Justice Committee on June 5th, 2007

[Paul Burstein]

I just wanted to say one thing.

Mr. Lee's example demonstrates the illogic of it. You're in possession because you didn't use the drug, right? The point is that if the whole point of the section is to stop people from driving while drugged, possession is actually counter-intuitive. You want to charge the person who has the bar receipt in their pocket, not the 24 of beer in their car, because they're not the danger; it's the one who has the receipt for the 24 but doesn't have the 24 any more. So your example makes perfect sense for why it's illogical.

Thank you.

[The Chair, Conservative, Art Hanger]

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, as you can see, the next action we should be taking is to withdraw this bill.

I will begin with a question for Ms. Beauchesne, and then I will have one for Mr. Burstein or Mr. Rosenthal.

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

She quotes your very words. As the member of the Bloc Québecois, Serge Ménard, so aptly pointed out during hearings on Bill C-16, bad laws make for very rich lawyers. And Bill C-32, like Bill C-16, is particularly bad.

[Réal Ménard, Bloc, Hochelaga, QC]

She quoted Mr. Ménard.

But don't confuse the two of us! It was Serge she was quoting.

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

Did you invite him?

[The Chair, Conservative, Art Hanger]

Order, please.

Mr. Ménard, you have the floor.

[Réal Ménard, Bloc, Hochelaga, QC]

It sounds as though some people are under the influence of alcohol here in Committee. The party is about to begin!

Ms. Beauchesne, when the minister appeared, he talked about two new tests—the standardized sobriety tests and the drug recognition tests. You seem to be saying that all of that will be very costly and that there is no evidence to suggest they will be easy to enforce, and could in fact be totally ineffective.

Two points that you raised in your testimony are of interest to me. You said that the most effective tests may be the simplest ones. You reminded us that roadside tests that measure reflex acuity, which are filmed and can serve as evidence, are probably the most effective ones of all. I would like you to say a little bit more about that. Perhaps we could table an amendment to the bill with respect to the national registry.

In your brief, which I read in bed last night, I noted there were a lot of references to removing people's driving licences as more of a disincentive than anything else. Representatives of the Canada Safety Council also talked about that. Again, perhaps you could talk about the merits of revoking people's driving licence and tell us how the national registry you referred to would work.

Those are my questions for you, but I have others for the fascinating lawyers seated next to you.

[Prof. Line Beauchesne]

Well, I won't go into it in detail, but I will address the issue associated with each of the points your raised.

I do agree that police officers have to be given the ability to force someone to take a reflex test. With respect to the first problem, as to whether the individual is fit to drive, I believe police officers have to be given that ability. Furthermore, the test has to be filmed, because if the individual decides to challenge the results, evidence will be available.

These tests already exist and studies show how they could be improved. They also show that there is a certain level of testing. Airline pilots take reflex tests and the same applies to them. I am not interested in knowing whether he was making love all night or whether he smoked marijuana; what I want to know is whether he is fit to fly a plane. So, the reflex test is intended to determine whether he is fit to fly a plane, whatever the reasons involved are. The same principle applies here.

As regards the national registry, the reason I mentioned it was in relation to the second problem—namely, repeat offenders. The fact is that the research shows that a great many accidents are connected to a small number of people driving impaired. An individual can be in one province, receive a penalty in another, and repeat the scenario over and over again. Where repetition is involved—and I'm not talking about repeated drug possession, but rather, of repeated impaired driving—I think there need to be rules or ways of ratcheting up the penalties.

[Réal Ménard, Bloc, Hochelaga, QC]

There is the Canadian Police Information Centre, or CPIC.

We are told that the Firearms Registry is consulted 6,500 times a day. You are talking about a registry that every police force in Canada could consult with a view to ascertaining whether an individual has a record of impaired driving—for whatever reason—provided there is enough there for it to be a concern. I guess your intention is for a police officer to be able to access that information quickly, is that correct?

[Line Beauchesne]

I haven't actually thought about how it would work. Furthermore, I do not know exactly how this system works in those countries that have this kind of registry. I always have one foot on the brake when it comes to the detailed procedure involved. I would have to take a closer look at that. What is important to me is access to the registry and what could be done with it. I am always afraid it could go the other way and be used for other purposes.

I would like it to specifically serve to identify individuals who repeatedly drive impaired. Thought has to be given to some way of ensuring that authorities will have the right to ask them to take a test to determine whether they have a problem related to a dependency or some other problem, and to require them to receive treatment or take some sort of action, until there is proof that the problem has been resolved. I stress, once again, that this would only affect a small proportion of drivers. So, that is the reason why I was proposing two solutions.

I would just like to come back, once again, to what was said initially: the studies are very clear in that regard. As was already pointed out, if I'm told that I will receive demerit points, that the cost of my insurance will go up, that my car may be taken away from me for 24 hours and that I will have to pay to get it back, because I am impaired…

[Réal Ménard, Bloc, Hochelaga, QC]

The effectiveness of the punishment is more important than…

[Prof. Line Beauchesne]

Such individuals will be careful. On the other hand, if they are threatened with prosecution, they will hire a lawyer and so the process begins.

[Réal Ménard, Bloc, Hochelaga, QC]

This is the positive aspect of this bill, about which we have reservations and are likely to have even more, having heard your testimony. Should what is known as the “two-drink defence” not concern us at a social level? We may have gone too far. As you say, this bill may erode the presumption of innocence in a way which is inconsistent with the freedom that we seek to defend. I would like you to talk a little more about that. Is there something that can be done in the medium term or is it irreversible, in its current form? From a social standpoint, it seems to me that there is something here we should be concerned about as lawmakers.

I am 100 per cent in agreement with Ms. Beauchesne's arguments. In terms of revoking drivers licences, I don't know whether, as lawmakers here in Ottawa, we could propose amendments to have an individual driver's licence revoked, while at the same time respecting the provinces' jurisdiction in that area. In terms of the “two-drink defence”, I think that we should be concerned from a social perspective. I would like you to suggest potential amendments. I'm not asking you to do that in terms of the legislation per se, but rather to tell us what you think we should do.

[Paul Burstein]

I guess it begs the question of why we have a criminal offence of impaired driving or drinking and driving. It's to prevent the risk of harm that anyone who has consumed alcohol and then drives poses to other drivers. The whole idea of the “two-drink defence” or “last drink defence” is that it calls into question the reliability of the science. It says that even though this machine, which took a test some time after the offence, suggests that the person has a level of alcohol in their blood that may make them a risk, it's wrong to presume that whatever the result was an hour or an hour and a half later necessarily reflects what the person was at the time of driving. In other words, they really weren't a risk at the time they were stopped.

So it's not just some technical defence. Technical defences in the drinking-and-driving context are, for example—and it happened, and Mr. Rosenthal can tell you all about them—that an officer didn't identify the machine properly or there was something wrong with the paperwork. Admittedly that's the lifeblood of criminal law, and whether you want to do something about that is another issue, but taking away a defence that goes to whether the person really was a risk of harm and may have been factually innocent, as Mr. Rosenthal said, that we have problems with.

[Jonathan Rosenthal]

And if I could add one thing, remember that there are two drinking-and-driving offences. There are impaired driving and over 80 milligrams. If someone exhibits physical signs of impairment, and the test for that in Canada is whether their ability to operate a motor vehicle is even slightly impaired, the police lay the charge. Generally when you're dealing with an over-80 offence, you're dealing with an offence where the police do not see physical impairment, where people's ability to operate a motor vehicle for whatever reason is not impaired.

So the police are always left with that option. And I think it's one of the things the Supreme Court of Canada pointed out in a number of decisions dealing with over-80, saying it doesn't just give carte blanche for people to drive drunk. There's still the impaired driving charge.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Comartin.

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

Thank you, Mr. Chair.

Thank you all for being here.

I want to thank Ms. Beauchesne and the representatives of the Bar who are with us today.

Have studies been conducted in the United States?

And I'm asking the same question of Mr. Burstein and Mr. Rosenthal. Are you aware of any legal studies in the United States—legal studies, not the statistical ones that you, Mr. Burstein, were so right in pointing out the error of following slavishly—from a constitutional standpoint, a Bill of Rights standpoint in the U.S., challenging these types of procedures and in particular the right of police to demand the invasive type of sample?

Let me just say to you that up to this point the information we have is that whatever challenges there have been in the U.S., they've been unsuccessful. So my second question to follow that up is that even if that is the case—and if there are studies that you're aware of, I'd like to know about them—do we have a different rights structure here under the charter that perhaps would imperil the latter part of those demands for invasive procedures?

[Paul Burstein]

Let me simply say that I don't think I can speak to that. Something like 34 jurisdictions in the U.S. have the DRE approach. They're 25 and zero, or something like that, in terms of the challenges, but my understanding is that you are quite right, that almost universally they have failed. I can tell you, more importantly, that having been a proponent of more than my fair share of constitutional challenges to legislation that this honourable House has passed, I wouldn't be optimistic about the chances of any constitutional challenge succeeding to this legislation, in terms of challenging the authority of the police to compel a driver to perform the sobriety test. It's a question of whether or not the results could be used as evidence in the trial.

I think there is some pretty strong case law--actually a case that I argued, one of the few successfully, where the Court of Appeal for Ontario said that compelled roadside sobriety tests can't be used as evidence in the trial. They can be used as evidence to give the police grounds to then make the next step in the process, but the real problem with these, I think, is that right now the reliability of the testing in Canada--that is, the training of the DRE officers--is perhaps a lot more questionable than it was in the U.S. when the challenges were brought. So assuming someone could sort of get together the evidence—and this is quite an undertaking financially for a litigant—and could demonstrate that the current status of the training of Canadian DRE officers is so unreliable that the tests as administered, in Canada anyway, don't really reliably establish anything, maybe the constitutional challenge would succeed. I still have doubts.

In other words, in the States they failed because they've had so many years of experience. The officers are reasonably reliable. The officers in Canada.... I commend to you an article in the Edmonton Sun of February 17, 2007, by Kerry Diotte, where he talked about the training program that's being used right now by the RCMP to train DRE officers. It's actually quite startling how unsophisticated and unstandardized it is. So maybe that would give rise to a successful challenge. I doubt it, though. I think you can pass this and not worry about that issue.

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

If I can go back to the issue of the admissibility of this, are we talking about a court saying this is irrelevant because it doesn't prove anything so we are not admitting it because of its prejudicial impact?

[Paul Burstein]

One of the things about DRE analysis is that it has to be administered almost perfectly by the officer. That's one of the reasons they talk about having to videotape the process. Forget about the response of the test subject, if the officer doesn't administer the test in the perfect standardized way he or she is trained, the results of the test are entirely fallible. The people who designed the test say so. This is not something a defence lawyer has conjured up.

That's why we're saying it's going to give rise to very lengthy and costly litigation. I will tell you right now, I wouldn't know of a self-respecting defence lawyer in the country where one of these cases came up who didn't challenge the reliability of the grounds used to make the subsequent blood or urine demand. That's the problem. It wouldn't be a constitutional challenge to the section. It would be a case-by-case challenge to the reliability of the officer.

If it were one constitutional challenge, you'd be okay, because it wouldn't be that expensive. You'd have one case work its way up and you're done. But you're talking about every case being a challenge.

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

My understanding is that in the U.S. in fact that's not what's happened.

[Paul Burstein]

No. In individual cases they still do challenge the reliability, very much so. In fact, they have full-blown jury trials on this stuff in the U.S., but on a case-by-case basis. That's where the American defence part takes a run at the reliability of this. It is not to say the law is unconstitutional, but the application in each case simply isn't sufficiently reliable.

I don't know if I'm making my point clear.

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

I have the same concern, Mr. Rosenthal, with your analysis of what is going to happen, because mine, quite frankly, is precisely the opposite, that we're going to see a substantial reduction in the number of hours spent in our courts on section 258. In terms of this, you were saying this type of approach of making it an absolute crime, an indefensible crime--is there no other experience we can look to any place else in the Commonwealth or in the U.S. or in any jurisdiction that has done what we're proposing to do?

[Jonathan Rosenthal]

I don't think any jurisdiction has passed a law, a criminal law, which puts such a burden upon an accused. But what I can tell you is every time they make the penalties harder for drinking and driving, people fight these things harder and harder. The most significant amendment in increasing penalties took place a couple of years before I was called to the bar in 1985, where they changed it from a three-year minimum suspension to one-year, not criminally, but through the Highway Traffic Act, and that created an industry of “impaired driving” lawyers in Ontario, which has steadily grown since then.

The harder the penalties, the greater the consequences of criminal convictions, the more people fight these things. So when you make the penalty harder, people don't say, “Okay, you've got me. I'll take my lumps. I'll get a criminal record. I'll make sure I can't be bonded. It may affect my travel to the U.S. When I get my car back after I don't drive for a year I'll have to install an interlock device, and my insurance is going to go up to $30,000 or $40,000.” They're not going to say, “Okay, you got me.” They're going to say, “Gear up. Do what you can.”