the BAC limit was lowered from 80 to 50. The consequences would be the same.

I mentioned in my opening statement the possibility of establishing the legal limit somewhere between 50 and 80. Perhaps we could consider a summary procedure, a somewhat harsh penalty given that the individual in question does not pose the same threat as others. I do not know how the Société de l'assurance automobile du Québec would feel about a conviction based on a BAC of between 50 and 80. If Quebec opted to impose an administrative suspension, these officials would be fully within their rights to tack on additional sanctions, from an insurance standpoint. This has nothing to do with the Criminal Code.

You talk about injuries and terms of imprisonment. This is very serious business. Person will be charged under the Criminal Code and could have their license suspended for several years. The consequences in Canada are very serious. More than likely, in cases where the BAC is 80, we will see some of the toughest penalties ever imposed. Neither Australia nor the United States impose minimum $1,000 fines or one-year license suspensions. Again, I don't think we're going to be very successful if we impose tougher Criminal Code sanctions. There are no provisions in the Criminal Code covering cases where the BAC is between 50 and 80. It is up to this committee to decide if individuals who register in this range, who are more dangerous than persons who are sober, should also face criminal charges and if so, what sanctions would be appropriate.

4:10 p.m.

Conservative

Daniel Petit Charlesbourg—Haute-Saint-Charles, QC

Do I have any time remaining, Mr. Chair?

4:10 p.m.

Conservative

The Chair Ed Fast

You have one and a half minutes.

4:10 p.m.

Conservative

Daniel Petit Charlesbourg—Haute-Saint-Charles, QC

I understand your answer, which was worded quite skilfully.

As far as lowering the limit from .08% to .05% goes, I told you how things work in my province. Despite all of the possible sanctions, a record number of alcohol-related accidents are being reported. It is often said that when criminals are stopped early, they can be rehabilitated and set on the right path. Would a BAC limit of 50 not have a deterrent effect? After all, a limit of .05% is very close to zero tolerance. As far as people would be concerned, an allowable limit of 50 would be close to zero tolerance.

4:15 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Yost

Obviously, the committee could hear from persons who have more experience in this area than either myself or Mr. Pruden. All I can say is that in countries where the BAC limit has been lowered, this move has had a deterrent effect. The number of accidents and deaths have decreased.

In Annex 1, we discuss the international experience with RBT. In virtually all countries that have introduced RBT, lowered BAC limits and brought in programs with increased police visibility to enforce the new legislation, positive effects have been noted. Obviously, the possibility of being charged under the Criminal Code might have a greater deterrent effect than the possibility of being charged with a provincial highway safety code violation and having one's license suspended.

4:15 p.m.

Conservative

The Chair Ed Fast

Monsieur LeBlanc, for five minutes.

February 23rd, 2009 / 4:15 p.m.

Liberal

Dominic LeBlanc Beauséjour, NB

Thank you, Mr. Chairman.

Thank you, gentlemen, for your presentation. I'd like to ask you to expand on two particular issues. One is what I think Monsieur Petit and others referred to, or the terrain onto which they brought you, and that is the issue of deterrence. The other one is the simplification of the various measures in the code.

With respect to deterrence, Mr. Yost, I think it may have been in answer to Mr. Murphy's question, but I think I heard you say that a provincial suspension was in fact a very effective deterrent, that the immediate revocation of the driving privilege could be a very effective deterrent. I would have thought that the whole criminal conviction, the public trial, and someone having to show up in a provincial court...and even if they were to plead guilty, the chances are that if they're unlucky, there will be a local journalist there watching. I would have thought that the Criminal Code sanction, with someone getting a criminal record and all that that entails, would in fact be a greater deterrent than simply, let's say, lowering it to 50 milligrams and being able to have a quick licence suspension for three months under provincial legislation, and not having, as Monsieur Ménard was discussing, a criminal sanction. So I'd be curious to have you expand on the deterrence aspect.

Secondly, if we have time, perhaps you could finish your thoughts from when you were answering Mr. Comartin. My sense is that a great deal of the pressure in provincial courts from prosecutors is around the complicated terms of the code, the different decisions, which have in fact provided interpretations to various aspects of the criminal legislation with respect to impaired driving. Can you expand for us in a layman's version how this committee could assist in simplifying the code to increase the prosecutions and the laying of charges in cases?

4:15 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Yost

I'll start with respect to deterrence. Certainly, I am amazed that with the level of the penalties under the Criminal Code, people still drive after drinking. You'd think these penalities would be enough to deter them, but apparently they aren't.

We talked about the loss of a licence. It's when you're talking about a person who is facing the minimum $1,000 fine out of their pocket, but being prohibited from driving for one year.... In that balance, for most people, it's not being allowed to drive for one year that it is the bigger deterrent. The advantage of the provincial administrative suspensions, however, is that they are now immediate in all provinces, I believe. Certainly I know that's the case in Manitoba, where they pioneered this, because I worked on it when I was there. If you're over 80 milligrams, they pull your licence and you're off the road for 90 days, or perhaps longer. You have an administrative appeal of that, which is usually fruitless, because it doesn't have the complicated parts of the Criminal Code. What they seem to focus on is: were you behind the wheel and did you blow over 80 milligrams in the breath test? Those are fairly easy questions to answer.

With respect to the simplification, our federal-provincial committee has for many years recognized that this is a problem. However, we've been developing the drug-impaired driving provisions, and those things that went into Bill C-2. We are now meeting fairly regularly and going through the code virtually line for line with the provincial prosecutors who deal with these things every day, and who say, “We were tripped up over this, and we were tripped up over that.”

I'll give you a simple example. If you don't get your breath test within two hours, you lose your presumptions of identity. It then becomes necessary for the crown to call a toxicologist, who will say, “Well, he blew 150 milligrams two and a half hours afterward.” And then that toxicologist does a back calculation, etc. In some Australian states, within two hours, that's what it is, and then they simply start adding. It's just part of the law: 15 milligrams will be added every hour beyond two hours, because we know you're in the phase of elimination, so why should we have to call a toxicologist and go through all that? That kind of simplification in the Criminal Code could be there.

We have a case that just came across my desk last week, dealing again with this issue of someone being over 80 milligrams after three hours. This case headed to the Ontario Court of Appeal because the affidavit of the toxicologist on behalf of the crown said, “I assume there has been no bolus drinking”—that is, a pile of drinking before he got behind the wheel—“and I'm assuming he didn't drink after he was arrested”, and then there's the scientific stuff. The judge has said, “Well, you established that he didn't drink in between.” That's true, because the police had him under observation. “But you didn't establish that he didn't have anything, or a pile of drinks, just before he got behind the wheel.” So the judge threw out the affidavit and the calculation that this person was at, I think it was, 130 milligrams; I'd have to look at it again. It was at 190 milligrams at the time they were driving, but the judge threw it out because they hadn't established that he wasn't....

How are the police supposed to keep somebody under observation for 15 minutes before they stop him? They stop him at the side of the road.

4:20 p.m.

Conservative

The Chair Ed Fast

Unfortunately, we're out of time.

Thank you.

Monsieur Lemay.

4:20 p.m.

Bloc

Marc Lemay Abitibi—Témiscamingue, QC

Your comments are very interesting, Mr. Yost. I have extensive experience as a defence lawyer—I practised criminal law—and I have argued a number of impaired driving cases.

One thing bothers me. As I see it, what drivers really fear are random spot checks. These are more costly, because they require the presence of more police officers and so forth.

In Quebec, the number of impaired driving cases has declined dramatically. Contrary to what Mr. Petit was saying, pursuant to the Quebec highway safety code, in the case of youths under 16 years of age, or youths between the ages of 16 and 18 with a learner's permit, the zero tolerance policy applies. If the young driver is caught with even a whiff of alcohol on his breath, he loses his temporary license. Already this is a form of education.

I am concerned about two Supreme Court rulings that I read and that I am now re-reading. In Orbanski and Elias, the Supreme Court held in 2005 that if random breath testing was done...I'll read paragraph 55 to you. The Supreme Court stated the following, and I quote: “There is no question that reducing the carnage caused by impaired driving continues to be a compelling and worthwhile government objective. “ Therefore, this measure could block the application of section 1 of the Charter.

I understood clearly what you were saying. You seem quite torn between lowering the BAC limit from 80 to 50, because of the cost involved and the implications, particularly from a criminal law standpoint. Do you feel that it would be better to have more random breath tests, more roadside spot checks and more preventive measures, so that it would be the provinces' responsibility to decide on a BAC of between 50 and 80 and they would have the discretion to act? Above a BAC limit of 80, then it becomes a Criminal Code offence. Have I understood your position correctly?

4:25 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Yost

I'll let Mr. Pruden take a crack at that first.