Bill C-226 (Historical)

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.

Impaired Driving Act

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Mr. Speaker, I would first like to congratulate my colleague from Bellechasse—Les Etchemins—Lévis for this excellent bill.

I am pleased to be speaking in favour of it.

I have appreciated the opportunity to hear from the different members speaking to the bill already. It sounds like there is substantial consensus in this House to move the bill forward to the committee stage. I look forward to the continuing debate at that stage.

There are many provisions in the bill that address the significant problem of impaired driving in this country. I want to focus on one of the provisions, in particular, in my remarks today, one of the provisions that I think is the most transformative about the bill. It is the introduction of mandatory screening.

I know there has been some debate back and forth that I have had informally with members around what the provision means, in terms of public safety, as well as in terms of civil liberties. I am going to argue, today, that a policy of mandatory screening does not violate civil liberties. Frankly, even if it did, it would be justified on the basis of the lives that would be saved by requiring mandatory screening.

Just by way of brief introduction right now, of course, the way the law works is that people can be pulled over, they can be asked if they have been drinking, and they can be asked to take a Breathalyzer if an officer feels that there is some basis to believe that they have been drinking or may be impaired.

There are concerns that this requirement for there to be some kind of an indication of impairment beforehand reduces the deterrence factor, reduces the chances that someone will be caught. There are a number of bills that have been proposed to try to address this. There is a bill before Parliament that I think is an interesting measure, as well, that I am inclined to support if it goes part way, in terms of allowing the use of a passive detection device to determine if there is alcohol in the car and, on that basis, to conduct screening.

However, the simplest way of ensuring the greatest possible deterrence, of catching impaired drivers, is through a system of mandatory screening, which says that anybody who is pulled over can be asked to take a breath test and, on that basis, then an assessment can be made as to whether or not they are impaired.

This is clear, it is simple but, yes, it raises some debate around the question of civil liberties. I want to talk about the issues of civil liberties in the context of mandatory screening and, specifically, make three distinct arguments about the value of mandatory screening.

The first argument I want to highlight is that driving is not a right. The definition of civil liberties, and I looked this up on dictionary.com and I think it is pretty good, is that civil liberties are:

the freedom of a citizen to exercise customary rights, as of speech or assembly, without unwarranted or arbitrary interference by the government.

Civil liberties only exist when they are applied to activities that individuals have a fundamental right to.

Inferring some violation of civil liberties in the context of mandatory screening would be to infer that individuals have a right to drive, which, of course, they do not. I think other colleagues have already made the point that there are many requirements we have associated with driving already that would not be permissible if we inferred that there was some kind of a right to drive.

The argument that brings civil liberties into this particular discussion, the implied idea that there is a right to drive, actually has very dangerous implications for various other aspects of the way our public safety system works around driving.

There is not a right to drive. Inferring a right to drive creates problems and, insofar as there is not a right to drive, then it is reasonable to require, as a condition of driving, that individuals be willing to provide a breath sample. That is not a violation of their civil liberties, again, insofar as there is not a right to drive.

The second point I want to make is that the current system presents greater potential inconveniences to drivers than mandatory screening.

Mandatory screening is very clear. It is very predictable. Individuals know that they can be expected to blow and that at a check-stop, individuals will all then presumably be asked to blow, and it is a quick, it is a clear, it is a predictable process.

The current system is more unpredictable, where individuals are asked questions first and it varies depending on what inference the police officer may draw in that particular case. As much as some individuals may not want to have to blow, the inconvenience factor is, I would argue, lessened in a system of mandatory screening because there is a certainty, there is a predictability, there is a process in place that individuals can rely on, and it really maximizes the deterrence factor. Nobody is going to think they can talk their way out of it or that they can avoid being tested in this way, because there is a certainty there. Therefore, it maximizes deterrence and of course public safety.

The third point that I want to emphasize is that lives are very much at stake in this debate. In the last Parliament, the House of Commons Standing Committee on Justice and Human Rights studied this issue and recommended the implementation of mandatory screening. The reason it did so, in large part, is that countries which have implemented mandatory screening have witnessed a significant decrease in the number of recorded road deaths every year. Since impaired driving is, in fact, the leading cause of criminal death in Canada, this is particularly important.

We are talking about real lives saved and real lives affected. Part of why I wanted to speak to the bill, in particular, is that, while I was door knocking, I had a lengthy conversation with a family in my riding whose daughter was permanently disabled as a result of the actions of a drunk driver. Of course, we all know these things happen, but it brings it home to all of us in a particular way when we have the opportunity to speak to constituents who have had these kinds of experiences.

Simply knowing that a system of mandatory screening could prevent that kind of suffering, not in every case, perhaps, but for some families in the future, makes me feel very strongly about the importance of having a system of mandatory screening. To balance the potential theoretical concerns, but not really concerns, about civil liberties against the concrete idea of human life and happiness at stake here, we should err on the side of protecting human life and reducing suffering instead of this incorrect assertion of a procedural civil liberty.

In general, when we look at the balance of human life and protection of society versus rights, we have to think about the origin of rights. Rights have, in my view, two possible origins. One origin would be nature and the other would be custom. There are certain rights that come from the very nature of who and what we are, but there are other rights that are the result of custom and social agreement. We agree to accord certain rights to others on the basis of what is conducive to the happiness and good function of society, and generally speaking, though not in every case, our concept of civil liberties would fall into the concept of having their origins in custom as opposed to in nature.

We have the opportunity to describe and define the contours of these customary rights and I would argue that we should not seek to extend the ambit of customary rights in a way that leads to an increase in human suffering. The way we think about and describe rights that emanate not so much from nature but from custom should be with a view to what is good for society, what is good for human happiness and human flourishing. It would be perverse to come up with a doctrine of rights that we knew led to more human suffering, more loss of life, since the very purpose of rights should be with an orientation toward human flourishing.

These are what I see as the substantive arguments in favour of a system of mandatory screening. There is no such thing as a right to drive. Further, the creation of a right to drive creates additional risks to human life and human happiness. A system of mandatory screening provides additional benefits in terms of convenience and predictability for drivers. Also, fundamentally, lives are at stake. By understanding civil liberties as not precluding mandatory screening, Parliament can make a choice to significantly reduce the number of deaths associated with drunk driving.

That is our job first and foremost. Our job is to think about how we can save and protect lives, and the happiness and well-being of Canadians.

I congratulate my colleague on this excellent legislation. I look forward to supporting it.

[Darshan Singh Kang, Liberal, Calgary Skyview, AB]

Mr. Speaker, I want to congratulate and thank the hon. member for his commitment to ensuring that Canadians are kept safe and deterred from drinking and driving.

I too believe that we must continue to ensure that Canadians do not drink and drive while protecting them against having to experience what it is like to be injured or lose loved ones due to a drunk driver.

I am also a victim of drunk driving. I sympathize with other Canadians who have lost family and loved ones to drunk driving. In 1972, my father and four other family members and friends were killed by a drunk driver in India. My father was a young successful businessman, who to this day is remembered throughout the country. When he was killed, our family's future was thrown into uncertainty. Our grief was at times unbearable. I had lost one of the most important people in my life. I do not want any Canadian to have to experience this loss and pain. However, this legislation does not do much to address my concerns.

I agree that there needs to be more strategic enforcement and educational campaigns to make sure that we protect Canadians, their families, and friends, but our approach must be based on evidence or we will have done little to prevent future suffering. I am sure that the bill will succeed at one thing, which is that it would put too many Canadians in prison.

I recognize that the bill provides hope to some victims that it will prevent impaired driving. From what I know, the only thing that the bill will provide is hope. It will have little impact on the future prevention of impaired driving.

According to this legislation, the accused would face an automatic mandatory minimum sentence of 30 days imprisonment for a first offence, 120 days for a second offence, one year for a third offence, and two years for any subsequent offences. The bill outlines that these sentences would apply to anyone who is found to have operated a vehicle while impaired in any degree, by alcohol or a drug or a combination of both. The decision for a conviction teeters on the ability to prove a blood alcohol concentration that is equal to or exceeds 80 milligrams of alcohol in 100 millilitres of blood.

I will begin with why the bill is not the solution that we need to protect Canadians against the potentially traumatic outcomes from drinking and driving.

First, the bill proposes persecution of suspected impaired drivers by using mandatory minimum sentences. We must not forget that it is clearly stated in subsection 11(d), “Proceedings in criminal and penal matters” of the charter, that:

Any person charged with an offence has the right:

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

The mandatory minimums that Bill C-226 would impose will remove the ability of our judiciary to ensure that the accused is provided with a fair and public hearing by an independent tribunal. Instead, conclusive proof would be taken out of the hands of a judge, and all evidence for conviction will be replaced by outcomes of a breathalyzer and the peace officer or technician who is operating it.

The use of breathalyzers is known to have provided less than 100% proof of impaired driving. A 2011 study in British Columbia found that roadside breathalyzers were wrong in 14 out of 174 roadside suspensions. This would mean under the bill that these fourteen persons would have little recourse, as the device reading would be the only conclusive evidence needed to brand them instantly guilty.

Second, this legislation fails to ensure that the rights of Canadians are upheld according to the charter. The fact is that the Supreme Court of Canada has already ruled that mandatory minimums like those proposed here are unconstitutional and would endanger our justice system.

According to the decision of the Supreme Court of Canada in the case of R. v. Nur, on April 14, 2015, mandatory minimums were challenged under Section 12 of the charter, which states:

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

This is because using mandatory minimums will set the precedent for reasonably foreseeable applications in other cases unrelated to impaired driving that would result in cruel and unusual treatment or punishment.

We should be wary of mandatary minimums because, as the Supreme Court stated, “Imposing such a sentence would 'undermine society’s expectations of fairness in the administration of justice'”.

There is further evidence provided by the Canadian Department of Justice in its study titled “Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures” that mandatory minimums are ineffective specifically as a deterrent, especially against impaired driving.

The report states that:

Overall, the evidence in this area holds out more hope for vigorous law enforcement and the certainty of punishment than for tough sentences. Studies indicate that [mandatory minimums] and sanctions of increasing severity do not reduce recidivism rates or alcohol-related accidents.

The proposed use of mandatory minimums by this bill is only a Band-Aid solution that does not take into account the whole picture. Instead of helping Canadians, it would jeopardize the fundamental rights of everyone and do nothing to prevent future impaired driving or recidivism. We should be focusing on bringing impaired drivers to justice through more vigilant oversight and using the most effective means based on evidence.

Through the continued evaluation of legal and social approaches, along with educational campaigns to prevent impaired driving, we can continue to save lives while maintaining justice.

I speak in this House to ensure that we are doing our best for Canada and Canadians. Unfortunately, this bill falls short of our best. I ask my colleagues and fellow members of this House to continue to work together to create evidence-based laws that will bring impaired drivers to justice and ensure a safer future for all Canadians.

After the tragedy in our family in 1972, to this day, I struggle to understand why an individual gets behind the wheel after drinking, to cause enormous suffering for the family and friends of innocent victims. I stand with other Canadians who have had to suffer, but I can support this bill with amendments.

[The Deputy Speaker, Conservative, Bruce Stanton]

I invite the hon. member for Bellechasse—Les Etchemins—Lévis for his right of reply. The hon. member will have up to five minutes for his comments.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Mr. Speaker, the people who have listened to the debate over the past hour will surely be surprised, I dare say, by its constructive, consensus-oriented tenor. I would like to continue in the same vein by thanking my colleagues from the various political parties who have spoken.

First, as you know, I had the opportunity to work with my colleague from Durham in his riding. He delivered a moving personal account, but he also recognized, and we see it today, that it has become socially unacceptable to be intoxicated and get behind the wheel, and that it is important for us to take steps as a Parliament.

I would like to thank the former police chief of Toronto, the member for Scarborough Southwest, for having spoken brilliantly to the bill. It is certainly inspiring to have such a skilled and renowned chief of police of such a large force supporting the bill. I appreciate that, and I thank the member for that.

In addition, the member for Rimouski-Neigette—Témiscouata—Les Basques told us bluntly that he was nearly hit by an impaired driver. This shows the importance of improving the effectiveness of roadside spot checks. This is, in fact, one of three measures in the bill. The idea is to improve roadblocks through systematic testing, relieve pressure on the courts and introduce minimum sentences to reduce the incidence of accidents caused by impaired driving.

My colleague from Sherwood Park—Fort Saskatchewan eloquently demonstrated that those who have strong convictions that could be described as libertarian can support the bill, because people’s rights are protected. There is the constitutional opinion of Justice Hogg, but beyond that, as my colleague said, driving is a privilege that comes with responsibilities. That is what the bill is intended to ensure.

I thank the member for Richmond Hill, who told us how his father lost his life because of an accident involving a drunk driver. Clearly, there is a need.

I think that today we have shown that we can work together. There is still work to be done on the bill, I am aware of that. That is why I want the bill to go to committee for a clause-by-clause review and I want us to be able to discuss it constructively. There was a suggestion about including mandatory alcohol-ignition interlock devices. That would help people with certain addictions protect themselves. Those are things we can study in committee.

I would like to remind my Quebec colleague from Rimouski that there is already a bill in the House dealing with alcohol sensors. Clearly, other suggestions were made, but it is important to keep in mind that it is a private member’s bill that already covers a lot of territory.

I would simply like to express my appreciation to the members of Parliament for agreeing to study this further in committee. I would also like to thank the people who helped me prepare this bill: Minister MacKay at the time, the member for Langley—Aldergrove, the people who handle road safety in Quebec and elsewhere, Mothers Against Drunk Driving, Families for Justice, and the people of my riding for their initiatives.

I would like to thank the members for their statements, and I hope that we can continue to move forward in a constructive way to pass a law that will save lives in this country.

[The Deputy Speaker, Conservative, Bruce Stanton]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[The Deputy Speaker, Conservative, Bruce Stanton]

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Public Safety and National Security.

(Motion agreed to, bill read the second time and referred to a committee)