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

Sponsor

Steven Blaney  Conservative

Introduced as a private member’s bill. (These don’t often become law.)

Status

Dead, as of May 3, 2017

Subscribe to a feed (what's a feed?) of speeches and votes in the House related to Bill C-226.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

May 3, 2017 Passed That the Eighth Report of the Standing Committee on Public Safety and National Security (recommendation not to proceed further with Bill C-226, 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), presented on Thursday, March 9, 2017, be concurred in.

Criminal CodeGovernment Orders

October 24th, 2017 / 3:55 p.m.
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Liberal

Anthony Housefather Liberal Mount Royal, QC

Mr. Speaker, a number of Conservative members today have expressed concern about mandatory screening and cited the Canadian Bar Association's brief. We at the committee heard from multiple witnesses who said it was indeed constitutional. The Conservative Party supported the recent private member's bill of the hon. member for Bellechasse—Les Etchemins—Lévis, Bill C-226, which included mandatory screening. I am wondering why that position has changed.

Criminal CodeGovernment Orders

October 24th, 2017 / 3:40 p.m.
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Conservative

Larry Miller Conservative Bruce—Grey—Owen Sound, ON

Mr. Speaker, it is a pleasure to rise today in the House to speak to Bill C-46. I want to commend my colleague for her great speech and her responses to the questions she received.

As everyone knows, Bill C-46, an act to amend the Criminal Code (offences relating to conveyances), is a piece of legislation I have quite a number of concerns about.

I would like to echo a comment I have been hearing from a number of my constituents in Bruce—Grey—Owen Sound. It is that the government's arbitrary and self-imposed deadline for marijuana legalization needs to be abandoned. Many find it reckless on the government's part to be moving at such a rapid speed on a very sensitive issue. There are many unanswered questions when it comes to the legalization of marijuana, many of which deal with the topic at hand in Bill C-46, impaired driving.

I want to point out that if a person is impaired and is going to drive, it does not matter whether it is alcohol or whatever. A lot of people think that someone who is impaired must have been drinking. No. The use of marijuana or any other drug impairs a person. Anyone impaired like that should not be driving. These concerns, of course, are valid.

Canadians are looking south of the border at states like Colorado and are seeing an immense increase in the number of traffic deaths attributed to the use of marijuana. I would like to present the House with some statistics from Colorado on marijuana-related traffic deaths.

Marijuana-related traffic deaths have increased 48%, in the three-year average, since Colorado legalized recreational marijuana. In the year following legalization, marijuana-related traffic deaths increased 62%, from 71 to 115 persons.

In 2009, before legalization, marijuana-related traffic deaths in Colorado involving operators testing positive for marijuana represented 10% of all traffic fatalities. By 2015, after legalization, that number had doubled to 21%. There has been a 67% increase in the number of operators testing positive for marijuana involved in fatal accidents since recreational marijuana was legalized in 2013.

Therefore, we can see that Canadians have a legitimate reason to be concerned about how the legalization of marijuana will affect impaired driving in Canada. Canadians understand how important it is for the government to take its time and leave no stone unturned when it comes to ensuring that we are prepared as much as possible for when legalization becomes a reality.

We all know that the government promised to legalize marijuana. Whether one agrees with it or not, the government said that. However, I think it is obvious, from all the experts and from the observations made by members in this House, that the government is not ready.

Sometimes we have goals that we hope can happen at a certain time. Sometimes we have to just sit back and say that the right thing to do is delay it a bit and do it right. That is where I am coming from. This includes ensuring that police have the right tools and other resources to do their jobs and the proper training to identify the presence of marijuana use at the roadside. This should also be complemented by a public awareness campaign to educate Canadians about the dangers of marijuana use and driving.

The key question is about readiness, as I said. Will police agencies be ready when the time comes? Police themselves say that the answer is no. The July 1, 2018, deadline is way too soon. No number of legislative initiatives like Bill C-46 will be able to prepare the police for when marijuana becomes legal in July next year. The Standing Committee on Justice and Human Rights heard this loud and clear when the Canadian Association of Chiefs of Police appeared during its study of the legislation.

Here is what Mario Harel, president of the Canadian Association of Chiefs of Police, had to say about the readiness of police forces across Canada in terms of resources and training.

He said:

While funding has been announced, details regarding how the funding will be allocated through the provinces and into the municipal police services' hands remain unclear. We need that to meet the training and implementation objectives. We clearly require many more officers trained in standard field sobriety testing and as drug recognition experts. Quite frankly, the capacity currently is not there to deliver the amount of training required.

Furthermore, police forces across Canada, including the RCMP, are still in the process of determining the best way forward when it comes to screening devices for roadside tests. Again, I will cite the testimony of Mr. Harel:

Standards for oral fluid drug screening devices are being developed.

He said, “being developed.” They are not there yet. Mr. Harel continued:

Devices are yet to be screened against standards approved by the Attorney General of Canada and made available to law enforcement to allow for implementation and training.

We can see that there is still a lot of work to be done to ensure that our police forces have the tools and training they need to be ready to keep our roads safe from impaired drivers.

It is also vitally important that drug screening devices respect the rights and freedoms of Canadians. This leads me to another aspect of the bill that I have a great deal of concern about, and that is mandatory alcohol screening. Proposed subsection 320.27(2) of Bill C-46 would go further than current Canadian law and would allow a police officer with an approved screening device to demand that a driver provide a sample, whether a breath test or another kind of sample, without any grounds whatsoever.

Recently, the House rejected Bill C-226, which created the same type of conditions. In Bill C-226, this was known as random breath testing. Bill C-46 would essentially recreate this practice. I had a great deal of concern about random breath testing with Bill C-226, and that concern remains with Bill C-46.

The Canadian Bar Association said this about the reincarnation of random breath testing:

The revised title does not change its essence and it remains a random test that can be administered without any grounds. Police now must have a reasonable suspicion that the person has alcohol in their system before making a demand, and even that is a low threshold.

Under Bill C-46, there would not even be a need for an officer to have any suspicion of the presence of alcohol. He or she could simply demand that a sample be provided. This runs counter to the Charter of Rights and Freedoms and could very well make this bill unconstitutional.

This provision could potentially create difficult conditions for some minority groups. I have heard of a number of cases where first nations groups and African Americans, of course, south of the border, have been forced to provide samples without reasonable grounds. These types of provisions only encourage an increase in these types of situations.

We can all go back a number of years, to a remote northern native community in The Pas, Manitoba, I believe. I have a lot of respect for police, and most policemen and policewomen have the highest integrity, but in this community, there were a couple of officers who had a disdain for native people in some ways. They would pick up intoxicated natives and take them to the edge of town, and it was only after someone froze to death in a snowbank that the issue was brought out. The reason I mention this case is that if we allowed random breath testing, it would open the door for abuse like that, where the wrong kind of officer or officers could target communities. That is the last thing we want. Again, it goes against the Charter of Rights and Freedoms. Therefore, I stand with the Canadian Bar Association when it recommends that this section be deleted from the bill altogether.

With that, I will conclude my remarks by stating that I strongly encourage the government to slow down and re-evaluate this bill. Slowing down and doing it right is not a bad thing. It is not about saving face or whatever. It should just do the right thing. We want to make sure that police have the tools and training they need and that we are protecting the rights and freedoms of Canadians. With that, I am glad to take questions.

Criminal CodeGovernment Orders

October 24th, 2017 / 10:35 a.m.
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Liberal

Anthony Housefather Liberal Mount Royal, QC

Madam Speaker, I am very pleased to rise in the House today to speak in favour of Bill C-46. As chair of the Standing Committee on Justice and Human Rights, I want to thank my colleagues from all the parties who helped come up with 15 amendments, which were adopted by the committee. I believe those amendments will improve the bill.

It was a great pleasure, as always, to work with members of all parties on this issue. In coming up with amendments, our committee made productive contributions toward improving the bill before us.

I strongly agree with Bill C-46. The goal of the bill is to reduce the number of alcohol and drug-related offences on our roads. Too many Canadians die, too many Canadians are injured, too many families across the country are hurt every year because of impaired driving accidents. The crashes that ensue, because someone has consumed alcohol or drugs and taken to the road, are not acceptable under any circumstances.

If I were starting from scratch and writing alcohol-related legislation, there would be no tolerance whatsoever for anyone who is caught driving with alcohol or drugs in his or her system. Nobody can drive safely when marijuana or other drugs have been consumed, no matter how little. No one can drive safely when alcohol has been consumed, no matter how little.

It is true that due to the constraints of our testing, we cannot test at certain levels, which means we have to set per se limits. We need to have certain thresholds which one cannot pass in order to create an offence, in addition to when an officer suspects impairment. From my point of view, no Canadian should be driving if he or she has consumed drugs or alcohol.

I would like to talk about the two of the most contentious issues related to this legislation. Our committee held extended hearings. We sat for many hours over a period of two weeks and listened to witnesses from across the spectrum. The two areas about which I heard the most concern were mandatory screening and minimum mandatory sentences.

The constitutionality of mandatory screening was questioned, and I want to go back to the recent speech made by my colleague from Lethbridge. I thought it was very interesting to hear her question the constitutionality of minimum mandatory screening. I want to point out that she, along with most of her colleagues, voted in favour of the private member's bill of the member for Bellechasse—Les Etchemins—Lévis, Bill C-226, that was recently before the House. It proposed mandatory screening. I find it funny to hear the member question the constitutionality of mandatory screening when that was the entire premise of Bill C-226, which she voted in favour of earlier this year.

Why, despite constitutional questions raised, do I support mandatory screening? Because at committee we heard there was only one way to deter drunk driving, that there was only one way to deter drug-impaired driving. That was to scare people into really believing they would be caught. Minimum mandatory sentences and what will happen after the fact, will not deter people; it is the idea that police may actually catch them in the act.

At committee, we heard from witnesses from Colorado, Australia, and from other jurisdictions where mandatory screening was introduced. They told us that mandatory screening had a huge deterrent because of the heightened probability of being caught.

Since mandatory screening was introduced in Australia, Finland, Sweden, France, and Ireland, there was an incredible reduction in the number of deaths related to alcohol. In Finland, where mandatory screening was introduced in 1977, a study noted that the number of drivers impaired by alcohol had decreased by 58%. According to a report published in Ireland, deaths caused by impaired driving decreased 19% in the first year following mandatory screening.

We know that mandatory screening really works. It has been proven to work across the globe. Some groups, such as the Canadian Bar Association and the Barreau du Québec, asked questions about the way mandatory screening would work. At committee, we introduced a provision into the preamble of the bill to reassure Canadians that any check needed to be done in line with the Charter of Rights and Freedoms.

Police officers are able to do a lot of things when they make a legal stop, including asking someone for a breath test, under common law. We are now codifying what existed already under the common law. We are seeing that without reasonable suspicion, we can ask for a breath test, provided it was a lawful stop. The committee and all of us want to ensure we follow those rules and have asked, as part of this law, that the minister undertake a review of what has happened in three years to ensure mandatory screening is carried out properly.

Other measures and amendments on minimum mandatory sentences were introduced at committee. While I am very pleased that maximum sentences have increased for the very serious offences under the law, we did not introduce new minimum mandatory sentences. This was the one and only area where I saw divergence between ourselves and members of the official opposition.

The committee heard from groups, such as Mothers Against Drunk Driving, that there was no proof in any case that minimum mandatory sentences actually stopped people from driving impaired. When asked specifically, MADD stated that it did not favour increasing the minimum mandatory sentences that existed. However, I note that the committee, on an amendment from a Liberal member, reinserted minimum mandatory sentences in the one place it had been removed in the bill, which was for the most serious offence of driving while impaired causing bodily harm, and extended the maximum sentence.

I am not one of those people who believe there should never be minimum mandatory sentences. For the most serious offences, there needs to be minimum mandatory sentences. However, I also note that this has to come under a thorough review to determine exactly the right standards and the right duration of those sentences, because we also know there are drawbacks. When there is a minimum mandatory sentence, one does not plead out. People are very reluctant to plead out because they know they will go to prison for a certain minimum term. Therefore, it clogs the court system, which is already clogged, and causes difficulties under Jordan, where people are acquitted because they do not get a speedy enough trial.

We also know that minimum mandatory sentences are not really a deterrent. They do reassure families and victims, but they do not deter people from the behaviour. I would rather wait, before we change what the minimum mandatory sentences were, the committee having reinserted the exact same minimum mandatory sentences that exist now in law, to see what the review of the Minister of Justice has to say. Certain minimum mandatory sentences already in the Criminal Code have been found unconstitutional and others may need to be inserted. I would rather wait for a thorough review before changing them for impaired driving offences.

Finally, I want to thank the dozens of witnesses who appeared before committee. It was heart-wrenching to hear the testimony of parents who had lost children in impaired driving accidents. It was heart-wrenching to hear about the beautiful people whose lives were prematurely shortened and whose mothers would never become grandmothers, would never see their kids graduate from college, and would never see their kids have families of their own or have successful careers. It was awful. The people who came before committee to be heard deserve commendation. They chose not to just sit back and suffer, but to make changes to improve our laws, to fight to improve our laws to improve Canadian society. I want to herald the parents who had the courage to come before the committee. While they supported the thrust of the bill, I do not support their call for longer minimum mandatory sentences at this time.

From what I heard, we really need to work on what we do to help the victims their families. That issue of concern needs to be addressed. However, I support the thrust of the bill and encourage all my colleagues to support it.

Motions in AmendmentCriminal CodeGovernment Orders

October 20th, 2017 / 10:20 a.m.
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Eglinton—Lawrence Ontario

Liberal

Marco Mendicino LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, I would like to begin by thanking my colleague from Saanich—Gulf Islands for her constructive input.

At the same time, for the reasons that follow, we will be encouraging all members to vote down the amendment and to vote for the bill in its current form.

I also just want to take a moment to address some of the comments that were raised by my hon. colleagues from the Conservative opposition. I would encourage them to read the bill very carefully, because imbedded within some of those questions were, at a minimum, some inaccurate assumptions about mandatory minimum penalties as they apply to the impaired driving regime, as well as whether or not we have the sufficient technology to test for impairment as we usher in a new era with regard to the strict regulation of cannabis. Obviously by doing so and by reflecting on the language of that bill carefully, my hope is that we will elevate debate in this House, in the interest of keeping our roads safe while at the same time safeguarding individual liberties.

It is a pleasure to speak on Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts. The bill will bring about the most important changes addressing alcohol and drug impaired driving since 1969 when Parliament enacted the offence of driving with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood, and authorized the police to demand a breath sample on an approved instrument.

Today, I will focus my remarks on the proposal in the bill that would authorize a police officer to demand a breath sample from any driver without needing to suspect that the driver had alcohol in their body. In Bill C-46, this is called mandatory alcohol screening, as members have heard. The enforcement tool was pioneered by Australia more than 30 years ago. It has now spread to New Zealand, the European Union, and dozens of other countries.

Since then, mandatory alcohol screening has been widely credited with dramatically reducing rates of impaired driving and saving many thousands of lives, as the member herself acknowledged.

The Standing Committee on Justice and Human Rights had considered mandatory alcohol screening when it held hearings on alcohol impaired driving in 2008 and 2009. In its 2009 report entitled, “Ending Alcohol-impaired Driving: A common approach”, the standing committee unanimously recommended that random roadside breath testing be put in place.

During its extensive hearings on Bill C-46, the standing committee heard numerous witnesses on the subject of mandatory alcohol screening. Professor Robert Solomon, who has written many articles on mandatory alcohol screening, as well eminent constitutional scholars like Professor Peter Hogg spoke in favour of mandatory alcohol screening.

Representatives of the Canadian Bar Association, the Canadian Council of Criminal Defence Lawyers, and the Canadian Civil Liberties Association expressed some concerns with mandatory alcohol screening.

The standing committee also heard from Australian experts about how mandatory alcohol screening works in that country, and its effectiveness in reducing deaths and injuries.

I believe it is fair to say that the arguments of opponents to mandatory alcohol screening were based partly on their claim that it is not needed in Canada, as our current system of roadside screening based on suspicion is just as effective and that mandatory alcohol screening would have a disproportionate effect on visible minorities.

With respect to the effectiveness of Canada's current suspicion-based system, it is important not only to look at the reductions in impaired driving that have occurred in Canada over the past 20 or 30 years, but also to consider Canada's alcohol impaired driving laws and how they fare when compared to other countries. The comparison is grim.

As Professor Solomon told the standing committee:

Our current law has left Canada with one of the worst impaired driving records among comparable countries. Consistent with earlier studies, the United States Centers for Disease Control reported that Canada had the highest percentage of alcohol-related crash deaths among 20 high-income countries in 2013. Although Canadians drink considerably less than their counterparts, they're much more likely to die in an alcohol-related crash. For example, Canada’s per capita rate of alcohol-related crash deaths is almost five times that of Germany, even though Canadians consume 33% less alcohol. They drink more, we die more.

The laws in these other countries do a far better job than the laws in Canada of separating drinking from driving. Not coincidentally, 17 of those 19 countries have comprehensive mandatory alcohol screening programs.

These are the words of Professor Solomon, not any parliamentarian, a respected scholar.

Professor Solomon pointed out to the committee that the experience of other countries shows that going from suspicion-based roadside screening to mandatory screening has had a significant effect in reducing impaired driving deaths and injuries. He stated:

The assertion that there is no direct evidence that mandatory alcohol screening is better than selective breath testing, the system we currently have, is simply false. The sharp decreases in fatal crashes that occurred in Queensland, Western Australia, New Zealand, and Ireland occurred after those jurisdictions moved from selective breath testing to mandatory alcohol screening, exactly what would occur in Canada if the mandatory alcohol screening provisions in Bill C-46 were enacted.

Again, those were the words of Professor Solomon.

The standing committee also heard from Dr. Barry Watson of Queensland University of Technology. Dr. Watson explained the evolution of impaired driving legislation in Queensland and the effect of various countermeasures. Queensland introduced breath testing in the late 1960s, as did Canada. Queensland then introduced a program called reduced impaired driving, or RID. The police could randomly pull over other drivers, but could only breath test those they suspected of drinking. This is the system we currently have in Canada.

Finally, Queensland introduced mandatory alcohol screening in 1988. Dr. Watson's evidence strongly supports that mandatory alcohol screening is more effective than suspicion-based alcohol screening. He told the standing committee, “the introduction of random breath testing was associated with a further 18% decline in fatalities over and above what was the case when the sobriety checkpoint program was in place.” We can and must do better than we are, and I submit we should follow the example of these other jurisdictions that have been most successful in reducing the painful toll taken by alcohol-impaired driving. That means adopting mandatory alcohol screening.

More troubling is the concern expressed by several witnesses that mandatory alcohol screening would lead to racial profiling. This is a concern that we all share. We all know that there have been well-documented cases of police forces disproportionately carding or pulling over persons of colour. As my colleague made mention, there are indeed concerning statistics with respect to the overrepresentation of our indigenous and racialized communities in our jails. Let me be clear. Racial profiling is an abuse of police power. It is unacceptable. However, there is nothing in Bill C-46 that condones or promotes racial profiling.

Our government was aware that this criticism had been levelled at the provision authorizing mandatory alcohol screening in a former private member's bill, Bill C-226. Consequently, our government, in Bill C-46, proposed to specify that a police officer can only make a demand as follows:

in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law....

I pause to emphasize that passage, because it underscores that our government places a great value in ensuring that all law enforcement, and indeed all law state actors, exercise their powers in accordance with the law and the charter.

For further clarity, our government supports the introduction of an amendment to the bill's preamble, which serves as an interpretive aid for our courts. The amendment, which was adopted at committee, stated, “it is important that law enforcement officers...exercise investigative powers in a manner that is consistent with the Canadian Charter of Rights and Freedoms”.

Let me take a moment to refer to one last example of how this technology and these standards are working in other jurisdictions. The experience of Ireland supports the opinion of other witnesses who have testified, and other experts. There was an increase of about 10% in charges in the first year after Ireland introduced mandatory alcohol screening, but the number of charges have decreased steadily since then as Irish drivers have become aware of the new law. In fact, the number of charges in Ireland fell by almost 65% in the 10 years following the introduction of mandatory screening.

I believe that our courts will be able to cope with any increase in charges, because many provisions in Bill C-46 would address issues that have been causing delay, particularly with respect to disclosure, proof of blood alcohol concentration, the elimination of the bolus drinking defence, and restriction of the intervening drink defence.

In closing, I want to again thank my colleague from Saanich—Gulf Islands for her remarks. They were thoughtful, careful, and balanced. However, even she conceded that there is a good faith attempt here to strike the balance between the need to keep our roads safe while at the same time respecting an individual's charter rights. I encourage her to support the bill.

September 20th, 2017 / 4:35 p.m.
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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.

September 19th, 2017 / 5:10 p.m.
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Director, Alberta, Families For Justice

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.

September 19th, 2017 / 4:30 p.m.
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Director, Alberta, Families For Justice

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.

September 19th, 2017 / 4 p.m.
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NDP

Wayne Stetski NDP Kootenay—Columbia, BC

Thank you.

Thank you for being here today.

My riding of Kootenay—Columbia is located in southeastern British Columbia, and my constituents are very interested in and concerned about both Bill C-45, trying to ensure that economic opportunities continue for small business, and Bill C-46, in terms of keeping us all safe.

I would start with a question for Mr. Therrien. In the material prepared by the committee, you are specifically mentioned as having raised concerns regarding random breath testing, provisions from Bill C-226, particularly concerning racial bias in the application of this law.

What sorts of conditions could you recommend to the committee to prevent arbitrariness and racial profiling in random breath testing?

September 19th, 2017 / 3:30 p.m.
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Daniel Therrien Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Thank you very much, Mr. Chair.

Thank you for the invitation to appear before you today on Bill C-46. I'm accompanied by Madam Kosseim. As you may be aware, we appeared before the public safety and national security committee, SECU, on a similar private member's bill, C-226, a year ago. I would stress from the outset that our office fully understands the severity, societal impact, and clear dangers of impaired driving. For governments and law enforcement, combatting impaired driving is clearly a compelling state objective, given the tragic impact on Canadians each year.

In our testimony before SECU last September on the other bill, we acknowledged the pressing nature of the state objective but also posed three questions related to the necessity and proportionality of the new provisions. Those questions included consideration of how invasive this new power could be, how necessary it is to move away from the suspicion standard, and whether there is any concrete evidence as to how effective the proposed changes might be.

In the interim, since our last testimony and the introduction of this bill, the government published a charter statement and a legislative backgrounder, which attempt to deal with these questions. While we might disagree on some particulars, for instance on the reasonable expectation of privacy of individuals subjected to new mandatory roadside testing, on the whole we find these explanations satisfactory.

For instance, these materials provide information on the limitations of the current system in Canada and the effectiveness of models outside Canada in reducing deaths due to impaired driving. On the whole, we think that the government's answers to our questions on necessity and proportionality, if not perfect, are in most ways adequate.

All that said, however, there are some other substantive privacy issues we would like to raise, including the broadening of purposes for which test results and analyses of bodily samples can be shared and how this sensitive data would be handled.

Clause 15 of the bill, which would add subsection 320.36(2) to the Criminal Code, permits the sharing of the results of any evaluation, physical coordination test or analysis of a bodily substance for the purpose of the administration or enforcement of a federal or provincial act.

Currently, the use and disclosure of this type of information is restricted to specific Criminal Code, Aeronautics Act or Railway Safety Act offences, or to the administration or enforcement of provincial law.

As a consequence, the bill would widen the potential uses and purposes for which such results may be put by authorities.

While road safety is clearly a compelling state objective, we do not see how the numerous other administrative objectives would justify the sharing of test results.

In your study, we recommend that the committee examine which specific laws are contemplated here and consider restricting sharing to the enforcement of statutes with sufficiently compelling state objectives that justify sharing sensitive information originally obtained without grounds.

If you are not convinced, you could limit sharing under the system in the subsection in question only to federal or provincial laws dealing with transportation security.

We would also ask whether testing results are retained on individuals who are not found to be in violation of the regulatory limits.

Unrestricted retention of negative test results or false positives would represent a privacy risk if clear ground rules around their required destruction are not set in advance.

Thank you for the invitation. I look forward to answering your questions.

September 18th, 2017 / 5:35 p.m.
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Conservative

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.

September 18th, 2017 / 5:10 p.m.
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Markita Kaulius President, Families For Justice

Thank you.

Dear MP Housefather and honourable members of the Standing Committee on Justice and Human Rights, thank you for allowing me to be here today to speak with all of you.

My name is Markita Kaulius. I am the founder and president of Families For Justice. I am here today representing thousands of Canadian families that have had our children and loved ones killed by impaired drivers in Canada.

On May 3, 2011, my 22-year-old daughter Kassandra went to the university to write a final exam towards her teaching degree. Later that day, she went out to coach a girls' softball team, and pitched a softball game herself that night. Kassandra left the park and was driving home when she was stopped at a red light. The red light turned green, and she proceeded into the intersection to make a left-hand turn. An impaired driver came speeding down the curb lane and accelerated through the intersection on a red light that had been red for 12 seconds. The driver got airborne over railroad tracks and slammed into my daughter's driver-side door, striking her at 103 kilometres an hour. Kassandra's car was sent up and over a median about 1,200 feet down the road, and debris was sent across four lanes of traffic. The driver got out of her car and went up to look at my daughter dying, then fled the scene of the collision. Kassandra never came home. She was killed in a catastrophic accident. I'm sorry, it was not an accident; it was a collision. She died from multiple injuries she received from being crushed to death at 103 kilometres an hour.

During that same year, 1,074 other innocent Canadians were killed, and over 62,000 people were injured in Canada by impaired drivers. Even with all the education and awareness campaigns we have had over the past 35 years, impaired driving is still the number one criminal cause of death in Canada.

Each year statistics show impaired driving causes the deaths of thousands of innocent people across this country. Statistics show on average between 1,200 to 1,500 people per year are killed by an impaired driver—that equates to about four to six people a day—and 190 a day are injured by impaired drivers in Canada.

Numerous lives are tragically cut short by impaired drivers who make the decision to be reckless in their actions. They make the wilful choice to put others at risk on our roadways and highways by driving while being impaired by either drugs or alcohol. Somewhere today in other communities, there is the next victim of impaired driving.

A speeding vehicle in the hands of an impaired driver becomes a 2,000 pound weapon. It is as much a lethal weapon in causing death as a loaded gun or a knife. The only difference is that the weapon of choice is different and the victims are at random on our roadways and highways, and it causes more severe injuries. It happens in every city and town across Canada. The deaths are all vehicular homicides, and the devastation to families is life changing.

Families For Justice has been lobbying the federal government in the form of several bills over the past six years. We supported Bill C-247 and Bill C-226, which were both voted down by the federal government, and over the past six years while we've been waiting for the past and present governments to make changes to laws in Canada, over 6,000 more innocent lives have been lost to impaired drivers in Canada.

In 2011, fatalities involving a drinking driver accounted for 33.6% of total deaths on Canada's roadways. The statistics reflect the growing rate of drug presence in drivers involved in fatal crashes as well. In fact, drugs are now more present than alcohol in drivers involved in fatal crashes.

An estimated 30% of impaired driving offences are by repeat offenders. These offenders are more likely to drink and drive frequently, often at higher breath alcohol concentration levels, and they have a history of prior convictions. Some have alcohol dependency issues.

Those with chronic dependency issues are often employed and driving through our neighbourhoods, through school and bus zones, in the morning rush hours with high blood alcohol levels from the previous night's drinking or drugging. They are also relatively resistant to changing their behaviour, as evidenced by their continued offending behaviour, even after they have faced penalties. Even though these offenders represent a relatively small proportion of the driving population, they account for nearly two-thirds, or 65%, of all alcohol-related driving fatalities and they were responsible for making 84% of all drinking and driving trips. In other words, they drink and drive more frequently than any other type of impaired driver.

We owe it to the lives lost and to the families to rededicate ourselves to the task of finding the most effective measures to finally put an end to impaired driving on our roads. Canadians are counting on the Government of Canada to not give in to the temptation to simply talk tough in the wake of these tragedies. We are counting on you to stop the next crash, the next injury, and the next death, and focus on effective deterrents. It is time now that we measured the progress of making real changes to Canada's impaired driving laws, not in the years that you have just had a discussion about it. This legislation will save lives and hold people accountable for their actions in committing crimes.

The impaired driving act was designed to address inconsistencies in the Criminal Code, harmonize and increase penalties for repeat offenders, simplify the burden of proof for establishing blood alcohol concentration, and speed up impaired driving related court cases. The legislation should contain important measures that are essential to combatting impaired driving, but there are still items that need to be addressed in this bill.

While we support many of the proposed changes in Bill C-46, we strongly feel there are two urgent changes that need to be considered and have not been addressed. Drivers of all ages still risk the chance and drive after consuming alcohol or taking drugs, and only very strict deterrents would impact the crucial thoughts of a driver before they drink or do drugs. Tougher laws must be implemented to enforce deterrence.

Families for Justice submitted over 117,000 names of Canadians on petitions asking the federal government to change the Criminal Code of Canada and the offence of impaired driving causing death. We ask that this offence be redefined as vehicular homicide as a result of impairment. We also do not see any mandatory minimum sentencing for anyone convicted of impaired driving causing a death, which was also requested on our petition from the Canadian public. We feel both these changes in the laws are very strong deterrents to add to Bill C-46. The driver has broken two driving laws: one, by driving impaired, and two, by causing the fatality of an innocent person.

We have the support of the B.C. chiefs of police, the Edmonton police, the RCMP, the Alberta Federation of Police, the Canadian Association of Chiefs of Police and there isn't a first responder, a paramedic, a police officer, a fireman, or a citizen who doesn't hope that one day the number of tragic impaired driving collisions will stop.

Changing the Criminal Code of Canada would finally call this crime what it rightfully is, vehicular homicide as a result of impairment. Minimum mandatory sentencing would finally hold people accountable for their actions in committing crimes against society, and in causing the deaths of innocent people. With additional changes we propose in Bill C-46, it would become one of the most important pieces of legislation for public safety that would become law and affect Canadians now and for future generations.

For 16 years, the law has set 10 years' imprisonment for causing bodily harm and life imprisonment as the maximum punishment for impaired driving causing death. In Bill C-46, the maximum penalty for dangerous driving causing bodily harm would increase from 10 years to 14 years. For impaired driving causing death, the sentence has not changed. It says in the Criminal Code of Canada that a person is liable on conviction of the indictment to imprisonment for life for causing a death, but sadly, no judges ever give this sentence for causing death in impaired driving cases.

The average sentence for impaired driving causing death is two to four years. The actual amount of time served in a two-year to four-year sentence is six months to 12 months. That's it. You can raise the sentence on a piece of paper in the Criminal Code but the reality is the lengths of sentences are never given out by judges in Canada in impaired driving cases where death or multiple deaths have occurred. No one in Canada has ever received a life sentence in prison for causing the death of multiple family members.

The courts need to acknowledge that the deaths that arise from impaired driving are homicides. They are vehicular homicides. People are being killed by the reckless action of others who make the choice to put others at risk by driving while being impaired. There is no excuse in this day and age for anyone to drive impaired as every one of those deaths was 100% preventable.

Over the years, judges continue to give out low sentences and fines in impaired driving cases. Therefore, those cases become precedents for future sentences. A prosecutor recently told a friend of mine who is a police officer that only about 3% of cases actually ever make it to trial. After plea deals are done and charges are dropped, he said only about 3% actually make it to trial.

We have seen such sentences as a $100 fine, a $1,500 fine, seven weekends in jail, and these sentences were given out to a driver for his third offence for impaired driving. This time he killed two women. Basically he got a $750 fine per death and served three weeks in jail for killing. One of these women left six children orphaned. The pain and the suffering of that family will last a lifetime.

Another couple, Brad and Krista Howe, were killed in Red Deer, Alberta. They left five children orphaned as well. The impaired driver who killed them was given a two-year sentence and was released after serving only seven months in jail. He served three and a half months per death. We've seen sentences of $2,000 fines, 90 days to be served on weekends only, four months in jail. That driver is appealing his four-month conviction.

Entire families have been killed by impaired drivers: Catherine McKay killed Jordan Van de Vorst, his wife, his son Miguire, age two, and daughter Kamryn, age five, in Saskatoon, Saskatchewan. The driver was convicted in 2016. It was her third impaired driving charge. She was sentenced to 10 years, and spent one month in jail. She was then sent to a healing lodge. Even the elders at the healing lodge shared with the deceased family that they didn't feel that was appropriate, that this woman should have spent some time in jail. She will come up for parole in February 2018 after serving 18 months out of a 10-year sentence. She will have served four and a half months per death.

Mr. Marco Muzzo killed three children in Vaughan, Ontario, Daniel, age nine, Harrison, age five, and Milly, age two, as well as their grandfather, and seriously injured the grandmother and aunt. In one fell swoop, he decimated an entire generation of the Neville-Lake family, its legacy and its future. Mr. Muzzo will come up for a parole hearing 18 months into his nine-year sentence. He will have served four and a half months per death. Jennifer and Edward Lake received a lifetime sentence of being without all three of their children.

Over the past several years an average sentence handed down for impaired driving has been two to four years. The average sentence actually served in jail is about six to 10 months.

We continually hear from the public that our justice system is broken and failing. Presently, victims feel that a human life is of no value in our criminal justice system and the victims are hardly considered. After attending many court cases over the last six and a half years, it appears in a court of law that often the investigations themselves are on trial and not the accused. The public feel there is a revolving door at the courthouses across Canada and that the courts are not holding people accountable for breaking the law and are depriving Canadians of their fundamental right to safety.

Parents have told us the message coming from our courts to Canadians is loud and clear and it is unmistakable: criminals have more rights than their victims. Even when writing a victim impact statement, victims have strict guidelines on what they are allowed to say and are limited on the number of pages they can write, while the accused is allowed all of the character references they can submit to court. The accused is allowed to see the victim impact statement before the victim even is allowed to read their victim impact statement. People keep asking us why the sentencing laws are so lax in Canada. We wish we could answer that question. Maybe someone here today could answer that for us. Why are the sentences so low in Canada?

We need stronger deterrents and tougher sentencing laws in Canada. We believe that mandatory minimum sentencing is not for every crime. However, Canadians do believe that when an unnatural death has been caused to an innocent person, the accused should be held accountable for causing a death and receive an appropriate sentence based on the severity of the crime. The sentences that are being handed down by our criminal justice system are inappropriate and need to be changed, and just changing them on paper and not having them ever enforced will not make a difference.

Most people who currently break the laws do so because they know there are very little consequences that will happen to them in our criminal justice system. If a mandatory sentence of five years was handed down, the accused would only serve about 10 to 12 months, which is still a low sentence for killing someone but is better than the six months or the $1,500 or $100 fine that is being given out now. The victim's family receives a lifetime sentence of being without their child or loved one and the victims receive a death sentence. Those who are not killed but who are injured may live a lifetime with extensive injuries or disabilities to deal with.

The convicted person is serving the least amount of sentence after committing the crime of killing or injuring a person. In Canada, impaired drivers will continue, and magnify, with the upcoming changes to marijuana laws. This crime will only grow if there are no mandatory minimum sentences handed down for impaired driving causing death. Considering the upcoming lessened restrictions on marijuana, not to mention the current crisis of opiate overdoses, which also happen in vehicles, the public is fearful of more impaired driving fatalities. Changing the Criminal Code of Canada would cover future deaths caused by both alcohol and drug impairment.

September 18th, 2017 / 4:10 p.m.
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Kathryn Pentz Treasurer, Criminal Justice Section, Canadian Bar Association

Thank you.

The criminal justice section of the Canadian Bar Association is pleased to comment on Bill C-46, which proposes to amend Canada's impaired driving legislation. The section recognizes the importance of road safety and the need to ensure that Canadian law offers effective enforcement mechanisms to address impaired driving. As front-line practitioners, crowns and defence lawyers, the CBA feels that we are very familiar with the operation of the law in this area and the demands impaired driving cases place on the system.

The reality is that litigation of impaired driving consumes significant court resources, and any change should be approached cautiously and only when shown to be necessary. Part 1 of the bill deals with impairment by drugs. Drug-impaired driving is a major concern and with the expected legalization of marijuana, the number of drivers on the road under the influence of marijuana is likely to increase. We appreciate the need to address this reality.

Part 1 of Bill C-46 would amend section 253 of the Criminal Code to provide acceptable levels for drugs, as we now have for alcohol. However, the reality is that it is much more difficult to determine an impairment level for drugs than for alcohol. Most experts will agree that everyone is impaired to some degree by alcohol at .08, but the analysis is not so simple in relation to drugs. In the fall of 2016, I had the opportunity to attend a government-sponsored conference in Quebec City on marijuana-impaired driving. The experts there from both the U.S. and Canada were unanimous that it was impossible to set a limit at which all drivers would be impaired by marijuana. Habitual users will have a higher tolerance and will not be impaired as easily as an occasional user. If the limit was set at five nanograms, a habitual user could fail the test but not necessarily be impaired. In contrast, an occasional user might pass the test but still be quite impaired.

The CBA is an association of lawyers, and unfortunately we cannot offer scientifically valid solutions. What we want to do today, however, is identify this as a problem and say that in order to comply with Canada's Constitution, any proposed limits must link the concentration level to impairment based on proven scientific evidence.

Part 2 of Bill C-46 would replace the existing criminal legislation on impaired driving with an entirely new regime. From the perspective of front-line practitioners, both the crown and defence, this is extremely problematic. In fact, our first recommendation is that part 1 of the bill proceed and part 2 be deleted.

Impaired driving is one of the most extensively litigated areas of criminal law, and every aspect of the existing law has been subject to intensive constitutional scrutiny. The law is now settled. When cases are litigated, the arguments are mainly about the facts of a particular case and how they relate to the established law. We are not arguing on how the law of those sections should be interpreted. If part 2 of Bill C-46 were proclaimed, we would basically be back at square one, arguing interpretation and constitutionality of the new provisions.

The criminal justice system is still struggling to deal with the time limits recently imposed by the Jordan decision of the Supreme Court of Canada. The government has recognized that court efficiencies are at a critical point. The Senate has recently released its report with recommendations to achieve greater efficiencies. We all acknowledge that court delays are a major concern. The CBA's criminal justice section believes that this is not the time to impose legislation that will add significant demands on the system. A complete revision of impaired driving laws, in our opinion, is unnecessary. Apart from the need to address drug impairment with the new technological advances on the market, the existing laws are not deficient. Any deficiencies that we see arising would result more often from a lack of training and resources than from problems with the existing legislation.

I will offer a few examples of our specific concerns in relation to part 2 of Bill C-46.

Proposed subsection 320.14(5) provides a defence to “over 80” if the driver consumed alcohol after driving, had no expectation that they would be required to provide a sample, and the levels were consistent with a level under 80 milligrams at the time of driving.

The aspect of having no expectation that they would be required to provide a sample is something new in legislation. The language “no reasonable expectation”, who will have to prove or disprove that expectation? What is a “reasonable expectation”? Presently, if an individual attempts to skew Breathalyzer results by consuming large amounts of alcohol after driving, we have the option of charging that individual with obstruction of justice. The only addition of this “no reasonable grounds to believe that one would be asked to provide a sample” is to introduce new terminology that would spawn further litigation.

We also feel very strongly about the mandatory roadside testing under proposed subsection 320.27(2). That testing is provided when the officer has a screening device. First and foremost, we have to recognize that it would involve a tremendous input of resources to get these screening devices out there, but the essence of the CBA's objection is that it is random testing. We view this as a violation of section 8 of the charter and believe it would not withstand constitutional challenge.

Advocates of random testing frequently look to Australia and its experience, where there was a significant reduction of fatal and serious crashes following the introduction of random testing, but we have to recognize that Australia does not have a charter of rights. More importantly, when they went to random testing, they went from no testing to random testing. In Canada, when we went from no testing to suspicion-based testing, we also had a reduction. We can't look at the Australian model and assume that we are going to have the same reductions.

The other reality, Ireland, has had some success, but again, Ireland deals with drinking and driving largely under an administrative scheme as opposed to a criminal justice scheme.

When we are looking at mandatory roadside testing, it's important that we recognize those factors and not simply jump aboard other studies and assume that we are going to have the same results with our existing legislation and without going to the administrative regime that has been seen in other countries.

The CBA is also concerned about proposed paragraph 320.28(2)(b), which seems to allow any police officer to completely bypass the drug enforcement officer and make a demand for a bodily substance. Under the existing legislation, if an officer believes a person is impaired, they may demand that the person comply with testing by a properly qualified police officer, a DRE officer.

Under the new legislation, the police officer can do that, or they can bypass the DRE officer directly and make their own demand for a bodily substance. This is, in essence, totally bypassing the need for the trained officer. We have a situation where the DRE officer, who is trained, has to go through tests before he can make a request for bodily samples, yet the untrained officer can just make a request for bodily substances without doing any testing. We view that, again, as a violation, and we believe very strongly that untrained officers should not be permitted to make a demand for a bodily substance. That is far more intrusive than making a demand for breath.

Proposed section 320.29 amends the section dealing with warrants after an accident resulting in death or bodily injury. However, unlike in the existing warrant section, the officer does not need to have any grounds to believe an offence was committed, only that there was an accident, coupled with a suspicion that the person has drugs in their system—not “had” drugs in their system at the time of the accident, but “has” drugs in their system at the time of the request of the warrant. There is no linkage at all to the drugs or the alcohol or the accident. This could basically allow the police to make a request for a warrant in any case where there's a death or bodily harm even where there's no allegation of an offence by the person targeted. Again, there are significant charter implications for such a broad authorization.

Bill C-46 still contains mandatory minimum sentences. We were pleased that the extent that was in Bill C-226 was removed, but mandatory minimum still exists in Bill C-46. The CBA has long opposed mandatory minimum sentences and we continue to do so. The minister has also recognized these as problematic and we support the judicial discretion to determine the appropriate penalty in this case, in individual cases.

Proposed section 320.23 provides that an offender is not subject to mandatory minimums if he or she completes a treatment program, but under Bill C-46, that can only happen with the crown's consent. We believe that it should be the court and not the crown who determines if a treatment program is required. We are also concerned that the lack of available treatment facilities in some jurisdictions could result in inconsistencies in the application of this section.

Thank you for your attention and I welcome any questions.

Justice for Victims of Corrupt Foreign Officials ActPrivate Members' Business

June 13th, 2017 / 5:40 p.m.
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Conservative

Peter Kent Conservative Thornhill, ON

Madam Speaker, it is a true honour to speak in support of Bill S-226. I thank Senator Andreychuk for her initiative in another place and I thank the member for Selkirk—Interlake—Eastman for bringing it to the House.

The legislation will effectively add a long overdue dimension to Canada's official sanctions regime by targeting corrupt foreign officials responsible for gross violations of internationally recognized human rights. This act will be forever associated with Sergei Magnitsky, a heroic victim of Vladimir Putin's brutally corrupt regime. He was an auditor who discovered and exposed details of a massive corruption racket involving many mid and high-level Russian government officials, oligarchs, best described collectively as “kleptocrats”.

I will not revisit the tragic details of Mr. Magnitsky's cruel detention, his torture and his death or of the Putin regime's posthumous conviction of Mr. Magnitsky on outrageously confected charges of tax evasion. However, I would recommend, for those unaware of the Magnitsky story, the international best seller, Red Notice, written by his employer, the crusading champion of Magnitsky-style legislation in democracies around the world, Bill Browder, CEO and founder of Hermitage Capital Management.

Bill C-226 lays out very clearly the circumstances under which corrupt foreign individuals, not just in Russia but anywhere in the world, would be listed. Listing would apply to individuals responsible for, or complicit in, extrajudicial killings, torture or other gross violations of internationally recognized human rights, and foreign government officials exposed of illegal activity.

The law would prohibit those individuals from travelling to Canada, investing in Canada or for any funds or properties of these individuals discovered in Canada to be subject to seizure. The law would also provide for penalties against Canadians found to be engaged in activities that would assist the identified corrupt foreign officials.

The Liberal government has come to accept and support the legislation very late in the day, even though in the final days of our previous Parliament, the Liberals joined all parties in unanimously supporting a motion for Magnitsky-style legislation.

The first Magnitsky legislation was passed in the United States in 2012. Other countries have followed such as the United Kingdom and Estonia. The European Parliament has called on member countries to consider imposing entry bans on listed individuals and for co-operation in freezing the assets of listed Russians.

Despite acceptance and implementation of these Magnitsky laws, the former Liberal foreign minister, Stéphane Dion, flatly opposed such legislation last year, saying, more than a little disingenuously, that it was unnecessary. Fortunately, over the past year, encouraged by the official opposition and NDP members of the foreign affairs committee, the Liberal members of the committee came to agree that in fact Canada did need Magnitsky-style sanctions legislation.

Our committee heard testimony from a broad spectrum of witnesses.

Former Liberal justice minister, Irwin Cotler, the sponsor of the House's original Magnitsky motion, said that the main objective “is to combat the persistent and pervasive culture of corruption, criminality and impunity”, and most importantly, to assure victims and defenders of human rights in such foreign countries “that Canada will not relent in our pursuit of justice for them”.

Garry Kasparov, an eloquent advocate of democratic reform in Russia and, of course, former world chess champio, put it this way in his testimony before the committee. He said, “Money is always looking for safe harbour. We are talking about hundreds of billions of dollars, if not more, of this money that will definitely be looking for a place to be invested.” He warned against Canada being considered by corrupt individuals as a “safe haven”.

Zhanna Nemtsova, daughter of the Russian pro-democracy crusader, Boris Nemtsov, murdered on a Moscow bridge in 2015, made clear the importance of targeted sanctions against named individuals. She said, “These are not sanctions against a country or even a government. These are sanctions against specific individuals responsible for corruption and for abusing human rights.”

Equally powerful testimony came from Russian human rights activist, Vladimir Kara-Murza who, after recovering from one sinister attempt to poison him in Russia in 2015, told our committee:

I have no doubt that this was deliberate poisoning intended to kill, and it was motivated by my political activities in the Russian democratic opposition, likely including my involvement in the global campaign in support of the Magnitsky Act.

Mr. Kara-Murza was in Canada a few weeks ago still recovering from a second poisoning attempt on his life. He encouraged Canadian parliamentarians to ensure the legislation was quickly voted into law and then, as importantly, effectively enforced.

That is an important point because, as the foreign affairs committee discovered during our hearings this past year, enforcement of Canada's existing sanction regime is pathetically dysfunctional and ineffective.

The Freezing Assets of Corrupt Foreign Officials Act was created in 2011, to respond to events of the Arab Spring, where governments fell and state assets were vulnerable to corrupt officials suspected of moving ill-gotten wealth to locations abroad.

The Special Economic Measures Act has been used in the creation of a number of regulations that would impose restrictive measures and prohibitions on illegitimate activities, to freeze bank accounts, to block financial dealings and seize property.

Sanctions against Iran for its nuclear adventurism and sponsorship of terrorism are within SEMA, as are sanctions against Russia for the invasion and occupation of Crimea and sponsorship of the deadly rebellion in Eastern Ukraine.

However, testimony revealed that Canadian departments and agencies that were mandated to monitor and to enforce such sanctions, operated in counterproductive silos, that the complexities of sanctions enforcement exceeded the capacity of departments and agencies. Most important, we heard from the RCMP and other agencies that there was a lack of capacity to monitor and investigate compliance and that sanctions enforcement was a much lower priority than say, anti-terror responsibilities.

While we in the official opposition are pleased that the Liberals have accepted our unanimous foreign affairs committee recommendations to add this Magnitsky bill, Bill C-226 to Canada's sanction regimes, there is still much more to be done.

There are 12 other recommendations in the committee report aimed at fixing Canada's dysfunctional sanctions enforcement to increase capacity, coordination, and commitment between departments and agencies. The need for just such action was made clear last month. Where bureaucrats, security agency officials, and financial institution specialists tended to scoff that Russian kleptocrats would want to move illegal funds to Canada or to enjoy those ill-gotten gains in Canada, information provided by Mr. Browder to the RCMP last year and to Canadian journalists more recently proved exactly the opposite.

The CBC confirmed that after following up on Mr. Browder's documents, a powerful Russian crime syndicate, accused of laundering hundreds of millions of dollars around the world, appears to have also flowed millions through nearly 30 Canadian bank accounts, without sanctions enforcers noticing. Some of those accounts belonged to individuals. Others were shell companies created to receive incoming funds and to send laundered money abroad.

Lincoln Caylor, a Toronto lawyer who specializes in complex fraud, was quoted as saying that there was so much documentation proving that millions from a sophisticated Russian tax fraud had moved in and out of Canada, that it was groundbreaking.

We in the official opposition are pleased the government has finally decided to support Conservative legislation, which will target the world's worst human rights offenders, as well as from Russia, to Iran, China, Congo, Venezuela, South Sudan, anywhere perpetrators of gross violations of human rights can be identified. We are pleased with the combination of Bill C-226 and the foreign affairs committee's unanimous recommendations to apply Magnitsky sanctions legislation and to enforce them.

The challenge now is for the often foot-dragging Liberal government to actually act.

June 13th, 2017 / 4:20 p.m.
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Carole Morency Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice

Sorry, I would like to add that when Bill C-226 was also being studied previously by the SECU committee, the issue was asked there as well.

If you look at the successes in addressing impaired driving over the years, you see it's probably a combination of many things. Public education is huge. Training for law enforcement is also important, as is a new law, legal framework, to provide new tools to detect and to better address the issue. Also a combination.... On the mandatory alcohol screening, where random breath testing, as it's called elsewhere...it's also probably related to a function of how many police you put at different points to do the random testing, or as proposed for mandatory alcohol....

June 13th, 2017 / 4:20 p.m.
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Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

We've inserted, not random breath screening but mandatory breath screening, and there are many reasons that we've done that. Certainly it's based on what we've learned from other jurisdictions in terms of preventing the number of accidents on the highways, significantly reducing the number of deaths. It certainly acts as a deterrent factor. What we've also learned from evidence is that a significant number of drivers, up to 50%, whether it's at a roadblock that has been erected by police officers...manage to drive through the roadblock while they have been impaired by alcohol. Mandatory screening was also proposed in private member's Bill C-226.

As you know, Mr. Cooper, the public policy reason for the mandatory roadside screening is to ensure that we prevent deaths, and that is entirely reasonable in the circumstances.