Justice committee  I'd agree 100%.

Justice committee  Yes.

Justice committee  I have a couple of answers to that. One, the judges are sentencing someone 25 or perhaps 50 years before they are parole-eligible. So they are seeing a person in the span of time, likely at a point in time relatively close to when they committed the offence. It's likely they're seeing these individuals at their lowest, or close to it.

Justice committee  Thank you very much, Mr. Chair. The Criminal Lawyers' Association welcomes the opportunity to appear before this committee on the important issue raised in Bill C-48. As many of you know, the Criminal Lawyers' Association is a not-for-profit organization founded in 1971. We represent over 1,000 criminal defence lawyers across the province of Ontario.

Justice committee  You can already charge. Right now, if you can prove that a person was drinking alcohol following a motor vehicle accident in order to frustrate the taking of the test later, if you can establish that, you can already charge them with obstructing justice or obstructing a police officer.

Justice committee  If you look at the section 9 jurisprudence, it's the arbitrariness, which is defined by randomness, that is actually the nature of the charter violation. Tied to that, we know from all the case law coming back earlier, on the section 1 analysis, that randomly stopping motorists for a friendly chat is fine, but if you're going to put a breathalyzer in their face or at least a roadside screening device, you have to meet some minimum constitutional standard, because it is a seizure.

Justice committee  Well, if you stopped everyone on the street and demanded every time you get in the car you need to provide a breath sample, apart from moving a step closer to a Big Brother police state—it is a step closer to that, but leaving that aside—it would no longer be random; it would be universal.

Justice committee  Let me just add a few minor points. One is to add flexibility to the criminal justice system, because right now there's inflexibility, which leads to an insistence on trials in drunk driving cases and an insistence on fighting these cases tooth and nail to the very end. If there were a measure of flexibility in terms of punishment, matters would be different.

Justice committee  I'd be happy to help on that latter question. The primary concern for most people is the ability to drive, because it's usually the contingent factor on their employment. We'll often get clients who come in, for example, a truck driver with a family, and the only way to support the family is by driving.

Justice committee  If I could offer my clients an incentive either to plead guilty early or to not fear the consequences—and the biggest one they ask about is the ability to drive—if I could tell them I can get them back driving, albeit in a manner that is controlled and safe, with the use of an interlock device, that would be a significant feature that I think would mitigate both towards earlier resolution, higher resolution, and greater acceptance of responsibility.

Justice committee  The Supreme Court of Canada, thankfully, is on my side on the issue of detention, in the sense that they have spoken very clearly, and for 20-plus years at this stage, and have said that stopping a motorist is a detention from a constitutional perspective.

Justice committee  Well, so far to date, yes, the balance has been struck. We say it's been struck because you need reasonable and probable grounds to arrest and because you need reasonable suspicion. You need some basis for asking for a breath sample, right? But leaving aside the detention issue, there is the search issue as well, because ultimately it is a search and seizure to take a sample of someone's breath.

Justice committee  Maybe I'll take over that question from a constitutional perspective. Ultimately, one of the key features of the balancing act is a penalty that involves jail. So yes, if you structure a penalty system that removes the possibility of jail and reduces it to a fine or suspension, you are going to alter the constitutional playing field for the balancing.

Justice committee  No--

Justice committee  Thank you, Mr. Chair, honourable members. The Criminal Lawyers' Association welcomes the opportunity to appear before the standing committee on what is obviously a fundamentally important study. Our organization represents 1,000 criminal defence lawyers across the Province of Ontario.