Evidence of meeting #74 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was impaired.
A recording is available from Parliament.
10:10 a.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
Thank you.
Mr. Rosenthal, you made an interesting point about the whole issue of whether someone drove home, went inside, had a few drinks, and then somewhere down the line was charged with impaired driving, and that you could actually convict for that. Out of curiosity, how often do police show up and knock on the door of someone's home and ask that person to take a breathalyzer for no reason?
10:10 a.m.
Representative, Criminal Lawyers' Association
Well, it may not be for no reason. Quite often the police get calls that there is some bad driving on the road, and with their obligation to investigate that, they show up and they do knock on the door. But on this post-drinking conduct, the example I gave was showing up at the door. Let me give you another example. Someone has an accident, and before the police show up or before the breath tests are administered, they consume alcohol.
10:10 a.m.
Representative, Criminal Lawyers' Association
Why would they do that? People do a lot of stupid things, but just because they do something like that--
10:10 a.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
Listen, you're talking about the extreme examples of situations versus the general rule of law, and I suppose you're much better at being able to do that than I am, I'll grant you that. My responsibilities, I feel, as an elected representative in the House of Commons, are to try to apply a general rule of law and not to get too carried away with extreme examples, because what ends up happening is we have no law at all, because every single law has its boundaries, whether it be very good on the one hand, or very bad on the other.
So the assumption of using extreme examples makes it difficult, at times, to be able to pass legislation, if that's all you're going to do. I appreciate the fact that Mr. Comartin did ask you a little about the increase in the severity of the penalties, and you did comment then as to what the impact would be. A substantial part of the legislation actually is that in fact there will be some new and tougher legislation that will be enacted if the bill were to pass.
Maybe I'll get your opinion on this. What is suggested here is an increase from $600 to $1,000 for a first offence, 14 days to 30 days for a second offence, and from 90 days to 120 days for a third offence. You tell me. I don't find those to be significant with respect to the increase in penalty. It's certainly an increase, but not significant.
10:15 a.m.
Representative, Criminal Lawyers' Association
Let me try to answer all of your questions.
The difficulty is that by making a general law or a general rule, as you say, you're going to convict innocent people. I invite you to find another provision in this Criminal Code where people who are factually innocent--someone who did not commit the offence.... They may have done something that you don't like or society doesn't like after the offence. We don't punish those people in the criminal context in a free and democratic society.
As far as the penalties--
10:15 a.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
We have lots of examples, though, of innocent people who are convicted of other crimes, so--
10:15 a.m.
Representative, Criminal Lawyers' Association
That's right. And do we want to really create a piece of legislation that is forcing judges and taking away their job to analyse the facts--
10:15 a.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
It's an interesting argument to get into. If we were to take the opposite approach that you're suggesting--that is, that it's not going to stop someone from drinking and driving, it's just going to make them fight it more--in that case we haven't seen a decrease. When you look at these numbers and you look at the example of 67,000 drivers charged with impaired driving, I would suspect that some of them were charged inappropriately, no question about that. But would you suggest that most of them were charged inappropriately?
10:15 a.m.
Representative, Criminal Lawyers' Association
No, I'm not saying whether they're charged inappropriately; I'm saying we have courts to determine whether or not they are guilty. Anything that forces a judge to convict someone who is factually innocent is a dangerous piece of legislation, sir.
10:15 a.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
I don't disagree with you, but at the same time, it's theoretically impossible, I would suggest, to pass a piece of legislation where that isn't going to happen.
10:15 a.m.
Representative, Criminal Lawyers' Association
I guess it comes back to one of the basic premises of criminal law, which is that it's better that 10,000 guilty people get off than one innocent person ever get convicted.
10:15 a.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
Well, would you suggest the opposite, that if 9,999 get off and one gets convicted, it therefore makes better legislation?
10:15 a.m.
Representative, Criminal Lawyers' Association
I think it's a very dangerous system where we're going to convict innocent people at the expense of not getting some people--
10:15 a.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
I do think our dialogue shows--for me, anyway--that it's difficult to presuppose one extreme or presuppose another extreme, and that in fact what we're trying to do is find a balance.
10:15 a.m.
Director, Criminal Lawyers' Association
Except for one thing: there's no evidence before you that the guilty people are being acquitted because of the current law you have. In other words, if there's a body of social science that says--
10:15 a.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
Mr. Burstein, how do we ever know whether someone is guilty if they are found innocent?
10:15 a.m.
Director, Criminal Lawyers' Association
Because you'd have reports by crowns or police. And I'm not talking about people who get off on a technicality. I'm talking about people to whom the judge has said, “I believe you are not guilty.”
Where's the suggestion that people are coming before you and saying that we have 200 cases of factually guilty people who were allowed to walk away on the basis of the judge shouldn't have believed them? Unless you find that, you just shouldn't fix it.
As my grandfather used to say, don't fix it if ain't broke. This part isn't broke, so don't fix it.
10:15 a.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
And as my grandfather said, don't let people innocent walk away if they're guilty.
10:15 a.m.
Voices
Oh, oh!
10:15 a.m.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Dykstra.
Mr. Rosenthal was asked by Mr. Dykstra why people would want to drink after an accident. As a former police officer, I know why: they want to mess up the reading on the breathalyzer. If they're impaired, they want to mess up the reading on the breathalyzer. If they take that drink right after an accident, they know that their lung capacity and the amount of alcohol in their system right then will give a false reading.
So that's one way of, if you will, trying to beat the breathalyzer, even though they may be impaired. That situation is one that every police officer in the country faces today and did face 20 and 30 years ago.
Mr. Bagnell.
June 5th, 2007 / 10:20 a.m.
Liberal
Larry Bagnell Liberal Yukon, YT
Thank you.
Thank you for coming. It's been very helpful, actually.
My interest and my question will be directed toward driving with drugs, and catching those people.
Mr. Rosenthal, I think you actually convinced me on your point. I don't want to talk about the possession one, although I'm getting convinced on that too, actually.
Not to the bar--because you didn't comment on this--but to the others, I want to change the attitude. It seems as though your attitude is to find one little thing wrong, whereas I want to have the positive attitude. We want to try to save one or two children's lives by catching some impaired drivers.
I agree, of course, that we want to stop all impaired drivers, and for all reasons, but right now we're having an effect on alcohol-impaired drivers. The next step with drugs.... And I'm not sure why people keep mentioning marijuana. There are all sorts of more serious drugs that can impair people more seriously. So I'm talking about all drugs.
We have a huge problem with drugs and alcohol. Over half of crimes are committed under the influence, or to get substances, so we've had quite an effect. Every criminal expert that's come to us has said that the chance of getting caught is a major deterrent. So if we can do something at all on drugs that works technically, legally, I think we're going to stop some people, including children, from getting killed.
My understanding of the provisions would be that you would do some type of roadside test. It would be different from alcohol, because cocaine and all the other drugs are different from alcohol in their effects. But you would do some type of test that would then allow a blood test that would hopefully, scientifically at least, be accurate enough to get convictions and prove that someone was impaired.
Is that not how the system would work? Would that not save a number of lives, as does the similar system we have for alcohol? What I'm looking for is a way to try to catch these people and save lives. I'm not looking for the reasons why we can't do it but for how we should go about doing it.
10:20 a.m.
Associate Professor, Department of Criminology, University of Ottawa, As an Individual
The first thing to be noted in terms of alcohol consumption is that prevention has played a huge role. There have been huge prevention campaigns. Health Canada has funded… One of my Master's level students prepared a list of all the programs funded by Health Canada in the schools. The department has conducted a huge campaign, which is absolutely fantastic, to explain to people how alcohol can impair one's ability to drive. If someone says to me that as a result of the police presence and the risk of receiving a penalty, the number of cases has gone down, I would answer that—and I have been teaching at the university for more than 25 years—when I present that part of the course and ask students whether they know which roads to take if they have been drinking, every single one of them is able to name one road the police do not patrol. If people are relying on the police to convince people not to drink and drive, they are making a mistake. People will simply find which road to take, because police officers cannot patrol every single road—unless we want to end up in a police state.
Prevention campaigns have really been the most effective way of reducing the number of cases and changing people's behaviour when it comes to drinking and driving. Similarly, it is clear that when it comes to preventing all causes of impairment… In terms of medications, as I was saying earlier, France has made tremendous progress by putting pictograms on product labels that people can refer to.
Certainly, if we want there to be fewer accident victims, people's behaviour has to change. It is not by bringing in tougher penalties that this will happen. People's behaviour changes primarily through prevention and through lighter, but more frequent, penalties, because people realize that there is a risk they will be caught and hit with the usual penalties: having their car seized or receiving demerit points. The objective is to target as many people as possible who drive impaired.