Justice Committee on June 5th, 2007

[Paul Burstein]

You made two points, sir, about surely we must be able to come up with a system where we can get to the blood test and that would provide reliable evidence of conviction and isn't that going to essentially help reduce the incidence of drug-driving through the deterrence.

I want to deal with both those points. First of all, even if you get to the blood test stage of the process, the science isn't there to make it simple enough to establish what level of drug in the blood or urine proves impairment. Read the Senate committee report. Some places use one level, other places use another; some scientists say it's ten nanograms, France says it's one nanogram. So the difficulty you're going to have, especially because in the legislation you don't even set a standard, is in each case you're going to have to litigate the issue of how much of a drug in the system establishes impairment.

The problem that creates for the “deterrent” value of this law.... I remember many years ago when Ontario brought in its administrative driving licence suspensions. I think my friends at the Safety Council will say that probably the most dominant reason for the reduction in impaired driving in Canada is the nationwide administrative non-criminal licence suspension. I remember cross-examining Dr. Beirness about this, and I remember the alliteration he had: that the most important thing about deterrence or the most important features of a law to promote deterrence are swiftness, certainty, and severity. In other words, swiftness of the process concluding or the punishment being imposed after the “commission of the offence”; the certainty, meaning that it's always imposed; and, of course, the severity.

All you have in this legislation is severity. You don't have swiftness and you don't have certainty. Why not? Because of all the reasons we said before. Every one of these cases will go to trial because the science is so vague.

In other words, as an example, you have the young person who arguably may have committed the offence, and the sanction they might receive is going to be 15 months later--and they might receive it. That doesn't promote deterrence. You want to go with the administrative penalties, the non-criminal ones.

Sorry, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Burstein.

I'd like to hear from Mr. Marchand.

[Raynald Marchand, General Manager of Programs, Canada Safety Council]

Thank you, Mr. Chair, members of the committee, and others.

At the Canada Safety Council, of course, we have seen that prevention works over the years. Perhaps our greatest gain is indeed by prevention, because if we look at the general public, today they have more or less disappeared from the statistics. The average social drinker understands the penalities and behaves accordingly. Our greatest challenge has really been in dealing with those folks who are alcohol-dependent, people who are perhaps alcoholics or who drink to excess on a regular basis. How do we reach these people? Many of them are more afraid of being apprehended than of the actual punishment. After all, if we look at impaired-driver fatalities, in close to half of them, it's them--it's the drivers themselves who receive the greatest punishment, which is death. That doesn't deter them.

[Rick Dykstra, Conservative, St. Catharines, ON]

I think it does, actually.

[Raynald Marchand]

Well, yes; there's no repeat offender there.

That penalty doesn't deter them, so how do we reach these people who continue to drive without a licence or without insurance? They have an alcohol problem. We need new ways to reach these people. It isn't the penalty as much as it is that they're going to get caught and they're going to be prosecuted.

In Ontario and Quebec and other provinces we have moved into other ways to prevent them from buying vehicles. For example, you have to have a driver's licence today to register a vehicle in your name, so if they get caught, they can't just go and buy a $1,000 vehicle and get back on the road without a licence or insurance. They can't do that quite as easily as they once could.

We need to look at ways to keep these people off the road until they have beaten the problem they have, which is alcoholism or impaired driving.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Marchand.

Go ahead, Mr. Therien.

[Emile Therien]

Am I allowed to speak?

[The Chair, Conservative, Art Hanger]

You are.

[Emile Therien]

Paul alluded to administrative licence suspensions. In terms of a tool, I think police forces across the country love them. I think that's a good sign. We have called on all the provinces and territories to standardize the sanctions under these. It doesn't make sense that in Ontario it's a 12-hour suspension, and nothing happens to you; there's no report to the insurance company. We want these standardized across the country. I think it makes a lot of sense. Some provinces are rather more punitive; I think Saskatchewan is. I think maybe they're the model in terms of the sanctions they're giving.

Another important point we alluded to in our presentation is that a lot of impaired driving cases have been plea-bargained outside the criminal code. The province on the far west, I think, gives you an example. I wonder if Paul and Jonathan might be able to tell us if this is happening to a great extent in Ontario, and what the numbers are in terms of the criminal charge.

They may not want to tell us.

[The Chair, Conservative, Art Hanger]

I'm not going to allow them to answer right at the moment; I'm going to get back to the witnesses here. That question will come back--I know it will.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

My question is addressed either to Ms. Beauchesne or to Mr. Rosenthal, who is a lawyer. In the province of Quebec, when an automobile accident is caused by a criminal driving under the effect of alcohol—because drugs are not yet included in the legislation—who kills someone and injures himself, even though he is responsible and has pleaded guilty, the Automobile Insurance Board, which is a provincial Crown corporation, pays him an allowance throughout his prison term for the lasting effects of his injuries.

Second of all, I am talking about drugs that are much more powerful than marijuana—such as cocaine, and so on—although you seem to be obsessed with marijuana. I would like to present a possible scenario in Quebec and Ontario. At the present time, if someone smokes a cigarette in a public place and is found guilty, he receives a fine of at least $50. However, you are telling us that if someone smokes marijuana in a public place, then gets into his car and drives down the highway, he should not be prosecuted or convicted. You seem to have some reluctance where marijuana is concerned, but does that reluctance extend to all drugs? That is my first question for you, Mr. Rosenthal.

[Paul Burstein]

I think that question is actually aimed at me.

Sir, it's not that we're suggesting that people should smoke and drive. The concern about section 253.1 isn't about using drugs while driving, it's just while having them in your pocket. As far as driving while you're impaired by a drug is concerned, if you can reliably prove that a person is impaired by a drug, it is an offence under the Criminal Code right now. We don't have a problem with that. We're just saying that the legislative package you're proposing here doesn't do anything to really help establish, or help the police establish, anything. It's just going to be a very expensive boondoggle along the lines of, dare I say, the firearms registry kind of boondoggle. Or is that a verboten term here?

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Do I have any time left, Mr. Chairman?

[The Chair, Conservative, Art Hanger]

Yes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

My question is again addressed to Mr. Rosenthal, since this gentleman answered for him. This question is addressed to you. You know as well as I do that when we represent clients in a prosecution case involving blood alcohol levels, whether it's in Quebec or Ontario—as a matter of fact, in Ontario, you are in an even better position than we are in Quebec—almost all of our clients ask for legal aid because, very often, they have lost their jobs; they are people who are experiencing problems. In my case, it's the Government of Quebec that pays the lawyer's fee. In your case, you are paid $85.19 an hour to represent the same type of client. I understand that this allows you to make money, and I hasten to add that I, too, have made money from this, because I worked in that area for quite a long time.

But my question for you is important because, based on your advice, we will have to make some decisions. I hear the comments made by Ms. Beauchesne, just as I have heard those made by other witnesses, and have heard yours as well. The problem is that you always draw our attention to marijuana. Is it marijuana that poses the problem or is it drugs in general? As far as I am concerned, drugs include things other than marijuana. You seem to focus our attention solely on marijuana. Is that your intent? Is it that particular aspect of things that concerns you about the bill, or is it with respect to drugs in general that you would like to remove any possibility—and I stress the word “possibility”—of their being detected?

I would like to make a second point. From the very outset, we have been talking about extreme cases. I just want to point out that in both Quebec and Ontario, we use… In Quebec, section 215 of the Highway Safety Code allows us to arrest somebody if the car's tail lamp has burnt out. The police officer approaches the vehicle, asks the driver to lower his window, smells alcohol on his breath and proceed to administer a test, and so on. However, it is possible that the officer doesn't suspect anything. What about a driver who hasn't smoked marijuana for over a month and whose tail lights are all working; in that case, there is no problem. What is your concern about that? What are you afraid could happen after one or four months? As a lawyer, that's a point I would like you to explore. First of all, he can't be arrested because police officers will have no indication or no suspicion on which to arrest him. So, what are you afraid of? That's what I want to know.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Mr. Rosenthal and Madame Beauchesne, I know that you both will reply, but if you can, make it quick.

[Jonathan Rosenthal]

I can say that the vast majority of defences of these cases are not legal aid funded at all. I can tell you, and Mr. Burstein can probably confirm, I'm a wonderful specific deterrent against my client committing these types of offences ever again. I make sure they pay for it in some way or another.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Maybe you can tell us why we can go ahead with this legislation.

[Jonathan Rosenthal]

I've said it before. The greater you make the penalties the more litigation you create. Certainly I can't complain from that standpoint. That's not why I'm here.

I can comment on the drugs. Paul obviously addressed it more than I did. If the police pull someone over--and let's make no mistake about it--and they are exhibiting signs of impairment, the police do not have to prove whether they're impaired by cocaine, or the type of sleeping pill that Mr. Lee has in his pocket, or by alcohol. Impairment is impairment. If they are exhibiting signs of impairment, the offence, as it is now drafted in paragraph 253(a) of the code, says “impaired by drugs or alcohol”, so which drug it is is irrelevant.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Rosenthal.

Madame Beauchesne.

[Prof. Line Beauchesne]

It was actually in proceedings here in Committee that there was mainly a focus on marijuana; as far as I'm concerned, my expertise is in impairment. If you want to talk about the people who probably use more drugs than any other group and could be impaired, I'd say they are probably the elderly. At the present time, that is the group most at risk, as consumers of drugs, of being impaired. It was along those lines that I asked the question earlier: is this bill concerned with impairment, whatever the cause, or with users of illicit drugs?

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Beauchesne.

Thank you, Mr. Petit.

Mr. Thompson, I think you have some questions.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you.

I find the discussion very interesting. A lot of the things that were said are troubling to me.

I'll start with the Canada Safety Council. They mentioned that most of these problems we're dealing with are with people who are dependent on alcohol, probably alcoholics more than the social drinker. Yet in my riding--I keep tabs on all the courts and I have three different courts in a rural jurisdiction--over the last while I can't tell you how many young offenders, 16-, 17-, 18-year-olds, were drunk and mostly driving while intoxicated. It's a phenomenal number, and this is a small rural area. I can only imagine what it must be in other jurisdictions. But these young people aren't necessarily drug-dependent or drink-dependent. They're just starting out. They haven't got enough brains to know how to do it, maybe.

Then we talk about education. Well, I've been in the education system for 30 years, and I've seen all kinds of programs. And yes, they will have a positive effect on a good number of the students, but they won't reach everybody. There's no doubt about that. And of course in our wisdom as a wise society, we lowered the drinking age from 21 to 18, and trust me, that didn't do us any favours in the secondary schools with younger people. Where we used to have a problem with 18- and 19-year-olds consuming, it suddenly became a problem with 14- and 15-year-olds, or even worse.

We're our own worst enemy in some of the other decisions that we make, the influences. I've heard comments like, “Well, marijuana's really nothing all that big”. Yet I've seen it have a drastic effect on young people in the school where I taught, a horrendous effect.

I'm really tired of the legal system. It seems as if the legal system overpowers the justice system on undue harsh penalties. I heard that comment--undue harsh penalty. Well, what's an undue harsh penalty for the victims at the hands of these people? How bad does it have to get before that becomes undue harsh penalty? And deterrence doesn't work. Well, unfortunately, he's probably right in most cases. I can't remember who said that, but he's probably right in most cases.

I can name one particular case back in the sixties in a county, and I think it was Saguache County--I'm trying to remember--where they had the right to impose the law. What they did is if they caught you impaired or drinking while driving or whatever, they took your vehicle, period. No questions asked, you lost your vehicle. If it belonged to your dad, it was gone. If it belonged to a company, it was gone. Boy, did that deter drinking in that county. You didn't do it. It was very effective, but unduly harsh, I will admit.

So where is the balance that Mr. Dykstra was trying to seek? We go to the extremes at one end or the other and we never seem to arrive anywhere. And always, to me, it's the legal system that interferes. We talked about cameras. My God, if you used a whole bunch of cameras, how long would it be before there'd be some people out there saying “You have no right. You're invading my privacy.” We're overdoing this whole thing. It's overkill. Why don't we stick with the brass tacks?

Was it 815 dead during 2004? My God, people, 815. We are very saddened, we're broken up that we've lost 56 soldiers since 2002 in the war in Afghanistan. That breaks us up. And here we've got 815 in one year from drunk drivers? If this happens every year, how many thousands is that? I think it's time to stop all the nonsense of talking. What do we have to do to get down to hit that balance and get it fixed? What do we have to do? I'm still waiting to hear good solutions. I'm sorry, I can't buy a lot of them. I can't buy it.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Thompson.

It invites some response, undoubtedly. I'm going to ask you to keep your comments short, but I will go around the table.

Mr. Belleau, you indicated....

[Louis Belleau]

Those are very relevant questions. Whether we are talking about Canada or other industrialized countries, no one can boast of having achieved absolutely fantastic results in terms of controlling the crime of impaired driving or drinking and driving.

We talked about education. When the Code was amended in Quebec in 1985, the amendment simply involved raising the minimum fines from $50 to $300. There was a highly visible television advertising campaign about this. The slogan was: “Drinking and driving is a crime”. Several years later, people agree—and there is a consensus on this—that this type of action, which includes visible barriers and highway spot-checks at strategic points, has contributed to a considerable drop in the number of people being arrested for impaired driving.

We can see this not only because police officers have less work, but also because it has been observed that there are fewer people driving drunk on the roads. That tells us that in terms of education, one of the solutions is to make people aware of the idea that they are committing a criminal offence, and that they will be arrested and punished for it. The certainty of being subject to punishment is 100 times more effective than increasing the fine from $600 to $1,000. That type of action changes nothing. When you're dealing with people who get in their car and drive after having a few drinks, the fact that the penalty will be $400 more will not change his behaviour.

The expression “unduly harsh penalty” has been used in this context. In the bill, we raise a problem related to that. The fact is that the minimum penalty is increased to 120 days for a third offence. At first glance, that seems perfectly reasonable. However, the result of it is that a judge would be prevented from exercising any discretion in terms of modulating that penalty. In some cases, for example, the accused would lose his job as he would be prevented from serving his prison term intermittently. The difference between 90 and 120 days is not very great, in terms of the actual punishment, but the effect, needless to say, is that the judge loses part of his ability to modulate the penalty. Nothing prevents a judge from imposing a 120, 160 or 200 day prison term on an offender, where it is warranted.

As you were saying, Mr. Thompson, it's really a matter of striking a balance between extreme penalties, which yield no result whatsoever because they do not act as a deterrent, and the complete absence of such measures. As regards drug-related measures, the Quebec Bar's primary concern is the lack of statistical information that would establish whether or not this is a real issue, as well as the lack of scientific data with respect to the validity of the methods being proposed to resolve the problem.