Bill C-73 (Historical)

Dangerous and Impaired Driving Act

An Act to amend the Criminal Code (offences in relation to conveyances) and the Criminal Records Act and to make consequential amendments to other Acts

This enactment amends the provisions of the Criminal Code that govern offences in relation to conveyances. The amendments, among other things,
(a) harmonize the prohibitions and penalties for offences in relation to the operation of conveyances;
(b) increase the penalties for repeat offences in relation to the operation of conveyances;
(c) modernize the procedures for determining whether a person’s ability to operate a conveyance is impaired by a drug, and for analyzing breath samples to determine a person’s blood alcohol concentration;
(d) provide for rules governing the disclosure of information with respect to the results of analyzing breath samples; and
(e) recognize that evaluating officers are experts in determining whether a person’s ability to operate a conveyance is impaired by a drug.
The enactment also amends the Criminal Records Act to remove the offences of impaired driving and failure or refusal to comply with a demand as exceptions to the offences that result in a record suspension ceasing to have effect.
Finally, the enactment makes consequential amendments to those Acts and to other Acts.

Criminal Code

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, it is a privilege to rise to speak to Bill C-46, the government's alcohol and drug-impaired driving legislation. I had the opportunity to study Bill C-46 at the justice committee. One thing was very clear, coming out of the justice committee and based upon the evidence from a number of witnesses. Law enforcement is not ready to implement aspects of Bill C-46 related to drug impairment in time for the government's arbitrary and rushed July 1, 2018, timeline to legalize marijuana.

Once Bill C-46 is passed, it will require that some 65,000 police officers across Canada get trained and understand Bill C-46. That will take time and it will be costly. We heard the need for some 2,000 drug recognition experts. At present, only 600 drug recognition experts are in Canada. In answer to a question I posed to Department of Public Safety and Emergency Preparedness officials at the justice committee, it appears that only approximately 100 more drug recognition experts will be trained by July 1, 2018.

There are issues surrounding per se limits for THC, whether these per se limits are appropriate and what the per se limits should be. The government has not addressed that yet. There are nine months until the July 1 rollout. There are serious questions about the correlation between THC levels and drug impairment. On the question of public awareness, the marijuana task force, as part of the public health approach that it took, called upon the government to launch an immediate and sustained public awareness campaign. Where is the campaign? It has not been sustained. It has not been fully rolled out. We are just nine months away.

Therefore, given these and other reasons, no wonder the law enforcement community has called upon the government to delay the legalization of marijuana beyond July 1, 2018. After all, law enforcement will not have the tools, resources, and time to deal with the multiplicity of issues that will arise from legalization. Quite frankly, it is really frustrating that notwithstanding that very resounding message, the government refuses to back down and is moving full steam ahead with legalization, even though law enforcement will not have the tools, will not have the resources, and will not have the time to keep our roads safe.

What will that mean for the health and safety of Canadians?

When legalization occurs, more and more Canadians are going to use marijuana. That is a fact. As a result, there will be more drug-impaired drivers. Without the tools, resources, and training to enforce the laws, including laws that would come onto the books once Bill C-46 is passed, it will mean more injuries, more deaths, and more carnage on our roads. The government will bear partial responsibility for those injuries, those deaths, and the carnage that is sure to ensue.

With respect to part 2 of Bill C-46, which deals with alcohol-impaired driving and makes a number of changes to the Criminal Code respecting alcohol-impaired driving, I congratulate the government for some of the measures it has introduced.

Bill C-46 would eliminate certain defences that have been abused by impaired drivers. It would increase the maximum penalty for impaired driving causing bodily harm from 10 years to 14 years. That is welcome. However, I am disappointed that Bill C-46 does not tackle the most serious offence related to impaired driving, and that is impaired driving causing death.

Bill C-46 does absolutely nothing to strengthen penalties for impaired driving causing death. One might say, if we look at the Criminal Code, the maximum sentence for impaired driving causing death is life behind bars. That sounds pretty good. It sounds appropriate that that should be the maximum penalty. The only difficulty is that very few individuals convicted of impaired driving causing death are sentenced to life behind bars. In fact, I am not aware of a single case. There may be one or two, but I am not aware of one and, if there are any cases, that is a rare exception to the rule. What we see instead are impaired drivers who get behind a 2,000-pound or 3,000-pound weapon and take the life of one or more human beings as a result of their choices to drink and drive, and they get off with a slap on the wrist.

There was a case in Saskatchewan involving a mother and her son who were killed by an impaired driver. The individual responsible got a $4,000 fine and not one day behind bars. There have been cases where individuals have walked free with as little as a $1,500 fine for taking the life of another human being. That is an absolute joke. It is fundamentally unfair and fundamentally unjust. It is why more than 100,000 Canadians have signed a petition calling for Parliament to act. It is why the families of victims who came before the justice committee called upon Parliament to take steps to move forward with mandatory sentences. It is why our previous Conservative government introduced Bill C-73, which would have provided for a six-year mandatory sentence for impaired drivers who kill. It is why I introduced an amendment to Bill C-46 at the justice committee to provide for a mandatory sentence of at least five years, which was the minimum sentence that the victims who appeared before our committee asked for.

Sadly, every single Liberal MP voted against that common-sense amendment. It is one thing to vote against an amendment, but they did not even try. They did not even put forward an alternative. They just shrugged their shoulders and accepted the status quo. The victims and their families deserve better from the government on Bill C-46.

I am hopeful that once the bill is passed through the House, which it inevitably will be given that we have a majority government, that the Senate can get to work to try to fix the bill and help ensure that the victims will finally have some justice.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Chair, I'll be splitting my time with Madam Boucher.

Thank you to the witnesses.

Mr. Lee, my first question is for you.

You stated in your testimony that you were encouraged by what you characterized as tougher penalties in Bill C-46, and that is true with regard to the current existing law. However, when we compare Bill C-46 with Bill C-73, which was introduced by the previous Conservative government, we actually see a step back when it comes to penalties for, really, the most serious offences involving impaired driving, the most serious of course being impaired driving causing death.

You may be familiar with Sheri Arsenault from Edmonton, whose son along with two others was killed in a motor vehicle accident by an impaired driver who was driving more than 200 kilometres an hour at the time and who admitted to repeatedly drinking and driving. She implored this committee to amend Bill C-46 to provide for a five-year mandatory minimum, which is actually one year less than in Bill C-73. Do you have any thoughts on that?

[Michael Spratt, Member, Partner, Abergel Goldstein and Partners LLP, Criminal Lawyers' Association]

Thank you.

My name is Michael Spratt. I'm a criminal defence lawyer. I practise here in Ottawa, and I'm here for the Criminal Lawyers' Association.

In typical defence lawyer fashion, I filed a written brief, and I'll have to ask for an extension of time so that this committee can consider it. It was sent in today, but I'm sure it will be translated and distributed to you, so I won't go into more depth about the organization. That's all in the written submission.

The Criminal Lawyers' Association supports legislation that's fair, modest, and constitutional. While we support the very important objectives of protecting society from the dangers of impaired driving, we're not able to support this bill in the current form, given some of the legal and constitutional problems with it.

Now, in my written submissions, you'll see that we fully adopt the written submissions of the Canadian Bar Association and the brief from the Barreau du Québec, which are available to the committee. There are matters in there that I'm not going to touch on orally or in my written submissions, but we fully agree with them.

I'd like to touch on three areas. The first is the new offence of operating a vehicle or conveyance and being impaired within two hours after operating it; the second area is the method of taking the samples and demanding samples, and the last area is the random breath testing.

I think a bit of history might be important. I'm sure this committee knows it better than me, but this bill, Bill C-46, very closely resembles a private member's bill introduced last year, Bill C-226. I would commend the committee to examine the testimony presented at the public safety committee on that bill, given the overlap.

Of course, Bill C-226 is virtually identical to a bill introduced by the former government, Bill C-73. The reason I bring up that history is that the public safety committee found, for Bill C-226, that the legal problems presented by the bill far outweighed the potential benefits that the bill could deliver. The committee was also not convinced that the majority of the measures in Bill C-226 were appropriate. Much of the same problems exist in this bill.

Now, the first of those problems is the new offence itself. Currently, as you know, it's an offence to operate a vehicle while impaired or over the legal limit. In Canada right now, it's not an offence to drink alcohol, to drive a car, or drink alcohol after you've driven a car. It's an offence to be impaired or over the limit while you're operating the vehicle. Unfortunately, the proposed new section 320.14 dramatically changes that, and dramatically shifts how impaired law is going to play out on our roads and in our courts. That section extends the prohibition to being over the legal limit within two hours after ceasing to operate the vehicle. That is designed to combat what is not really a problem—but the bill says it is—bolus and post-driving drinking.

I can tell you that even the litigators who specialize in impaired cases bring these defences very rarely, and they succeed on an even rarer basis. It's not a problem that is plaguing our courts, but the solution to that problem as proposed by this bill is very problematic. This section is overly expansive and, as I said, it comes with little benefit.

What we're going to see here are constitutional challenges to overbreadth, but, more importantly, constitutional challenges to a reversal of the burden of proof. Under this section, if someone goes to a wine tasting or a cocktail party, drives there with no blood alcohol level, tastes some wine or drinks some scotch, and then comes under police scrutiny for whatever reason, a breath sample is demanded and ultimately that person blows over the legal limit, then it's going to be incumbent on the accused to present evidence about their state of mind, to in effect testify under the second prong of the exception that they weren't operating while impaired, and to call evidence from a toxicologist to read back their consumption to the readings.

This is an unprecedented and very dangerous aspect: reversing the burden of proof. It's even more problematic when this bill requires that the accused present scientific or toxicology evidence. Of course, that puts this defence, this exception, this reversal of the burden, out of the reach of individuals who experience poverty or are even part of the middle class. The court system is already out of the reach of those people, and this only makes the problem worse. It's ironic that the bill reverses that burden and puts that burden on the accused person, at the same time eliminating that burden completely from the crown to call that sort of expert evidence.

The second problem here is in proposed section 320.28, regarding a police officer's reasonable grounds to believe that a person has operated a vehicle or the conveyance with an impairment to any degree under proposed paragraph 320.14(1)(b). Currently, the police officer needs to have the reasonable belief that the vehicle was operated in the last three hours, and of course, the rationale for that is apparent. When you do the tests on the person and when you take the breath samples from the person, you want to do that as close to the time of driving as possible so you can relate the two. With no time requirement here, police officers with reasonable and probable grounds can demand samples from an individual hours or even days after that individual operated a vehicle. It's even more absurd when that provision is combined with proposed subsection 320.31(4), the section that alleviates any burden on the crown to call scientific evidence if the samples are taken outside of two hours to read back.

I'll pause to say that calling of this scientific evidence adds virtually no time to a trial. It can be done through documents. It's often done by calling a witness on video, and defence counsel needs the leave of a court to cross-examine. So this isn't a provision that frustrates justice or impedes the crown in any way, but this new section, which eliminates the need to call a toxicologist and mathematically add up five milligrams of alcohol for every 30 minutes, is a problem, because if an officer demands a breath sample from somebody, say a day after they drove, and that person provides a sample and blows zero because they have no alcohol in their system at all, then through the operation of proposed section 320.31 and the read-back mean that the person is deemed to have blown 240 or deemed to have an alcohol concentration of 240 even though he blew zero a day after driving. It doesn't make any sense. I've had various people look at this, because it can't be right. But that seems to be the reading of it, and that's deeply problematic, and, I would wager—and we'll see if I'm right—unconstitutional.

Now, in the last two and a half minutes, I want to deal with what I think is the most important problem of this bill, and that is the random breath testing. Let's just cut to the chase here. There's nothing random and there will be nothing random with this breath testing. What we know now, from right here in Ottawa and the 2016 Ottawa police traffic data race collection program—arising out of a human rights complaint for racial profiling—in which the police collected race data about everyone they stopped for every traffic violation, is that if you're a visible minority or part of a marginalized group or living in an overpoliced area, you are stopped disproportionately compared to the rest of the population. In simple terms, if you're black, if you're Arab, if you're a visible minority, you get pulled over more often than a white person does. That study went on to find that those people actually were not committing offences at any higher rate than anyone else was; in fact, the rate was lower.

So when you put those things together—and this is what the Ontario Human Rights Commission has done—it means that visible minorities are pulled over by the police more often for no reason. That's what is going to happen here. We've seen it in the enforcement of the current marijuana laws, which disproportionately affect minorities. We've seen it with the carding and street checking programs, which disproportionately affect minorities. This is just legislative carding in a car. That's how it's going to play out.

Now, there has been some constitutional analysis, and I'm sure you'll point me to Professor Hogg's analysis. That analysis, in our opinion, fails to take into account the reality of how this is going to play out. We're talking about people who are already disproportionately stopped, who are taken out of their car, denied right to counsel, and sometimes handcuffed. Their movements are definitely controlled; they are detained, and their car is searched for weapons by the police. They can be questioned and they are searched. If that happens to you or me once in a lifetime, it might be a slight inconvenience. The charter analysis isn't going to look at you and me; it's going to look at the young black man who is stopped five, 10, 20 times. Go and read Desmond Cole's piece in Toronto Life about carding and the effect that has on someone. That's the analysis that will take place, so it's a big problem.

Imagine you are a young black father picking up your kid from school and you're pulled over and subjected to this testing for the fifth or sixth time. That is the analysis that will take place. We know that some of these impaired laws already on the books are saved by section 1. They violate the Constitution and are saved by section 1. When we add how this is going to play out on the ground and look at the realities of how it's going to play out, I wouldn't be as confident as Professor Hogg, as respected as he is, to say that it is going to pass a section 1 analysis.

I'd be pleased to answer any of your questions. Of course, there are more expansive comments in my written brief.

[Sheri Arsenault]

I hate to be negative, but no. What I saw when I studied the bill was that besides the mandatory being completely removed, it also reduced the punishments considerably for the first, second, and third time. When you are caught at a road check, say, they're leaving those exactly the same as in 2008, where they had gone up in Bill C-73 and Bill C-226. The only difference that they're making in this bill is in adding that $500 increment, depending on how much alcohol you're over limit. I think if you're almost double, you'll pay another $500.

In this day and age, I don't understand it.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you to the witnesses. Most especially, thank you to Ms. Arsenault for her powerful testimony.

We've had an opportunity to meet a number of times. It is difficult to imagine a more horrific set of circumstances than those that resulted in the death of your son and two others in 2011. Three young men who had bright futures ahead of them were taken away in an instant by an impaired driver. I know, coming from Edmonton, that incident really has had a lasting impact on our entire community and northern Alberta. I want to commend you for your advocacy. It takes a lot of courage in the face of such a tragedy to be able to come here and speak publicly about this important issue that obviously has forever changed your life and the life of your family. Thank you for that.

I want to express my concurrence with your recommendation that this legislation be amended to include a mandatory minimum sentence of five years for impaired driving causing death. That is actually one year less than the six years provided for in Bill C-73.

I was going through the Criminal Code and I noticed that there are at least 50 mandatory minimums currently operative in the Criminal Code. They include, among other things, a five-year mandatory minimum for discharging a firearm recklessly, which is very serious, but at the end of the day, no one is dead necessarily in that incident. Here we have impaired driving causing death, which would obviously seem to be more serious. I note in your written report that you quote the Minister of Justice in answer to a question in question period wherein she says that her government is not opposed to mandatory minimum sentences for the most serious of crimes.

Would you not say the fact that there is a noticeable absence of a mandatory minimum is inconsistent with that statement? The government in a lot of ways copied and pasted what was in Bill C-73 but then removed one of the most important provisions to hold those responsible accountable.

[Sheri Arsenault]

I'd like to begin with a video. They always say a picture is worth a thousand words.

[Video presentation]

I'd like to thank you for inviting me to speak to you on what to me is one of the most important decisions a government can make. I speak to you today not as a legal expert or an organization with vast resources, but as an ordinary citizen, a real victim, and a mother.

Thank you very much for watching that video. That video means a lot to me. It goes with my presentation. It's not only my heartbreaking story, but it's also the story meant to represent what four families go through every single day here in Canada.

On November 26, 2011, my young son Brad and his two good friends were violently killed by a drunk driver. Their fender mowed through my son's car from behind at well over 200 kilometres an hour in a 70 kilometres per hour zone. He drove through Bradley's little car. There was nothing left of my son. He had to be identified by his dental records.

The impaired driver was charged with three counts of impaired driving causing death, three counts of driving over .08, and three counts of manslaughter, for a total of nine charges. He was found guilty, convicted on all nine charges, and sentenced in August 2014 to an eight-year prison term.

Attaching manslaughter to this crime is extremely rare. My son's case was only the 13th time in Canada. The offender was eligible for parole on October 28, 2016. He became eligible for full parole in April 2017, which is only a fraction of his eight-year sentence.

The Canadian public has seen that sentences are already extremely low for impaired driving crimes causing death, and I strongly believe that we are deceiving Canadians with such a reduction of sentences. An eight-year sentence equates to 2.2. That's a mere fraction, considering the severity of the crime that resulted in the horrific death of three innocent young men. Most Canadians don't know that. They believe what they read in the newspapers or see on TV. Eight years, he went to jail for eight years. That's not how it's supposed to work.

It's very difficult for me to write or speak about my son Bradley. Every parent's worst nightmare is that knock on the door by that stranger in the uniform with his hat off.

I assume that you read my “new normal” in my written presentation. I am the mother of a murdered child and there is nothing normal about my life now. It's bad enough to lose your child through absolutely no fault of their own, but to lose your young son so horrifically is something beyond words.

The pain for my loss was in itself very difficult, and it took almost three years and 31 court-related appearances to get from the date of this tragedy to the date of sentencing. I knew that I could never bring my young son back, but I thought I could possibly do something positive that would prevent other mothers from going through a similar tragedy.

I hope everybody is able to read my written brief. My written brief is very thorough in explaining my strong arguments regarding mandatory minimums and deterrence. My focus is on impaired drivers who cause death.

As I see it, our existing situation is four to five deaths a day. We all know those stats. We all know almost 200 injured every day. I try to think why. I think those who know they shouldn't be driving imagine they will get home. The fact is, they most often do get home, and this only reinforces that behaviour.

The chances of getting caught are very low, and if they do get caught, the punishment is very lenient. That's why people who drive impaired think the risk is worth taking.

The probability of being charged if you are a driver who caused death is only 22%, and out of the 22% of people who get charged with impaired driving causing death, only 11% are convicted. I fell into that 11%. I'm considered lucky. I don't feel that lucky. I'll be honest with you. But 78% who cause death are never even charged. They walk free because of loopholes. The case is thrown out of court in the first five minutes. Sentences, on average, are between two and three years.

It seems our justice system perceives these tragedies as just that, an unfortunate tragedy or an accident. When you compare that with other crimes that cause death, it just doesn't make any sense to me. You would be hard pressed to find a Canadian who thinks that our sentences for drunk drivers who cause death are anywhere close to where they should be.

To me, it's very simple. The time does not fit the crime. Somewhere, somehow, accountability should play a part for such a serious crime, loss of life, and not only for the victims but for the general public.

I'll turn to Bill C-46 and what I see as deficient in this bill. What I find and what is most noteworthy to me is Bill C-46 contains most of the contents of former Bill C-73 and former Bill C-226 by filling in some of the loopholes, but it has completely removed the stiffer penalties for impaired drivers who cause death. It also reduces the punishments considerably for the first, second, third, and subsequent offences from what was proposed in these former bills. A $1,000 fine is considered a credit card fine in this day and age, and that's where this bill remains.

In Alberta, if you take one more fish than you're allowed or if you go fishing without a licence, the mandatory minimum is a $1,000 fine. It's the same for impaired drivers.

Essentially, this is the same legislation as our existing legislation from 2008, Bill C-13 regarding impaired drivers who cause death. Shouldn't the first instance be harsh enough so there is no second and third and fourth and until possibly a death occurs?

Bill C-46 does add a small increase depending on your blood alcohol, a raise of $500, and they did add in mandatory breath testing. On random breath testing, I recognize that there is a 20% reduction in deaths quoted by MADD and Dr. Solomon regarding other countries, but this is over a very long period of time, 10 to 20 years. I would suggest that there is more to it than just the component of random breath testing. To me, there are many sides to this coin and over all those years there have to be many other variables included that have factored in.

I would like to know what the sentences are for drunk drivers who cause death in these countries. I believe other variables over such a long period of time such as cultural change really factor in too. With the legalization of marijuana, is this government prepared to give our police forces the resources they need? How will it affect the civil liberties? How will it affect our already overflowing courtrooms? These are the questions that I wonder about.

I will tell you random breath testing would not have helped in many cases that I know. It would play no part to me in hard-core drinkers. The offender who killed my son and his two friends admitted in his parole hearing he drove drunk over 300 times in a five-year period. He drove once or twice a week. When he killed my son and his two friends, he was considered a first-time offender. First time caught is what I call that, and most hard-core ones are like him.

We can't expect random breath testing to be the only answer. We can't assume our police will catch everyone. In 2012, only 5% of impaired drivers who were caught tested at .08, but 64% of those tested at double or more, and those are the ones who kill. There is no certainty or severity in this bill to recognize loss of life or to deter others.

Overall, Bill C-46 is considered to be very deficient in changing the behaviours of hard-core, habitual impaired drivers. It would not significantly reduce deaths, at least not until there's a cultural change, and that could take decades. This bill does not recognize causing one or multiple deaths as a serious crime.

Because I know my time is almost up, I'll speak briefly on mandatory minimum sentences.

Five-year mandatory minimum sentences would greatly strengthen the deterrence goals in sentencing. It would provide a level playing field for judges, prosecutors, and defence lawyers, while still leaving a wide area of discretion between minimum and maximum for consideration, such as mitigating and aggravating factors, rehab, etc. A five-year mandatory minimum sentence would not be considered too severe or cruel, considering parole and statutory release dates. Sentences for impaired driving causing death would be commensurate with other serious offences, so it would not be viewed as an accident or an unfortunate tragedy.

On deterrence, the five-year mandatory minimum sentence for impaired drivers causing death is needed, because I believe it would provide a strong general deterrent example to the public that saving the lives of our loved ones is significant, and both the certainty and the severity of the punishment are effective in deterring crime. Deterrence is critical.

Finally, we all know that impaired driving is the number one cause of criminal deaths in Canada: four a day. A car is a deadly weapon. Safety is a non-partisan issue and protecting Canadians should be our government's priority.

On June 16, 2015, the day that Bill C-73 was introduced, the former justice minister, the Honourable Peter MacKay, sat me down in a private office here in Ottawa, looked me in the eye, assured me he did not anticipate much opposition to this legislation, no matter who formed government in the fall, and said, “It's a good bill, Sheri.”

I was very optimistic when the new government was formed in 2015. I wrote to all 184 Liberal MPs in January 2016 by email and I hand-delivered a letter. I even blogged my optimism on my website. I have this letter and my blog to hand out. I received six replies. Truthfully, that alone was heartbreaking.

To me, it's inconceivable that impaired driving causing death is not taken more seriously when it comes to punishment. I ask that you review Bill C-46 with an open mind and with a particular reflection on the impacts: the deaths, the injuries, the victim impacts, the costs on our society, and the respecting of Canadians' clear demands for harsher penalties. I strongly recommend that the committee support an amendment for the reinstatement of the mandatory minimum sentence for impaired drivers who cause death, as was provided in Bill C-73 and Bill C-226. We are all just sitting ducks, every one of us here, including our children and our friends. We are candidates for the next horrific death at the hands of an impaired driver. This is 2017, and it's a choice. In fact, it's wilful.

Sadly, I feel like a nobody. Every day I wake up with the realization my son is gone and it seems that victims don't matter. We have no accountability, no justice, and no deterrence.

I'll close with the hope that special attention be paid to the words of the late Arnold Chan, MP for Scarborough—Agincourt, who stated that all MPs should forget their ideologies and work together to get things done for Canadians.

Thank you very much.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I want to thank the witnesses.

Ms. Kaulius, certainly you have my condolences on your tragic loss. All members of the committee certainly feel for you and your pain. Unfortunately, there are far too many mothers and fathers, brothers and sisters, friends and neighbours who have loved ones who have needlessly died or been seriously injured at the hands of an impaired driver. It is why to some degree in this big bill, a complex bill, there are some good aspects, although there are some areas that I have some concern with. I will make one observation, which is that I do believe that when you compare Bill C-73 and Bill C-226 and this legislation, there really is a considerable watering down, in terms of penalties particularly, with respect to mandatory minimums.

While we talk about sentencing and sentencing principles, two very important sentencing principles involve denunciation and protection. Certainly, that is relevant when we're talking, as you say, about a very small number of individuals who are hard-core impaired drivers.

I was wondering if you might want to speak to that. Then I will have a question for Professor Hogg.

Public Safety and National Security

[Michel Picard, Liberal, Montarville, QC]

Madam Speaker, since I am the one who moved the motion before the Standing Committee on Public Safety and National Security recommending that the House not continue the study of Bill C-226, I would like to submit my arguments to the House out of respect for my colleague, the member for Bellechasse—Les Etchemins—Lévis, and to inform the House of the debate that took place in committee.

Driving while under the influence of either drugs or alcohol is a serious problem. Road crash victims and public safety officers need our support. The provisions on impaired driving are the most frequently challenged provisions of the Criminal Code. We therefore need a robust and comprehensive plan to strike a balance between public safety and the Canadian Charter of Rights and Freedoms.

The intent of Bill C-226 is very commendable. However, the bill's legal problems heavily outweigh its potential benefits. I want to talk about three problems with this bill.

First, there was the minimum sentences. The only group of witnesses who supports this measure in the bill is the group that helped the hon. member draft it. The other group that contributed to drafting the bill, Mothers Against Drunk Driving, testified against minimum sentences during review in committee. I would like to quote what some of the witnesses had to say about minimum sentences.

Andrew Murie, Chief Executive Officer at the National Office of Mothers Against Drunk Driving said:

We also base our whole organization on evidence and policy. We can't find any deterrent effect for minimum mandatory penalties. That's one. The other issue is that in our legal analysis we don't believe it would withstand a charter challenge.

Michael Spratt, from the Criminal Lawyers' Association, said, “there are sections of the bill that are unquestionably unconstitutional”.

Abby Deshman, from the Canadian Civil Liberties Association, said the following:

First, simply put, mandatory minimum sentences do not work. They are ineffective and unjust. Decades of research has clearly shown that stiffer penalties do not deter crime.

Lastly, Micheal Vonn, from the British Columbia Civil Liberties Association, who was quoted by members across the way, said the following:

While failing to provide a benefit in deterrence, mandatory minimums create significant risk of harm. These include excessively punitive and unfair sentences....

The second problem is random breath testing, the centrepiece of this bill. There are two problems with this measure. We have no clear sense of what good it would do, and it, too, presents a constitutional risk. In most places where random breath testing has been introduced, there were few or no legislative measures to combat drunk driving beforehand. That was the case in Australia and Ireland, two countries that are mentioned frequently in random breath testing studies.

Here in Canada, we already have a system in place to combat drunk driving. We have all been stopped at roadblocks, and there is a legal framework in place for the use of Breathalyzers. That is why studies of the benefits of random breath testing are not really valid in the Canadian context. We do not know if this bill will have the intended effect because there are no studies that look into implementing random testing in places that already have measures to combat drunk driving.

In addition, what we need to remember about the studies in Australia and Ireland and the success of random breath testing is that it must be paired with a major education and awareness campaign. Unfortunately, there is nothing in the bill to address education and awareness.

One of the constitutional problems related to random breath testing is that it is not truly random. It is being referred to as “random” only because the word appears in one of the bill's headings. That same mistake was made in the Australian legislation, and we need to avoid repeating it here in Canada.

In fact, under the proposed system, police officers would have the power to stop anyone on the road and subject them to testing. I have a great deal of respect for our law enforcement bodies, but near-absolute power such as this only invites abuse. We need to find a real solution, testing that really would be random. For instance, one out of every ten vehicles could be selected, or a binary light system could be used that would translate into a truly random, and also potentially more dissuasive, measure.

Lastly, I want to comment on support for victims. The third reason we recommend not sending this bill to committee is that it contains nothing for victims.

ôWe heard one truly heartbreaking testimony during the course of our study. I want to thank Sheri Arsenault and Markita Kaulius from Families for Justice and Patricia Hynes-Coates from Mothers Against Drunk Driving, who testified in committee. All three lost people near and dear to them to traffic accidents.

Ms. Arsenault, director of the Alberta chapter of Families for Justice, said:

Someone over there said that victims are given so little consideration, and that is very true. Offenders have every right in the world. They have a right to an expert defence. They have a right to appeal. The victim has one right. My one right is to prepare a victim impact statement and present it.

My colleague from Saint-Léonard—Saint-Michel has very personal experience with this. I would like to take this moment to commend his daughters who, on behalf of the Government of Quebec, chair public consultations on road safety. Unfortunately, there is nothing in the bill to help the victims. I think it would have been useful to include measures against the phenomena of victimization during court testimony, for example.

In closing, since it was introduced as a private member's bill, it was not subject to the Department of Justice's examination under the Department of Justice Act in order to determine if it is consistent with the charter. The members of the Standing Committee on Public Safety and National Security would have liked to have had the chance to read the opinion on the constitutionality of Bill C-73, the version of the bill introduced when the member for Bellechasse—Les Etchemins—Lévis was still the minister, but we were not able to access it.

Furthermore, with the exception of random breath testing, representatives of MADD told the committee that even if all these measures were found to be valid under the Canadian Charter of Rights and Freedoms, they would not have much of an impact on impaired driving and the resulting collisions, deaths, and injuries.

For all these reasons, I encourage the members to support the committee's report and not proceed further with the study of this bill.

Nevertheless, I would like to draw members' attention to one part of the report that we tabled. Even though we are proposing not to proceed with the study of Bill C-226, we recommend that the government introduce solid legislative measures in order to reduce the prevalence of impaired driving as quickly as possible.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

We are also shocked by the fact that these people are losing their lives under such circumstances. Unfortunately, we will have to maintain our disagreement about the minimum sentences. That being said, there is Bill C-73, which is a sort of precursor to your bill and was introduced by your government in the previous Parliament.

At the time, one of my Liberal colleagues put a question to the officials from the Department of Justice appearing before the committee about whether there were legal opinions on the constitutionality of the bill.

The question wasn't asked to express agreement or disagreement. You mentioned the slowness of the system on some occasions and the difficulty of being caught in it.

Challenging the constitutionality of the bill may delay its implementation. I think all of us have an objective to find a way to adopt policies that protect the population while being constitutional.

Given that you were in power at the time, are you able to complete what hasn't been possible during this period or provide us with your own opinion on the constitutionality of the bill?

[Greg Yost]

I would not say that, as this is not our bill and this provision was not part of Bill C-73.

The sponsor of the bill, Mr. Blaney, followed the model used in Australia, where testing is random and nearly without any restrictions. I found only one restriction in the Australian piece of legislation, and it was the requirement that the peace officer must be in uniform.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

With respect to that Supreme Court case that you've referenced, I understand from Bill C-73 and the information the department raised publicly that the bill was to get at the wave of applications and the increased court time that occurred in the wake of that Supreme Court decision.

Do we have any numbers to justify that wave of applications? Was it a sustained wave? What are we looking at in terms of numbers, and what evidence do we have?

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I have that information. Thanks very much.

I understand, from the material we have from the Library of Parliament, that the conviction rate for impaired driving is 84%. Sorry, this is from Juristat 2011. It is higher than the general conviction rate of 64%.

Are we looking for a problem to fix here with respect to getting rid of the bolus defence, getting rid of the intervening drinking defence, and the other procedural changes? Again, with Bill C-73, you would have more intimate knowledge of this, without specific reference to Bill C-226. Are we aiming for a much higher conviction rate with these changes? Have the courts suggested these changes are necessary to improve the conviction rate?

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Okay. In preparing Bill C-73, presumably there was a department rationale, which that you haven't provided. Obviously, it is now a private member's piece of legislation, so there was no rationale, and there was no opening statement today. I would ask for any rationale, any briefing documents, reports, or any material prepared by the department in support of Bill C-73 that would be relevant to this committee in its study of almost identical legislation, Bill C-226.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Can you provide a copy of all charter compliance opinions on Bill C-73 to this committee?

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

My first question picks up on what Mr. Mendicino, Mr. Miller, and Mr. Dubé said about the constitutionality. This bill is based on Bill C-73, which was drafted by the justice department. Do you have a charter compliance opinion related to Bill C-73 that you could provide to this committee?

[Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice]

There will undoubtedly be a constitutional challenge to any higher mandatory minimum penalties.

I think it would be fair to say that the bill introduces a higher mandatory minimum penalty for a fourth offence by someone reconvicted of impaired driving. It also introduces higher mandatory minimum penalties when you proceed on indictment. There are also a number of changes for the mandatory minimum penalties coming in for causing bodily harm and causing death offences, and they're extended beyond the impaired driving to dangerous driving and other offences. There are actually a large number of new mandatory minimum penalties in the bill.

We are, of course, aware of Supreme Court jurisprudence. The people who supported higher mandatory minimum penalties in the past considered that a gradation—going first, second, third, starting at a low level of $1,000 fine, and working towards a one-year minimum on a fourth offence—would be defensible.

I'm not going to say it would be upheld, but it would be defensible, and the same would be true if it were extended to dangerous driving and other offences. That was the reasoning behind that, which I'm sure you realize was the case in the previous government's Bill C-73.

Dangerous and Impaired Driving Act

[Peter MacKay, Conservative, Minister of Justice and Attorney General of Canada]

moved for leave to introduce Bill C-73, An Act to amend the Criminal Code (offences in relation to conveyances) and the Criminal Records Act and to make consequential amendments to other Acts.

(Motions deemed adopted, bill read the first time and printed)