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 code.

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

5:15 p.m.

Representative, Canadian Council of Criminal Defence Lawyers

Phil Downes

Yes, in terms of your last assertion. Yes, it would be if it were applied nationally through the Criminal Code.

We don't really have a position on whether the provinces should have identical legislation in highway traffic act legislation, so in that sense we don't see it as an equal application issue because each province has decided what to do when they apply it in that way.

We're more concerned in terms of consistency: that provinces have programs to implement, for example, the ignition interlock. Alberta does, as I understand it, and I understand it's been very successful. Ontario doesn't. So in that sense, we only care about consistency to the extent that those things will have a meaningful impact on repeat drunk drivers.

5:15 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Mr. Westcott, you referred to a national alcohol strategy.

5:15 p.m.

President and Chief Executive Officer, Association of Canadian Distillers

5:15 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

I'm not familiar with that. Perhaps you can reference it for me after the meeting.

Do you know of any studies in that strategy or elsewhere, from a toxicology or a biomechanical aspect, as to what are the exact hand-eye or other coordination issues at 0.05 versus 0.08 versus 1.0?

5:15 p.m.

President and Chief Executive Officer, Association of Canadian Distillers

Jan Westcott

There are a lot of them, but they're different for you than they are for Mr. Storseth, and they're different for everybody else in this room.

5:15 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Are you commenting on my weight?

5:15 p.m.

Some hon. members

Oh, oh!

5:15 p.m.

President and Chief Executive Officer, Association of Canadian Distillers

Jan Westcott

No, no. They're just different. There are different factors. That's the problem. They can take an individual and be very specific, but it varies from individual to individual. That's where that subjective judgment comes in: with police officers and other people trying to apply it.

I'm sorry. Did that answer your question?

5:15 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Yes, it has. After the meeting, could you refer me to those studies if you have them?

5:15 p.m.

President and Chief Executive Officer, Association of Canadian Distillers

Jan Westcott

I would be happy to.

5:15 p.m.

Conservative

The Chair Conservative Ed Fast

Thank you.

We have one more question on this side.

Mr. Moore.

5:15 p.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

Thank you both for being here today and providing your testimony.

We're talking quite a bit about the interplay between provincial administrative sanctions and the Criminal Code. Do you both agree, though, that it is appropriate at some level to have a Criminal Code sanction for impaired driving? In a perfect world, would this be taken completely out of the Criminal Code and put entirely in administrative hands?

5:15 p.m.

Representative, Canadian Council of Criminal Defence Lawyers

Phil Downes

I wouldn't take that position. I don't think our organization would take that position. Clearly, impaired operation, particularly when it causes bodily harm or death, particularly when it's a repeat offender or somebody who's been put on notice or somebody who has refused treatment--those people--is clearly criminal conduct.

5:15 p.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

There's pretty broad agreement that there should be a Criminal Code sanction. As a government and as a society, the Criminal Code is our strongest sanction against behaviour that could harm others. I'm wondering about that sanction. You spoke about your client's desire to get back behind the wheel. That's a major concern. How soon can I get driving again? Do you think that most Canadians would prefer to be hit with a roadside administrative penalty, or would they prefer to have a criminal conviction? Which is higher?

5:20 p.m.

Representative, Canadian Council of Criminal Defence Lawyers

Phil Downes

If the consequences, practically, were the same, then clearly, the criminal conviction is more of a problem, because it carries with it an extra burden with respect to employment and travel and those kinds of issues. So a criminal conviction, if it's on your record, carries those extra things. I don't think there is clearly a preference, if you want to call it that.

5:20 p.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

That's what we are weighing now: at what level does that criminal sanction kick in? I can tell you that impaired driving, as the number one criminal cause of death.... We probably all hear from concerned constituents about impaired driving. They would like us to take steps to address it. And they want all governments--provincial, federal, or even municipal--to work together to reduce the harms caused by impaired driving.

I did want one comment from you, Mr. Downes. You mentioned 25-year-old breathalyzers. We heard quite a bit of testimony for our impaired driving legislation, which was referenced, which was included in our Tackling Violent Crime Act. We had some impaired driving provisions. I didn't hear that there was widespread use of 25-year-old breathalyzers. Is that a bit of an anomaly? I would think that most of them are considerably more up to date. I would appreciate your input on that.

5:20 p.m.

Representative, Canadian Council of Criminal Defence Lawyers

Phil Downes

I'm telling you something that was reflected to us by people across the country. It may be that the particular machines are not that old, but some of the technology behind them, in terms of the ability to accurately describe blood alcohol content, is still that old. Far more sophisticated and more accurate machines are used, for example, in hospital settings than what might be used in police stations. I'm just making the point that we shouldn't think that these machines are infallible and incapable of giving erroneous readings.

5:20 p.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

I would just say that we've heard quite a bit of testimony that there have been great advances and that in fact the technology that's being used today, and the breathalyzers that are being used today, have proven to be extremely accurate. That was some of the testimony that led us to do some of the work we did on impaired driving legislation in the past.

Thank you both.

5:20 p.m.

Conservative

The Chair Conservative Ed Fast

We still have a couple of minutes left. I have a question for Mr. Downes.

When we were talking about the randomized breathalyzer testing, I believe you implied that it could violate the Charter of Rights and Freedoms. I think you would agree with me, though, that reasonable people, reasonable counsel, reasonable legal experts, can differ on whether the saving provisions of the charter would apply to any particular legislation, including RBT. Ultimately, it's the courts and the Supreme Court of Canada that would make that determination. Correct?

5:20 p.m.

Representative, Canadian Council of Criminal Defence Lawyers

Phil Downes

I agree with you.

5:20 p.m.

Conservative

The Chair Conservative Ed Fast

We will not know whether any particular legislation that might permit randomized breathalyzer testing actually will be saved by section 1 of the charter. Would you agree?

5:20 p.m.

Representative, Canadian Council of Criminal Defence Lawyers

Phil Downes

I agree.

5:20 p.m.

Conservative

The Chair Conservative Ed Fast

Does anybody else have a quick question?

Seeing none, I want to thank both of you. Your information has been very informative and helpful. You're free to go.

The meeting is adjourned.