Bill C-2 (Historical)

Tackling Violent Crime Act

An Act to amend the Criminal Code and to make consequential amendments to other Acts

This enactment amends the Criminal Code by
(a) creating two new firearm offences and providing escalating mandatory sentences of imprisonment for serious firearm offences;
(b) strengthening the bail provisions for those accused of serious offences involving firearms and other regulated weapons;
(c) providing for more effective sentencing and monitoring of dangerous and high-risk offenders;
(d) introducing a new regime for the detection and investigation of drug impaired driving and strengthening the penalties for impaired driving; and
(e) raising the age of consent for sexual activity from 14 to 16 years.

[Craig Jones]

Thank you for that question, Mr. Comartin.

The society is driven by very high-quality evidence, most of which you're probably aware is produced here in Canada, on how to reduce recidivism and reoffending. And from our standpoint, the more emphasis we put on security or building prisons or—with respect to my friends here—law enforcement, the less resources are put into exactly the kinds of treatment programs that produce results.

I will direct a comment to Mr. Harris, who has absented himself for a moment. Bill C-2 does not stand in isolation. Bill C-2 stands in the context of the new national anti-drug strategy, and these things have a tendency to combine.

With respect to Mr. Harris' observation, from our standpoint, when I looked at the text of the national anti-drug strategy, I looked in vain for the words “evidence-based” or “harm reduction”. Here are two concepts that are endorsed by every expert body, from the World Health Organization to the Canadian Medical Association, and they were nowhere to be found, and that signals something to Canadians. I think the message is we're not interested in the evidence; we're interested in ideology.

Now I'm going to defer to the legal experts on the evidence base for the case you're referring to, but our persistent complaint is that we don't fund treatment programs adequately, given what the evidence says about their success in creating safer communities.

[Dick Harris, Conservative, Cariboo—Prince George, BC]

If we have a reverse onus system that works in the parole system for parole applications today, why are you so afraid of it as Bill C-2 would extend it to another part of the justice system?

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for that.

I think this bill is dealing with the most exceptional situations. Bill C-2, with respect to dangerous offenders, is dealing with what could be termed the worst of the worst offenders in Canada. There was some reference made to someone who may have had what's termed “less serious” crimes. That's not what this bill is going to target.

I think we're all aware, at the end of the day, that there is still a tremendous threshold and there are tremendous safeguards, including our Constitution, that will protect all Canadians from this being too broad in scope. But at the end of the day, we have a situation where there are individuals who have shown, unfortunately, no desire whatsoever, and no ability, to be rehabilitated even though they've had maybe dozens of contacts with the justice system. These are people who commit very serious offences like the ones set out in this bill—the primary designated offences, for example, which are perhaps the worst imaginable offences. What we've said is that we have to act to protect Canadians from those who have shown no desire to be rehabilitated and are committing the worst offences.

To the Association of Chiefs of Police, in a way these are rare individuals, fortunately, and the dangerous offender provisions would apply to the very worst offenders. From your experience or through your representation, I'm wondering if you could tell me what are some of the challenges in dealing with the most high-risk offenders, the most dangerous offenders in Canada, as opposed to those who, although they have committed serious crimes, don't fit into this category. I'm speaking specifically of the recidivist nature.

[Isabel Schurman]

I'd like to thank you all for the opportunity to come back and speak with you again.

I will limit the comments I'm making now to what was Bill C-27, given that the invitation I received indicated that this is of particular interest to you. Should anyone have questions on other parts of Bill C-2, I will try to address them.

The most troubling part of Bill C-27, which is now part of Bill C-2—Actually, there are two most troubling parts. First, it's not necessary. It doesn't cover any situation of dangerousness that the present law does not already cover. The second very troubling aspect is twofold. The removal of judicial discretion is disturbing, and it's a disturbing theme reoccurring in numerous criminal law bills. A second part of that is the reverse onus provisions contained in Bill C-27. These provisions will not survive a constitutional challenge if we rely on Supreme Court of Canada jurisprudence over the last 20 years.

The bill resembles a kind of U.S. three strikes legislation. Although there are clear differences, copying the U.S. model, even a loose copy of it, is neither necessary nor workable.

As the present law stands, the crown “may” apply for an assessment to have someone declared a dangerous offender and the judge “may” order the assessment. The trigger is the conviction for a serious personal injury offence. The present law in that category includes all indictable offences with sex or violent components, all conduct that endangers individuals, even including psychological violence. It's vast coverage that we already have. Once the report comes back in the present law, the judge must be convinced beyond a reasonable doubt that there was a serious personal injury offence, threats to others based on certain evidence—repetitive behaviour, aggressive behaviour—or evidence that the incident was of such a brutal nature.

Constitutionally, the deprivation of liberty will require proof beyond a reasonable doubt when that deprivation is to be for an indeterminate period of time. In fact, the burden at this stage is one element that saved the present articles from being declared unconstitutional in the past. Currently an application can be made at the time of sentencing, or even six months after sentencing, or even after that if new evidence comes to light. With the present law the way it is, we don't have to be letting dangerous offenders escape the claws of the law, if you will.

Currently, if the evidence is not enough to meet the dangerousness category, the individual may fall into the subcategory of long-term offender where there's substantial risk but a reasonable possibility of eventual control. This allows us to recuperate those we can when there's a real chance that we may do so.

A key sentencing principle in Canada is the use of less restrictive sanctions, when possible, to meet the goals of sentencing. That's why the case of Johnson in 2003 decided that when a judge is facing a dangerous offender hearing, he or she must look at whether the person could actually be a long-term offender, whether the long-term offender designation is enough. The present law gives us everything we need.

Part two of my representation is that the issues of the removal of judicial discretion and reversal of burdens are very troubling. Presently if a judge is convinced, by evidence, of dangerous offender status or long-term offender status, the code mandates that the judge “shall” give a certain sentence—indeterminate in the case of dangerous offender, others in the case of long-term. So there is no discretion to the sentence once the judge decides that you are a dangerous offender. But there is discretion; the judge does retain discretion in ordering a report to make an assessment, and the crown must prove the allegations they are making. In the new system, the judge will have to order the report, and the crown will have nothing to prove when the presumption applies.

Even though the crown has a burden to prove a certain number of things—the crown must prove, yes, the conviction and the elements of dangerousness as put out in the code—it should be noted that the crown has not been held to a burden of proving absolute hopelessness before someone is declared a dangerous offender. In some cases treatment was shown to be possible, but the person was still declared a dangerous offender. I'm referring to Pedden in British Columbia in 2005.

The crown right now can prove behaviour that would constitute dangerous offender behaviour without having to show the person had prior convictions. You can have someone determined a dangerous offender today based on the one incident he or she was convicted for.

The existing likelihood of future behaviour through the accused's failure to control his or her impulses is what the crown must prove. Brutal conduct can be one incident, and we saw that in the Ontario Court of Appeal in Langevin. Conduct has been interpreted to mean things such as sexually sadistic writings. Even writings could be considered conduct under the present law in some circumstances.

It is worth noting that removing judicial discretion and removing the burden on the crown would remove two important protections for individuals before the courts. Such a system is not likely to pass constitutional muster. The case of Lyons in 1987 upheld the present system because there was room for crown discretion and because the burdens were adequate to protect the rights of the person before the courts.

Speaking of judicial discretion, it's important for you, I think, as a group to realize that judges are not heard here. They don't come and speak to you because of their obligation of discretion

—obligation of discretion—

The application of sentencing principles requires proper weighing of a lot of different elements. Mandatory minimums in removing discretion, as we see here, tie the hands of judges and will keep them from coming to very just results.

My colleague spoke about the U.S. experience with mandatory minimums and sentences. They have in fact targeted the economically disadvantaged, the minorities, not to mention those with learning disabilities and lower education. We've already seen a disproportionate incarceration of first nations people in this country. Will this law exacerbate that situation?

I'll skip over speaking about the U.S. situation, but should anyone have questions, I have some comments on it.

Taking away the judicial discretion leaves a situation in which the threat of the dangerous offender application with an impossible burden for the accused person is going to put huge power into the hands of some crown prosecutors. Will it be used to force guilty pleas: “If you plead guilty, I won't make the application”? Is this a coercion that we want to see in our criminal justice system?

Those who are trapped will be the economically disadvantaged, minorities, and native offenders. How many times will the threat result in a plea to something else to avoid the application, and how good is that for us? We won't know what crime was actually committed. Before we even get to the dangerous offender application, lawyers will be trying to avoid the two-year mandatory minimum sentences on earlier offences, because every time you chalk up another two-year mandatory minimum, you're running the risk that the next time around your guy is going to be a dangerous offender. Will this just skew the entire system? It's a question that has to be asked.

Under the new system, there are 25 designated offences. They include assault, pointing a firearm, and what have you. Mandatory minimums may mean that many of these designated offences are going to become two-year offences, regardless of the objective seriousness of them. Is the youth with a drug problem who goes out with friends and commits two separate robberies really a dangerous offender because the two were committed in the six months of his life when he had a drug problem? Prior convictions for two designated offences with two two-year prison terms will trigger the crown's request for dangerous offender status.

Of the 12 primary designated offences—take a look at them--sexual assault was everything from a touch to something very serious. Discharging a firearm with intent has a mandatory minimum. We're looking at going back to old articles in the primary designated offences. You have all the old articles. How far back are we going to go? A conviction with two years twenty years ago is going to be conviction number one and a mandatory minimum a year ago is going to be number two, and then you're a dangerous offender. How real a portrait is that of the dangerousness of that person? The crown request will be triggered in these cases, and in these cases, for the primary designated offences, there is the reverse onus.

The new law includes that the reverse onus for primary designated offences and, arguably, that list of offences will be seen as arbitrary. Sexual assault is a broad category. Hostage-taking seems pretty dangerous, but hostage-taking is only a designated offence. Will that pass a constitutional test for arbitrariness? The arbitrariness will be key to the constitutional challenge.

Those in the primary designated category are the only ones to whom the first reverse onus is going to apply. There is a manifest unfairness that at the same dangerous offender hearing some people will benefit from the ordinary rules because the first reverse onus doesn't apply, no matter how violent and how disgusting their crime was, because they have no record. Yet other people will have a reverse onus and a burden that they can't possibly hope to meet in some circumstances. So under the operation of the presumption for the list of 12 selected offences, for no particular reason, because they're not even selected according to the fact that they're all punishable by the same maximum, this limited group of people, or offenders, if you will, would lose the benefit of the ordinary rules. The inequality will be key to the constitutional debate.

Mr. Chair, I will go rapidly now.

The justification and jurisprudence showing the need for reverse onus is exceptional. I have a number of comments to do with reverse onus and with what would pass constitutional muster, and I will keep them for questions from people here.

At the dangerous offender hearing, the reverse onus will raise other questions. The accused will attempt to prove he's not a danger. He'll bring experts. The experts will have interviewed him. The crown can't compel him. How is the crown going to contest that evidence? These are practical problems that no one has really properly considered.

Likewise, when there's a second reverse onus, and that is when the court finds that the accused is a dangerous offender, the court must decide in favour of indeterminate detention unless satisfied that something lesser would protect the public. This second reverse onus is also unnecessary, and we don't seem to have compelling evidence to show that dangerous offenders with priors are not being picked up by the system.

[Craig Jones]

Bill C-2 is sufficiently complex and has enormous implications for, among other things, the rate of incarceration; the overcrowding of existing prisons, including detention centres; the issue of double bunking for the safe management of inmate populations, including the consequences of an increase of inmates with mental disorders and substance abuse problems; the issue of overcrowding as it affects the working conditions of CSC staff; the accelerated transmission of blood-borne diseases among inmates and the spectre of multidrug-resistant tuberculosis; the already under-resourced range of treatment options, which are demonstrated to reduce recidivism; the expected termination of statutory release and its implications for the effective reintegration of offenders; the economic costs that will accrue from Bill C-2 combined with the national anti-drug strategy and the evidence-based opportunities thereby foregone; the asymmetric distribution of pain and suffering that will accompany implementation of Bill C-2 combined with the national anti-drug strategy, that is, more offenders from lower socio-economic circumstances, more aboriginal offenders, offenders with greater needs, including already overtaxed needs for mental health treatment, substance abuse, etc.; and finally, the implications of this punitive turn for the penal ecology of Canada’s criminal justice system, which has, until now, largely resisted the drift toward a meaner and more retributive Americanization of our correctional system.

Point number three is mandatory minimum sentences. It is no small irony that Bill C-2 seeks to extend the use of mandatory minimum sentences at precisely the same time as jurisdictions in the United States, notably Florida and California, are trying to extricate themselves from them. Mandatory minimums are sold to Canadians as part of a larger strategy to reduce crime. But as Professor Anthony Doob testified on December 6: “The best research on this is quite consistent. Mandatory minimum sentences will not reduce crime.”

Furthermore, Bill C-2 adds injury to insult by ignoring evidence-based approaches that do actually reduce crime and make communities safer.

Bill C-2, particularly in combination with the national anti-drug strategy, signals that the Government of Canada is prepared to tolerate even greater inequalities in the distribution of pain, denunciation, and punishment. It is as good as certain that mandatory minimum sentences will occasion disproportionate sentences for at least some offenders, likely those most marginalized and vulnerable to having their rights trampled. Canadians ought to be consulted on whether our current model of proportional sentencing should be reformed in this hasty and undemocratic manner, particularly if the reform offends against fundamental principles of distributive justice and targets those already most vulnerable to state-sanctioned discrimination.

I sense I'm running out of time, so I'm going to skip over the health consequences of greater incarceration and go directly to my conclusion.

In summation, I wish to reiterate what has long been known among criminologists, penologists, and historians of incarceration: prison is an expensive way to make people, most of whom come from disadvantaged and deprived social circumstances, worse than they already are. The evidence on this is by now so conclusive that it is no longer a point of contention. We ought not pretend that the last 200 years of research into prisons and their effects is irrelevant or ideologically inconvenient. Community-based programs are more effective and cost less. Community-based programs are not incubators of disease, cynicism, and despair as prisons are. They do not harden anti-social attitudes and behaviours as prisons do. Evidence-based community-based programs do not break apart families and poison the minds of young persons as prisons do. Prisons are the solution that is worse, in many cases, than the disease they are meant to treat. They ought to be the very last resort of a policy that aspires to democratic ideals of self-governance. If the government defies its own experts and the evidence base on prisons and proceeds down the path of growing Canada’s incarceration rate, it will bequeath to your children and grandchildren a curse that will be hundreds of years in the undoing.

Thank you.

[Clayton Pecknold, Co-Chair, Law Amendments Committee, Canadian Association of Chiefs of Police]

Good afternoon, Mr. Chair, honourable members. Thank you for the opportunity to speak to you today.

Many of you will know that the CACP appears before your committee and before the Senate on a wide range of bills. In fact, members of our association have appeared before this committee on several of the bills that now find themselves part of Bill C-2.

Before we comment on Bill C-2, we would reiterate a general comment that we have made before you on a previous occasion with respect to the complexity of criminal law and the public's general faith in the justice system. As with many aspects of the Criminal Code, the CACP believes quick fixes and band-aids are no longer sufficient.

We offer two quick points. First, we believe criminal law, including the law of sentencing, is in need of a sustained and comprehensive overhaul if the criminal justice system is to regain the eroding confidence of the public. Second, we believe much more could be done to give police the tools they need to detect and apprehend violent offenders. I will elaborate in a few moments.

As you know, the short title of Bill C-2 is the Tackling Violent Crime Act. We at the CACP join Parliament in saying that we must put an end to the violent crime we are seeing in our communities.

Before appearing here today, I had occasion to speak to my colleagues at the Vancouver police department, who are struggling with a wave of gun violence in their city. They, like all of us in the policing community, recognize that no one piece of legislation is going to solve what is a complex social problem underlying gang activity and the culture of violence it instills in our young people. A comprehensive, nationally focused, and locally resourced strategy is required. Much is being done, but much more can be done.

In terms of Bill C-2, the CACP supports the bill as one step of an overall crime reduction strategy. We believe Canadians are very concerned with the areas addressed in the bill. Gun violence, drugs, and the exploitation of our children rate high on the public's list of public safety concerns for very good reason.

We are also pleased to see Parliament help the courts keep those persons who pose a danger to our society in jail and away from the public. Examples of offenders reoffending while on judicial interim release, or escaping justice by fleeing to other jurisdictions in Canada, go far to erode the public's confidence and faith in the ability of the criminal justice system to protect them.

My colleague and I will be pleased to answer specific questions on Bill C-2, but before we do, permit us to elaborate on what we mean when we say that it is but one step in an overall strategy.

The CACP has several legislative priorities, and has, as one example, for some years now been advocating for modern tools to deal with modern crimes. Bill C-2 is directed in part to three important dangers to society: guns and gangs, child exploitation, and drugs. Your police struggle every day to stop the violence, disrupt the gangs, apprehend child sexual predators, and interdict drug dealers. These investigations are often made more difficult by the offender's success at exploiting the new technologies, such as digital communications and the Internet, to further their interests.

The CACP has been asking and pleading with government to modernize our investigative abilities for many years in this area, under the auspices of the lawful access initiative. As you know, the previous government introduced the Modernization of Investigative Techniques Act, which did not get passed before Parliament dissolved. We were pleased to see a private member's bill come forth reintroducing MITA and take that as a sign that all parliamentarians are concerned, as we are, with the eroding interception capabilities of your police.

With due respect to all, the time has come—it is past due—for action on this front. We ask you to act decisively on this matter, and act soon.

You need not be reminded, I'm sure, that it is your police who must find their way through an increasingly complex society using only those tools you allow them to keep the streets safe. For our part, the CACP will continue to offer you the voice of Canadian police leadership as you move forward with your work on this bill and hopefully the many others to come.

Thank you for the opportunity.

[Pierre-Paul Pichette, Co-Chair, Law Amendments Committee, Canadian Association of Chiefs of Police]

Thank you, Mr. Chair.

Ladies and gentlemen, honourable members of the committee, allow me to introduce myself: my name is Pierre-Paul Pichette and I am the assistant-director, chief of corporate services for the Montreal Urban Community Police. With me today is my colleague, Mr. Clayton Pecknold, who is the deputy chief for the Saanich police service in British Columbia. We are appearing before you today as representatives for the Canadian Association of Chiefs of Police, since we are the two co-chairs of the Law Amendments Committee for the organization. I would also like to take this opportunity to greet you on behalf of our president, Mr. Steven Chabot, deputy director general of the Sûreté du Québec.

The Canadian Association of Chiefs of Police represents the administrative arm of Canada's police forces. Ninety per cent of its members are directors, deputy directors or other senior managers from various Canadian police forces at the municipal, provincial and federal levels. The mandate of our mission is to effectively enforce provincial and federal laws and regulations to protect the Canadian public. We are therefore regularly called upon to give our position on legislative reform, and we always take part with enthusiasm in consultations with governments on the reform of the Criminal Code, much as we are doing today.

I will now ask my colleague Mr. Pecknold to comment on Bill C-2. Mr. Pecknold will speak in English, and I will then conclude in French.

[The Chair, Conservative, Rick Dykstra]

Mr. Lee has given me a pretty stern look, and a fair one, to say that we should get started.

Pursuant to the order of reference of Friday, October 26, 2007, Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts, I want to welcome everyone back to committee.

We will spend our time this afternoon dealing with witnesses from the Canadian Association of Chiefs of Police, the John Howard Society, and, as an individual, Isabel Schurman from the Faculty of Law.

I want to welcome all of our witnesses this afternoon. Just as a brief overview—I think most of you have actually been here before, so you know the rules, but let me just review them for everyone's sake—each of you has 10 minutes to make your presentation. We have a small timer up here, so once you get a little bit close to the end, I'll just give you an indication to wrap things up. We will then begin rounds of questioning. The first round will be seven minutes in length, and it will start with the Liberals, then go to the Bloc, then the NDP, then the Conservatives. Then we'll go to five-minute rounds from each of the parties.

I would like to indicate that we try to keep things as concise as possible to get in as many questions as possible, so if that's something that all members of the committee can do, and also witnesses, it would be much appreciated, and I think we'll have a solid afternoon.

With that, I would ask Mr. Pichette to begin.

Violent Crime Legislation

[Kevin Sorenson, Conservative, Crowfoot, AB]

Mr. Speaker, Canadians have told us they want to see our Conservative government's violent crime act move swiftly through the legislative process and finally become law.

Canadians elected us to move quickly and decisively to tackle crime and make our communities safer. They are fed up with a justice system that puts the rights of criminals ahead of the rights of law-abiding citizens.

Bill C-2, the violent crime act, would impose mandatory jail time for serious gun crime; create tougher bail rules when a gun is used to commit a crime; protect our youth by increasing the age of protection for sexual activity from 14 to 16 years; crack down on drug impaired driving; and ensure that high risk and dangerous offenders face tougher consequences and are monitored more closely after release to prevent them from offending again and again.

All the measures included in the legislation were studied in depth by Parliament in the last session and some were held up for over a year. Canadians believe this is unacceptable and expect prompt passage of these crucial measures.

Criminal Code

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Speaker, as a former breathalyzer technician and police officer, I am particularly interested in this most serious matter.

I am pleased to speak to Bill C-376 which proposes to create a new Criminal Code offence of driving a motor vehicle while having a blood alcohol content level in excess of 50 milligrams of alcohol per 100 millilitres of blood.

It does not propose simply to amend the Criminal Code to lower the blood alcohol content from the current 80 milligrams per 100 millilitres of blood, or .08 as it is commonly referred to.

The bill was debated for one hour in the first session of this Parliament. Every member who spoke to the bill and I am sure every member of the House agreed with the goal to reduce the death toll and injury on our highways caused by impaired drivers.

However, serious concerns regarding the mechanics of the bill, particularly its proposal to create a Criminal Code ticket and whether it would be used by police, were expressed by members.

For many years, law enforcement and prosecutors have complained about the complexities of the current impaired driving laws, the time needed to process the charge, the length of trials and the number of cases that are lost on technicalities. They have not asked for a lower blood alcohol content.

I am pleased that the government has responded to those concerns. Bill C-2, the tackling violent crime act, would simplify procedures and restrict defences to over .08 charges to those that have scientific validity. However, Bill C-2 is not a substitute for a complete review of the impaired driving provisions of the Criminal Code.

As members know, the Criminal Code has two separate and distinct drinking and driving criminal offences. Under section 253(a), it is a crime to drive while one's ability to drive is impaired by alcohol or a drug. Under section 253(b), it is an offence to drive while one's blood alcohol content exceeds .08. The over .08 offence was enacted in 1969, based on a seminal scientific study in Michigan showing that at that level the risk of collision increases exponentially for all drivers, regardless of age, driving experience and drinking experience. The Michigan study has been validated repeatedly.

Recent studies have concentrated on impairment at .05. I believe there is a scientific consensus that indicates a degradation in driving skills and increased risk of accident at that level.

One study concluded that compared with a driver at zero blood alcohol content, a driver at .05 had a 38% greater chance of being involved in a collision. A driver at .06 had a 63% higher risk and a driver at .07 had a 109% higher risk.

To date, Canada has chosen to address the problem of the driver who is over .05 but less than .08 through administrative measures imposed by provinces pursuant to their legislative authority to address licensing matters and matters of the Highway Traffic Act.

All provinces and territories except Quebec already have a roadside suspension for being over .05. I am pleased to say that Quebec has announced that it will soon be introducing a suspension at that level. These suspensions occur without any criminal charge being laid and, therefore, without a trial. They are an immediate and certain road safety measure.

The issue for the House, I submit, therefore, is whether to lower the permissible blood alcohol content to .05 or leave the low blood alcohol content driver to be dealt with by the province, at least until there has been a comprehensive review of impaired driving countermeasures.

The provinces work together through the Canadian Council of Motor Vehicle Transport Administrators or CCMTA, which has a subcommittee on impaired driving. The CCMTA reports to federal, provincial and territorial transport ministers. The CCMTA has endorsed a model of sanctions for driving while being over .05 that would include the recording of violations, longer roadside suspensions, a licence reinstatement fee of $150 to $300 and recording the violation for 10 years so that repeat violators can attract higher sanctions.

If the provinces enact increased sanctions at over .05 level for all drivers as recommended by the CCMTA, Criminal Code sanctions may not be needed. Certainly the provincial administrative sanctions will always be easier to process than a criminal charge. I seriously question whether a police officer faced with—

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, I thank the member for Kelowna—Lake Country for bringing this matter before the House of Commons.

All Canadians and all members of the House are concerned about the damage and the havoc that can be created with drinking and driving irresponsibly.

My own view is the bill does not really address the real core issues. It does not address the incidence of the types of accidents caused by chronic drinkers and drivers, those people who drink well in excess of .08. They put their lives and the lives of others in jeopardy by getting behind the wheel of a car. It creates havoc on our roads. These are the people, the repeat offenders, who we should address.

We already have some very good sanctions in place at the provincial and territory level. In nine out of ten provinces it is an offence to drive with a blood alcohol content level of .05 or over. The tenth province, the province of Quebec, announced its intention to introduce similar legislation this fall. The law allows for the immediate roadside suspension for anyone caught with a blood alcohol content level over .05. In Saskatchewan is .04.

The benefit of this approach is the sanctions can be handed out by police immediately without all the time and cost of a court proceeding. To criminalize these offences at the .08 or .05 level is unduly harsh. It will clog up our courts and prosecution. We already know about the dangers and the problems we have with Crown prosecutors plea bargaining because our courts are already filled with people who are committing particularly heinous crimes.

If it were justified, I would support it. However, in my view it is not supportable, given that the real problem is the chronic drinkers, those who reoffend, those who continuously take their lives and the lives of others in their hands.

How many times have we read in the paper about someone who has been charged with drinking and driving and may have been fined extensively. They get back on the road, drink and drive again and are given a slightly harsher penalty. Maybe their driver's licence is suspended. Then they drink and drive again, repeatedly. We need to deal with those people, not the casual drinker.

Every now and then people make a mistake. They might have two or three beers and suddenly find themselves with a criminal charge, which will be with them forever. This may impair their ability to advance in life and become a contributing member of society. I do not think that is warranted in this circumstance.

I am not arguing that drinking and driving irresponsibly is not a very serious matter; it is. That is why the provinces, rightly, have imposed pretty serious restrictions and sanctions at the provincial level.

I should also add that Bill C-2, which is currently before the House, also brings in tougher sanctions for repeat and chronic drinkers who drive. That is the way to deal with it. People who are chronic offenders could be put away for up to 10 years. Those who drink and drive while their licence is suspended should be treated particularly harshly, and Bill C-2 does that.

Bill C-2 also deals with the question of drug impaired driving. This is a reality we are facing as well. Many people today know police can pull people aside and do a breathalyzer test. They have the technology to detect if someone is over .05 or .08.

The reality is the technologies are not there to put in place a regime that recognizes people are taking drugs and driving. In fact, I think we are finding that people of all ages are saying they can beat the rap by having drugs or maybe a mixture of drugs and alcohol.

When the police pull them over, it is easy to tell what their alcohol content is through a breathalyzer, but it is very difficult to determine whether someone has ingested drugs. In fact, they might have had prescription drugs for some illness and given the technologies we have today, it is very difficult to determine whether someone has a prescribed drug or even an over the counter drug, or whether it is a mix of that plus marijuana, some cocaine, crack, heroin or whatever.

Bill C-2 attempts, and I think rightly, to put in a regime that deals with drug impaired drivers, but the reality is it is not a simple matter. We should also focus equal attention on drug impaired driving.

Some in this debate have said that by introducing the legislation before us, Bill C-376, we would be in line with other jurisdictions. With respect to those who said that, the facts say otherwise. A study was done of international drinking and driving laws in 77 comparable jurisdictions, sponsored by the Canada Safety Council, by an independent, respected organization. It found that only eight jurisdictions treat a .05 driving offence as a crime.

The study also has found that in most international jurisdictions a .05 driving is an administrative offence, not a criminal offence. I think the reason for that is for the reasons I outlined. We cannot slap people with criminal records for every crime that is committed otherwise we would be creating a lot havoc within our society.

The member who introduced the bill has the right intention and is motivated for the right reasons. However, I would draw him to the fact that the Canada Safety Council does not support the bill. It says that there is insufficient proof that the bill will have a positive impact on the number of serious accidents. This is a very serious negative evaluation of the bill from an organization that is well qualified and should know what would work and what would not.

While I think the intentions of the bill are good, and we are all concerned about this problem, Bill C-376 takes us in the wrong direction. What we need to focus on is the hard core drinkers, those who continually get in their cars, drink and drive or take drugs and drive. At the provincial level, we have seen a lot of activity with road checks, bringing people over and checking their blood level content. Now with this new regime for drug impaired driving there would be a similar approach.

The way I understand that would work, under Bill C-2, and I know we studied this at the Standing Committee on Justice, is there would be sort of a three-legged test. First, if people are driving in ways that looks like they are driving dangerously, police officers will pull them aside. They will ask them to do a simple test like walk a straight line. If they cannot do that, they will take a sample on-site of their breath or some other sample from their body and that will be checked by a technician. If that proves to be a problem, the sample will be put through a full laboratory test. If those three tests are there, if the person fails those three tests, they will be then charged with drug impaired driving.

That is a positive development in Bill C-2. It is the direction we should go. Our party supports that and also the tougher sanctions for chronic repeat offenders, those who drink and drive repeatedly. Those are the people we need to address.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, Mr. Chair.

Thanks also to all the witnesses who agreed to appear at such short notice, and, in spite of that, made presentations dealing with several very important matters.

Ms. Pate, I made a careful note of your request for the committee to go to the prisons where those designated dangerous offenders, both male and female, are incarcerated.

My next question is for the Canadian Council of Criminal Defence Lawyers. Given your presentation and your analysis of the provisions in Bill C-2 that deal with the dangerous offender system, I would like to know if your association considers the provisions to be constitutional, that is in conformity with the Canadian Charter of Rights and Freedoms.

[Jean Charbonneau, Expert witness, Association québécoise des avocats et avocates de la défense]

First, thank you for hearing us today. Our apologies for being late. Unfortunately, we were directed to another building; that is why we were late.

I am not a lawyer, but I am an expert witness. I am called upon to testify in impairment cases all the time. So I am well aware of BillC-2.

The problem I see with this bill is that we must first understand that when breathalyzers began to be used at the end of the 1960s, they were a compromise. A breathalyzer does not show alcohol levels directly. It uses statistics to establish a credible level of blood ethanol.

There are a number of problems linked to the use of a breathalyzer. Even under our present legislation, there are people who, at levels close to the legal limit, are not guilty. Because their physiology does not match the calibration of the machine, they would be found guilty without question if they were not able to present evidence to the contrary.

Even at present, generally speaking, defence counsel and expert witnesses are fighting to ensure that police forces are subject to checks and balances. Determining blood alcohol levels indirectly already creates prejudices in the minds of the public. Not only are we fighting that, but you will also notice that, in the Criminal Code, while it is a crime to drive with more than 80 mg of alcohol in the blood, there is nothing that requires police forces to maintain and check the reliability of the machines they use. The Alcohol Test Committee and the Canadian Society of Forensic Science have made recommendations, but we have realized that in a number of cases—we have just gone through one with the Montreal police—people did not care in the slightest.

If a bill like C-2 is passed, with no requirements and no mechanism to force police to make checks, because of a desire to put teeth into the bill, you have to realize that it will be just about impossible to contest. Scientifically, in my opinion, it will be impossible, for all practical purposes, for people who fail a breathalyzer test when they are arrested to show that the machine was not working. At most, you could show that its reliability was in question, but it is almost impossible. A blood test should be taken at the same time as the breath sample. This is very important to understand because we are not talking about a direct measurement. It does not measure the blood directly, it calculates.

I will stop there, because I am being told that the time is almost up. When breathalyzers were introduced, the Criminal Code even provided for keeping the sample, as is done with blood, so that the accused would be able to have objective evidence to the contrary. That was never put into effect, and it is certainly not provided for in Bill C-2.

[Richard Prihoda, Lawyer, Association québécoise des avocats et avocates de la défense]

I would like to thank the committee on behalf of the Association québécoise des avocats et avocates de la défense, and to express my own thanks, for giving us the opportunity to offer our point of view on certain parts of BillC-2.

Our association believes in the supremacy of the Constitution, in the rule of law, and in the separation of executive, legislative and judiciary powers. It believes in our justice system that is based on the presumption of innocence and that requires the state to establish guilt beyond a reasonable doubt, after a fair and equitable trial, before an independent and impartial judge who is knowledgeable of the law and of the realities of his community.

We do not have a great deal of time today to cover all the significant changes that Bill C-2 would bring about and that we would like to comment on. We have therefore prepared a short document that highlights some of our concerns. This document will be distributed in due course.

I now refer to the amendments that deal with mandatory minimum prison sentences. In a word, we are suggesting that you amend the Criminal Code to list the aggravating factors that would result in more severe punishments, and that you not deal with mandatory minimum sentences.

With regard to the amendments dealing with the age of consent to sexual activity, there seems to be a contradiction between, on the one hand, the Young Offenders' Act that requires everyone to be accountable for his or her actions from the age of 14, and, on the other, the fact that a person of the same age is not able to consent to a non-exploitative sexual act.

I would like to take some more time today to speak to you about the amendments dealing with conduct when a person is impaired by alcohol or drugs. Bill C-2 makes significant changes in this area. Presently, section 254 of the Criminal Code allows peace officers who have reasonable and probable grounds to believe that a person has committed an offence to require that person to provide a breath sample in an approved instrument. Furthermore, under section 258, the Crown can make certain legal presumptions to facilitate the prosecution's work. Persons arrested under section 254 must comply and must provide the required breath samples if the samples are collected in an approved instrument.

The Alcohol Test Committee recommends approved instruments to Parliament. This committee—and I will shortly provide you with documentation—also conducts exhaustive tests before recommending to Parliament that an instrument be approved. After these rigorous tests and as the result of the committee's recommendation, Parliament accepts an instrument. This same committee makes recommendations to police services and to provinces, who are responsible for maintaining the devices and for all the programs that have to do with breathalyzers such as training, the courses given to qualified technicians, and so on.

In Canada, laboratories of three kinds are responsible for advising provinces and police services on matters of forensic science. These are the RCMP laboratories that serve eight provinces, the laboratory in Ontario, and the forensic laboratory in Quebec. It is important to understand that programs are not uniform across Canada. Maintaining these devices remains the responsibility of police services.

In one recent case, we found that there was no maintenance program for the Intoxilyzer 5000C devices used by police in Montreal. They were purchased in 1996. They are repaired if they malfunction, but, if they do not, their performance is not checked.

That goes against the recommendations of the Alcohol Test Committee that advises Parliament. So, the Montreal police is not following the recommendations of the Alcohol Test Committee, nor those of the manufacturer, concerning the maintenance of the devices.

After my remarks, Mr. Jean Charbonneau will provide you with more explanation of the legal and technical considerations. Though the case is not over, the legal community in Montreal has concerns for natural justice when these devices are used.

If BillC-2is passed in its present form, the situation will be even worse, because it removes our ability to present evidence to the contrary, as we can today. The Supreme Court of Canada has held that, given that it is possible to present evidence to the contrary, the presumptions of the Criminal Code are reasonable.

Our position is that if the bill is passed in its present form, it will no longer be possible to present evidence to the contrary, and the presumptions will be almost impossible to contest. It is almost impossible for an accused to show that the device was not working properly on the day when he provided samples. We will then be in a situation where thousands of people will provide samples, because they have no other choice. There will be a presumption of guilt and it will be almost impossible to present evidence to the contrary if the bill is passed in its present form.

We may present evidence showing that the device was possibly not reliable, or that there were perhaps errors on the day when our client provided samples. But the Supreme Court of Canada's 2005 decision in the Boucher case defines evidence to the contrary. The definition does not include speculative evidence. We can show that the device is not reliable and that its results cannot be relied on today. But since this is not sufficient evidence to the contrary, we cannot present it, and we certainly will not be able to after Bill C-2 is passed.

Furthermore, the present situation...

[The Chair, Conservative, Rick Dykstra]

Pursuant to the order of reference of Friday, October 26, 2007, we are dealing with Bill C-2, an act to amend the Criminal Code and to make consequential amendments to other acts.

I first want to welcome all of our MPs back from a week in their ridings, and to a reinvigorated committee to continue our work on Bill C-2.

I welcome our witnesses who are here this morning. We certainly appreciate the efforts that you all have made. I know that this committee was formed in fairly short order, and we certainly appreciate the fact that you've been able to put time into your schedules to be able to join us here and present your perspective on the bill. We obviously have something to learn from that this morning.

I know that we've only been away for a week, but let me make a couple of gentle reminders in terms of timeframes. Each group has ten minutes to make their presentation, whether an individual or a group. It's up to you to divide your time. If you are dividing your time with your colleague, certainly that is your decision to make. It's your time to do so. I would just respectfully ask that if you keep an eye on me, I'll try to give you a warning when there's about a minute left in your presentation, so you know that you can work towards wrap-up.

The way the questions will move is the first round of questioning will begin with the Liberal Party for seven minutes. Each party will have a seven-minute allocation. Once we get into subsequent rounds, they'll be five-minute time-allocated question and answer sessions.

I again would ask if you could just keep a bit of an eye on me in terms of being able to make sure that we get as many questions in as possible and that we stay as close to our timeframes as we can.

With that, I would like to ask the Canadian Council of Criminal Defence Lawyers, Mr. Rady and Mr. Roitenberg, to please start.