Justice Committee on Feb. 23rd, 2009
A recording is available from Parliament.
On the agenda
Counsel, Criminal Law Policy Section, Department of Justice
Mr. Yost will finish.
The random breath testing and roadblocks are very important tools. Whether the random breath testing would be done at a provincial level or under the Criminal Code, it could be a very helpful tool for police, because then drivers would think that at any time, anywhere, they could be pulled over and possibly asked for a breath test. Currently, with respect to deterrence, if I'm an individual who is a drunk driver and I repeatedly drive drunk...the statistics from the Traffic Injury Research Foundation tell us that something in the order of 3% to 5% of drinking drivers commit 84% of the drinking and driving offences. So a small percentage of drinking drivers repeatedly behave this way and account for the vast majority of drinking and driving offences situations. Why do these people continue to do that? Because they are aware that out of 200 impaired driving trips, they will be detected on an average of one occasion in Canada. That's an optimistic estimate.
So if I know that last Friday night I was driving home drunk from the bar and I wasn't caught and I didn't get into an accident, am I going to drive home tonight on a Friday after I've been drinking and I feel less impaired than I did last Friday, when I made it home and the police didn't stop me? The behaviour of individuals who are drinking and driving repeatedly is reinforced, because they are not necessarily stopped or detected by the police officers who might not even smell alcohol and give them a test, or they just make it home without being stopped. That's a beginning to an answer. I'm sure Mr. Yost will have something further for you.
The Chair Ed Fast
We're actually out of time. I'm going to leave a little bit of room for the last question from Mr. Norlock. If he wants to follow along the same line of questioning, that's fine, but that is his prerogative.
February 23rd, 2009 / 4:25 p.m.
Rick Norlock Northumberland—Quinte West, ON
Please go ahead and finish what you were going to say.
Counsel, Criminal Law Policy Section, Department of Justice
With respect to the roadblocks and so on, they are very effective. The random breath testing serves two purposes. One is that these roadblocks--setting them up and all of that sort of thing--are very police-resources intensive. When you do set them up, they're more effective when you have the random testing because you don't have to interview people and try to decide whether you smell alcohol. You just present the thing and they blow in it. That's how they do it in Europe. That's how they do it in Australia. Wave them in and they blow. If they blow under 50 in Australia, they send them out. Presumably in Canada, if they get the warning, they get the provincial...so that does that.
The other thing it does is this. Canada is a rather large country. In rural areas, etc., and on roads that are not heavily travelled, you're not going to be able to set up these roadblocks and have them there so that you can stop 10 cars in three hours or something, but if you do see somebody doing something and you have that in your car, you can immediately demand that they provide a breath sample, and you can either clear the person right away--if it isn't alcohol, that's their problem--or perhaps you have them now and you can continue on with the approved instrument test.
We are not advocates here. I'd love to be one, but Winnipeg South didn't elect me, so that's the way it goes.
The 0.05 and RBT are not mutually exclusive or anything. We could do them both if you want us to. We'll find a way to do it.
The Chair Ed Fast
Thank you very much for your contribution to our study.
I'm going to suspend now for two minutes, and then we'll have the other two witnesses here.
The Chair Ed Fast
We'll reconvene the meeting.
I want to welcome Mr. Phil Downes, representing the Canadian Council of Criminal Defence Lawyers.
Jan Westcott is not here, so, Mr. Downes, you may have some extra time with us, which is probably to your advantage. There's no client to bill, Mr. LeBlanc says.
The other thing I wanted to confirm is that Mr. Comartin is going to be leaving, so he has asked that Ms. Leslie be given an opportunity to ask questions. Do we have consent to do that?
Some hon. members
The Chair Ed Fast
Hearing no opposition, we'll allow Ms. Leslie to ask questions.
Mr. Downes, you have 10 minutes, and then we'll open the floor to questions.
Phil Downes Representative, Canadian Council of Criminal Defence Lawyers
Good afternoon. My name is Phil Downes. I bring greetings to you on behalf of my colleague Bill Trudell, who is the chair of the Canadian Council of Criminal Defence Lawyers and who is known I think to many of you. We are once again extremely honoured to have the opportunity of appearing before this committee to help with the very important work you are doing.
I am a criminal defence lawyer in Toronto, but you should know that I was a crown prosecutor for eight years. I trust that I bring a perspective to you that is informed, balanced, and helpful as you consider these challenging issues.
As I expect you all know, our council was formed in November of 1992 with the encouragement of the then justice minister, the Honourable Kim Campbell. With the purpose of offering a national voice and perspective on criminal justice issues, we have representation throughout the country. We are concerned first and foremost with ensuring that the criminal law develops in a manner that is consistent with the principles of fundamental justice and that is practical and workable across the country. We are very grateful to have been given the opportunity to address you today. I hope we can offer some constructive comments on the pressing issues you are addressing in this committee.
I have a handout concerning the Canadian Council of Criminal Defence Lawyers. If anybody wants some further information about it, please feel free to take one.
We believe passionately that real progress in the reform of criminal justice has been and can only be made through the cooperation of all parties. The national steering committee on access to justice is just such an initiative. I am sure that those who are involved, whether they are police, crowns, defence counsel, the judiciary, victims groups, politicians, or bureaucrats will tell you when they get together in a room they have far more in common than they have differences. The goals are fundamentally the same: safe communities, fair trials, efficient use of resources, and a recognition of the constitutional values that underpin our criminal justice system.
With that said, let me turn to some of the specific issues you are examining. Let me first comment on the proposal with respect to the criminal level of blood alcohol. In one sense we really don't care what the limit is. Whether it's 0.08, 0.05, 0.01, or zero, we appreciate the business, I suppose. As an absolute number, it's largely irrelevant to us, and in and of itself, this doesn't implicate issues of fairness; it's a choice to be made.
In our respectful submission, any decision to reduce the prohibited blood alcohol content level must take into account the serious implications for the administration of justice in Canada. The burden of cases in our provincial courts today is in many jurisdictions at the breaking point. That burden, we submit, should not be increased unless it is clear that the net results will be worth the increased costs that will inevitably result. We say that the added financial logistical and practical costs placed on provinces and cities across Canada that operate the front lines of our courts and our police services will be enormous.
Think of the practical problems before you even get to a courtroom. I believe in your hearings a year ago there was evidence as to how long it took police officers to complete an impaired driving investigation, and it was something along the average of four hours. If we want a lower blood alcohol content we should expect more investigations, and we should expect the chiefs of police of every police service in the country to rightly ask for more officers and more resources. A lower limit would surely give the police more cases in which they would have reasonable grounds to arrest someone. That person needs to be taken to a police station and a breathalyzer has to be administered, so you should expect a need for more qualified breath technicians and breathalyzer instruments. If you're arrested you're entitled to free legal aid advice, so expect the various legal aid plans across the country to want more resources.
Don't be surprised if the number of charges that are stayed for an unreasonable delay are increased substantially. Our representative in Nova Scotia tells me that one can reasonably expect to wait up to a year to schedule a simple two-day trial; many parts of Ontario are the same. I speak from practical experience when I say that prosecutors in many jurisdictions really have no choice but to resolve these charges by way of a plea to a provincial offence because they know they don't have the resources to take the number of cases they already have to trial.
I say to you that you must be very sure that the benefits of reducing the blood alcohol content level will outweigh the enormous costs that such a move would incur. Can we be sure that such a change would not mean that police resources are being taken away from the detection and investigation of serious repeat drunk drivers who are at a greater risk to kill somebody on the road? In our view, the fact that impaired driving has displayed an almost uninterrupted trend downwards since 1981, and without a reduction in blood alcohol content level, is indicative that societal factors are really far more relevant to changing behaviours than the reduction of any particular blood alcohol standard. I'll come back to that in my closing comments.
I haven't talked about technology--there isn't time--but you must bear in mind that the machines that are used, the breathalyzers, in some cases are 25 years old, and their reliability is highly questionable still. The extent to which you lower a blood alcohol content level raises the spectrum in which there will be factually innocent people convicted because the reliability, we say, decreases to the extent that the prohibitive blood alcohol level is lower.
Let me turn to the issue of random breath testing. It's important to understand what we really mean by this. I think we can do that by talking about—in Ontario, at least—the RIDE programs that you've already heard about today. There the police have the right to systematically stop and question every driver about their alcohol consumption without articulable grounds to do so. The police are trained to do that and to make those assessments based on those very simple questions. One question we would ask is, what are you saying about the skills of police officers in conducting those investigations if we think they need a completely unfettered basis to demand a breath sample? We think they're capable, through their experience and training, of drawing a conclusion as to whether the person has consumed any alcohol, or indeed whether they are lying when they say they haven't. The threshold is extremely low.
Are we saying we want police to simply be able to administer a roadside screening device to every driver stopped in a RIDE program? What will that do to the amount of time it takes to administer that program? So be prepared, I say, for the courts to say to them that this kind of arbitrary detention without access to counsel is no longer a reasonable and justifiable breach of the charter. Don't forget the Supreme Court of Canada said that these kinds of programs were a violation of the charter but were justified under section 1.
I should also add that our representatives in the Yukon whom I spoke to about this issue also have concerns about the criminalization of people who are already marginalized by poverty and by criminal charges and whose public life may be subject to greater policing if random testing were in place. We think the public would rightly be concerned about increasing the already significant interventions on privacy with random testing.
Let me turn to the question of ignition interlock. Virtually everybody thinks this is a great idea. Why? Because it works, and it's effective, we think, in reducing recidivist drunk drivers. As you know, the code provides for relief from the period of prohibition upon conviction if the driver installs the ignition interlock device. The problem is that too many provinces have not implemented that program. In our view, the federal government should consider taking steps to ensure that provinces do operationalize this section. Nova Scotia, I understand, has relatively recently enacted these regulations. Our report from there is that the first effect that criminal defence lawyers noticed is the significant increase in the number of guilty pleas because people realize that the single biggest inconvenience they will face—i.e., the inability to drive—can be mitigated by an ignition interlock, which is effective in stopping them from drinking and driving, particularly recidivist drinking drivers, but allows them not to lose their livelihood.
We say it's crucial also to recognize the regional differences and the differences in impact that this program or that the suspension of a driving licence can have. The situation for a farmer in rural Alberta whose licence is suspended for a year is very different from that of somebody living in a condo in downtown Montreal or Vancouver. In Yukon, where public transportation outside of the major centres is virtually non-existent, a prohibition on driving means that people essentially lose their livelihood. So it's very important to keep in mind the regional disparities in that program.
The Chair Ed Fast
Mr. Downes, I'm going to have to ask you to wrap up.
Representative, Canadian Council of Criminal Defence Lawyers
Thank you very much.
Let me just say that targeting repeat offenders and changing behaviours go well beyond the criminal justice system. We think that creative education has been shown to be the way to go and will do far more to solve the problems you're looking at than will some of the measures you're considering.
I'm very grateful for your time.
The Chair Ed Fast
We welcome Mr. Jan Westcott, representing the Association of Canadian Distillers.
You have ten minutes to make a presentation.
Jan Westcott President and Chief Executive Officer, Association of Canadian Distillers
Thank you very much, Mr. Chair.
I'm Jan Westcott. I am the president and CEO of Spirits Canada. We're also known as the Association of Canadian Distillers.
I appreciate the opportunity to appear before you today to talk about our industry’s views on reducing the incidence of impaired driving.
We're a national trade association that represents the distilled spirits manufacturers and marketers in Canada. We use Canadian agricultural materials, mostly grains in central Canada and the west, to produce distilled spirits, which we both sell here in Canada and export to some 162 countries around the world.
We are in fact Canada’s leading exporters of beverage alcohol and are proud that our signature product, Canadian whisky—which we hope some of you will be familiar with—remains the most popular selling whisky in the United States, the largest market in the world.
We also import and sell a broad range of spirits produced in other countries, and together our member companies account for over 80% of all spirits sold in this country.
One of the fundamental goals of the association and its members is the fostering of responsible use of all beverage alcohol products. In pursuing this goal, the industry participates in a wide range of activities, including sponsoring public service campaigns, providing targeted education programs, and advertising in the media. All of these are aimed at heightening awareness of the importance of responsible consumption. In fact, many of our initiatives focus on the prevention of drinking and driving.
We also collaborate with recognized safety, addictions, and academic organizations to conduct research and to bring forward new ideas for combatting alcohol misuse. We work with governments at all levels to develop policies to eradicate drinking and driving.
In this vein, we were amongst the original group that pressed for updating Canada’s approach to reducing the harms associated with the misuse of alcohol and were pleased to serve on the various steering committees and working groups over three years culminating in the creation of Canada's new national alcohol strategy. This strategy was formally launched in 2007 by Health Canada, the Canadian Centre on Substance Abuse, and the Alberta Alcohol and Drug Abuse Commission.
Recognizing that the strategy is simply a plan for achieving progress in addressing issues surrounding the misuse of alcohol, we continue to be active participants in working to make the strategy come to life through the realization of new initiatives and programs.
Within this context, I want to share with you our thoughts on some of the matters you are exploring.
The Chair Ed Fast
Mr. Westcott, may I ask you to go a little more slowly? Our interpreters are having a little bit of difficulty.
President and Chief Executive Officer, Association of Canadian Distillers
For a whole host of reasons, we do not support lowering the Criminal Code threshold of impairment from 0.08 to 0.05 BAC. The fact is that all Canadian provinces and territories, with the exception of Quebec, whose legislature did consider and reject adopting such administrative measures about 14 months ago.... They had quite a deliberative process, looked at it and said, “not at this time”. All of the rest of the provinces and territories maintain and enforce roadside administrative sanctions that immediately take drivers off the road if they have been drinking but their BAC is below 0.08. These administrative procedures are already effectively dealing with persons who register at 0.05 BAC, and in some provinces at lower BACs, and they are doing so in a way that gets potentially at-risk drivers off the road quickly and with minimum fuss. Moreover, led by the Canadian Council of Motor Transport Administrators, improvements are being made to these locally administered programs to make them even more useful in deterring people from drinking and driving.
It’s also significant that the diverse group of people who undertook the creation of Canada’s new national alcohol strategy purposefully declined, amongst their 41 recommendations, to include any proposal for lowering the current criminal threshold. This group of people, comprised of addictions organizations and experts; the medical community; academia; interest groups; federal, provincial, and municipal governments; native community representatives; police, road safety, and research authorities; and industry, chose not to include changing the threshold, believing that there were much more robust opportunities to reduce and eliminate drinking and driving than amending the legislation in this form. And lest anyone assume that drinking and driving wasn’t considered by the group, I want to draw your attention to five separate national alcohol strategy recommendations that deal specifically with the issue of drinking and driving.
Recommendation 37 endorses and supports the “Strategy to Reduce Impaired Driving 2010”, or STRID. You may have heard about that; I'll come back to it in a minute.
Number 38 supports CCMTA's short-term suspension model and other actions to address drinking drivers with lower BACs.
Recommendation 39 calls for reinvigorating law enforcement around drinking and driving, in part to deal with the persistent suggestions that police are not pressing criminal charges unless drivers are at or over 0.10.
Recommendation 40 calls on government to focus on high-risk and alcohol-dependent drivers as well as repeat offenders--those with BACs often well above the legal threshold--and to actively pursue more widespread use of technology to help mitigate these well-identified subsets from getting behind the wheel.
Recommendation 41 calls for graduated licensing, including zero tolerance—that's zero BAC—for all drivers below the age of 21 years.
The national alcohol strategy members felt strongly that these actions--rather than lowering the criminal threshold--were the ones that could deliver the most progress over the shortest time in combatting drinking and driving.
I won't take the time now to detail the various actions embodied in these five recommendations, but I would be pleased to answer any questions you might have about them.
I want to turn to a notion that you will hear repeated by those promoting a reduction in Canada's legal threshold. You will be told that countries around the world are moving to lower their policies to embrace the 0.05 threshold and that Canada is falling behind by not taking such action. Now, given Canadians' deep-rooted desire not to be out of step, this is a popular notion, and while part of it is accurate, it really presents a distorted picture of what's occurring. The true part is that many countries are moving to 0.05 BAC and to even lower BAC thresholds in some cases. The false assertion is that these countries are making 0.05 BAC their criminal threshold.
In a study conducted at the University of Ottawa for the Canada Safety Council in 2002--which was then updated in 2006--it was established that the vast majority of countries that have adopted 0.05 BAC have done so administratively and not through their criminal law. I understand that the Safety Council is again updating that study to reflect more current realities. Indeed, what the study found is that many countries are doing exactly what Canadian provinces and territories have been doing for a long time, which is using roadside administrative sanctions to get people who have been drinking off the road. They are not using their criminal law to criminalize driving at 0.05 BAC, as some are proposing we do here.
I'd like to come back just for a moment to what is being done in this country to deal with drinking and driving, and the result it is producing. About a year ago, the Canada Safety Council appeared before this committee. I want to reiterate a few facts they shared when they were here. They reported that road crashes involving drivers who had been drinking took 851 lives in 2005. Of these, 459 were drivers whose blood alcohol concentration was above the legal threshold of 0.08. They went on to state that the 2005 fatalities were down by 34% from 1995, when 1,296 driving deaths involved drinking drivers. In part, they attributed the decline to the fact that provincial governments and Transport Canada, along with many non-governmental organizations, had been making concerted efforts to deal with this issue. CCMTA has been coordinating efforts across all of these jurisdictions and levels of government to design and improve measures to reduce the incidence of drinking and driving. One of the most significant activities that occurs right across Canada is the aforementioned police intervention with drivers with BACs at or above 0.05.
My colleague just mentioned technological advances, and I want to lend our support to them. Numerous safety and expert organizations have cited the availability of new developments such as ignition interlock, and they recommend them for chronic repeat offenders who pose public safety concerns. The federal government should be doing more to facilitate the use of these devices and should work with the provinces and territories to find out why we're not seeing more uptake of them. These instruments save lives by keeping those with known problems with alcohol away from cars. Their use should be expanded. When you consider that an overwhelming majority of drunk driver deaths are caused by drivers well above the 0.08 criminal threshold, we think it is a cause for concern that these devices are not more commonly available.
In a January 2008 research study for Transport Canada, the Traffic Injury Research Foundation reported that 55% of fatally injured drinking drivers had a BAC level of over 0.16. So more than half were impaired at more than twice the legal limit. Thirty percent were between 0.08 and 0.16. Ten percent of fatally injured drivers who had been drinking had less than 0.05, while only 5% of those drivers had BACs between 0.05 and 0.08.