Justice Committee on March 2nd, 2009

[Robert Solomon]

The random breath testing programs operate in two ways. In some jurisdictions, any officer can pull over any car at any time and demand a sample on a roadside screening device. In other jurisdictions, they have established sobriety checkpoints, where every driver going through the checkpoint is subject. So for Parliament and airplanes, it's like the latter situation, where everyone goes through the testing. There's no discretion. They're still waved over at random, but everyone goes through the testing.

I would be happy with either. I'm not particularly perturbed if we give that power to the officers, because right now we give the officers the right to stop vehicles at random, both during routine patrol and also at sobriety checkpoints. I wouldn't be perturbed. But if we had to simply limit “random” to checkpoints and there's random screening and everyone going through the checkpoint, that would be a major step forward, and one that we would favour.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I agree with that analogy. I agree that a sobriety checkpoint where every driver has to submit to some sort of test would be more analogous to the courthouse. But then comes the issue of what is an unreasonable search and seizure, with respect to the issue of delay, and to the Oakes test in the Supreme Court of Canada and to proportionality. Walking through a metal detector at a courthouse or an airport or a parliament building is a fairly expeditious process, but if you're going to stop every car at a security checkpoint, there are conceivably going to be vehicles that are detained for hours. Would you not agree with that?

[Robert Solomon]

No. In Australia and other jurisdictions where they have random breath testing, at sobriety checkpoints they're able to run people through very quickly, just as right now the police don't line up cars for two and a half hours at RIDE programs. I wouldn't see that as a problem.

As a matter of fact, with random breath testing, it's faster, because you're not looking for individual signs of impairment. If you're driving, you have to blow, and they are able to conduct these very quickly.

In some jurisdictions in Australia, every driver would be subject to random breath testing probably one or two times a year, and it has a major deterrent impact.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I'm not questioning deterrent impact, and I support your passion for this issue; I really do. My concern is limited to the law and what our courts have said with respect to unreasonable search and seizures.

I want to be clear: I'm with you, but I think you have a problem with respect to random testing.

[Robert Solomon]

There's no question that random testing, whether in a sobriety checkpoint or by officers during routine patrol, would violate paragraph 253(a). It's an unreasonable search and seizure, because there are no individualized grounds for suspicion. The question is whether it can be justified under section 1 of the charter. Our courts have already upheld random screening in lots of other circumstances where the state interest is much lower.

The other thing I think we have to understand is that we're not doing well on impaired driving. We haven't been doing well for quite some time. We've tried this and that and the other thing, and it's not working: impaired driving deaths are going up in our country. Other countries around the world that are developed democracies have introduced random breath testing, and it works.

[The Chair, Conservative, Ed Fast]

We'll move on to Mr. Bagnell for a third question—is that right?

You'll have five minutes.

[Larry Bagnell, Liberal, Yukon, YT]

I just have one question. It's for Eric, from the Canadian Automobile Association.

I know you have engineers working 20 years in advance. I'm just wondering whether, as forward thinking, the car manufacturers are thinking of any fancy devices that might inhibit any intoxicated person from driving a new vehicle and whether the insurance companies are thinking, if a person bought that particular option in their car, that their insurance rates would be lowered.

[Eric Lamoureux]

Thank you for the question.

We work closely with auto manufacturers on developing new technologies, and the simple answer to your question is no. There has been a lot of research, and innovations have been done for improving sight lines, improving visibility at night, and those sorts of things, but in terms of driver behaviour that extends to blood alcohol content or any sort of impairment in that respect, no, there hasn't been any, to my knowledge.

[Andrew Murie]

I can answer the question.

MADD Canada and MADD U.S. sit on an international group with the car manufacturers, and we're working on a non-breath-invasive test to determine blood alcohol levels. Basically, for Canada we're looking at the 0.05 level. If the person is below that level, the car will just start; you won't even know that the technology is there. If it's above 0.05, basically the ignition of the car would not be able to start it.

We're hoping, through this blue-ribbon panel, to have a prototype in cars within a couple of years and hopefully available to fleets and various rental cars within the next five to seven years. The science is there, it's realistic, and the car manufacturers are most willing participants, but in the meantime we need to address some of these other issues.

[The Chair, Conservative, Ed Fast]

Mr. Dosanjh, you have three minutes.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

Mr. Solomon, I want to pursue the line of questioning of my friend, Mr. Rathgeber.

The kind of model you're proposing, where all the cars go through and each one is tested...you may call it random because the test locations move from place to place, but that is certainly not random. You simply plant yourself in one place and you test everyone going through. I don't know how random that is. It's a random location, but not random testing. That's the first point.

The second point I want to make with you is that there's obviously real crime, whether it's the gangs, whether it's carnage on the roads. I am actually afraid. I came to this country in 1968. I came from Britain. Prior to that I grew up in India. I'm afraid that every year the level of fear and the intensity of fear created in the minds of Canadians is going up, in the way we express ourselves about issues. And when fear goes up, people give in very readily to the prescription of the limiting of their liberties and freedoms.

This is a much larger question. I know there's carnage on the roads. There are alternative ways of dealing with those issues. I want to put to you that it may be constitutionally valid, ultimately, for us to do what you're suggesting. I don't know whether it would be. It might be. But is it desirable to focus on that, rather than on the other alternatives that can get us to the same point?

[Robert Solomon]

Thank you for that question.

The problem is that there are no alternatives that can get us to that same point, and that's what all the research indicates.

In 2006 we had 1,278 impaired driving deaths, 77,000 injuries, and 220,000 damaged cars. That's the status quo. The question I want to ask this committee is this. How are we going to reduce that? I don't see a whole lot of other measures available. The research also indicates that, of all the measures we can do, random breath testing—and I know you object to the term, but that's what it's called—is the most effective. The question is—there's no answer to this question, and I think we all have to answer that in our hearts—does the state interest, does the public interest, in traffic safety justify this unreasonable search and seizure, because it's without individualized suspicion? Given that impaired driving is the number one criminal cause of death in this country, given that your chances of being killed in an impaired driving crash are twice as great as your chances of being murdered, given that a disproportionate number of the victims of impaired driving deaths and injuries are young people, I answer that question yes.

Now, one of the things I find interesting is that I think we overinvest, probably, and the media certainly gets overinvested, in spectacular crime and we don't look at the much greater causes of death and injuries on our roads. So my own personal view is, yes, it is a violation; it's an unreasonable search and seizure. I think it is wholly justifiable, and I think the interests of the public justify this intrusion.

[The Chair, Conservative, Ed Fast]

Thank you, Doctor.

We'll move on to Mr. Dykstra. You've got five minutes.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you, Mr. Chair.

I too, like Mr. Bagnell, served on the justice committee in the 39th Parliament. I have to say we didn't meet in the afternoons—we actually met in the mornings—and Mr. Bagnell, through great strain and consternation, subjected himself to an alcohol intake so he could be tested on the machine, if you will. It was an amazing sacrifice he made that morning, and he proved that the machine did work. So it was a case study that was well documented.

This is a question to you, Mr. Robertson. I'm sorry, I can't quite see you; we're on the same side of the table here.

We didn't quite take this approach, in terms of getting into the details of our court system and where things stood as part of the rationale as to whether or not we should lower to 0.05 from 0.08. You talked a lot about the defence counsel, or mentioned the defence counsel, and the amount of time it takes to prepare for a case. Could you take me through that a little bit, to suggest why it takes so much longer for the defence to prepare a case in this regard than it does for the crown?

[Robyn Robertson]

It's because they have the luxury of more time to prepare for a case.

[Rick Dykstra, Conservative, St. Catharines, ON]

If that's the case, I assume it's because somebody is paying them to do so.

[Robyn Robertson]

Right.

[Rick Dykstra, Conservative, St. Catharines, ON]

So how do we solve that issue? I know you make the case that at least at the present time it wouldn't necessarily lead to more convictions if we went to 0.05. But as we've heard Professor Solomon mention, there is pretty non-refuted proof that if we go to 0.05 the conviction rate will increase and the rate of those who are driving while under the influence will be lower.

How do you not relate the two?

[Robyn Robertson]

Could you rephrase the question?

[Rick Dykstra, Conservative, St. Catharines, ON]

Professor Solomon is making the argument that if we go to 0.05--and it's been proven in a number of countries that have gone in this direction--fewer people will be driving while impaired. Your argument on the legal side is that we shouldn't go down that road because it's going to lead to fewer convictions. So I'm having a little bit of trouble marrying the two concepts and strategies. I wonder if you can just elaborate a bit more on yours.

[Robyn Robertson]

What we found was based on a study we did here. I think with some of the studies Mr. Solomon is talking about, we don't have a sense as to what their justice system was like or how efficient they were in processing cases. It's very different from country to country.

Our position is based on what we know the current position to be here in the justice system, and the ability of the crown to cope with the cases they have. So I think it's important to recognize that that would bring a large number of cases into the system. From what we've seen to date, people are very willing to go to court and fight criminal convictions and licence suspensions. So I don't see any justification for thinking it would be different for people at a lower BAC. If anything, I think there would be more cases at a lower BAC than at a higher BAC.

[Rick Dykstra, Conservative, St. Catharines, ON]

I don't mean to get too detailed here, but in your study was there a country you paid more attention to in order to get an understanding of why they may have been able to process cases more quickly than we do?

[Robyn Robertson]

We didn't look at other countries; we just looked at what was going on in Canada. But anecdotally we've learned--given that we do research in a lot of different countries--that even if they have a 0.05 criminal sanction, it's not necessarily enforced as a criminal offence. That may explain why it's easier for them to process cases more quickly.

[Rick Dykstra, Conservative, St. Catharines, ON]

In the 39th Parliament we passed Bill C-2. It went into a couple of areas, and I think it had the support of most of the witnesses around the table. In fact, all of the members who are sitting at this table endorsed the areas of increased fines and sentencing for those convicted. It included the eradication of the two-beer defence. It also went down the road with respect to defining the potential for those who take drugs to be seen as being intoxicated or unfit to drive, and therefore charged under the Criminal Code.

[The Chair, Conservative, Ed Fast]

Mr. Dykstra, you're out of time.