Thank you.
I appear on behalf of the Canadian Council of Criminal Defence Lawyers. We're a national organization, an umbrella organization of all the defence lawyers' organizations throughout Canada.
I am personally one of the vice-presidents from western Canada, from Saskatoon. I am not one of the two lawyers he was referring to in the article.
I was in that article; I'm disappointed you didn't refer to me.
I would like to start by saying that there's perhaps a suggestion that defence lawyers aren't concerned about drunk drivers. We're very concerned about drunk driving. Certainly it is a very serious problem, and we do not wish to diminish in any way the seriousness of the problem.
However, we would disagree with my colleague's suggestions that the acquittal of some accused drunk drivers is a major problem. Statistics can say anything one wants, but if we look at the statistics, the actuality is that most people plead guilty to drunk driving when they're charged with drunk driving.
These anecdotal suggestions that 50% of police officers in certain jurisdictions won't lay the charges are simply anecdotes. There's no effective way of really knowing that. Quite frankly, it's my perception that this is one of the most common charges laid, particularly in rural areas, by police officers. If you look at the jurisdiction I'm from, in the rural areas it's the number one charge that police officers lay.
Once again this is an anecdotal statistic, but it would my belief that 90% of people plead guilty to impaired driving. That obviously says something. It says that people do not believe you automatically get off simply because you pay a lot of money and hire a lawyer. Contrary to what my colleague says, the two-beer defence isn't some magic bullet. What happens in actuality—
And I must say I do a lot of this kind of work myself. In fact, that's what I'll be doing tomorrow—in Alberta, actually. The person in that case had a very similar defence to what's being described. But if one looks at it, one will see that out of the hundreds of calls that I get in a year, there are perhaps only 50 cases I might run a criminal driving defence on. And it can be for a wide variety of reasons, not necessarily how much they drank, such as some constitutional aspect of the way they were dealt with; whether or not they could be proven to be the driver; whether or not they could be proven to have been in care and control. There are many issues on drunk driving, not just how much the person drank.
This idea of the two-beer defence—that you simply tell the court you had two beers and you win—overlooks the fact that essentially 100% of the people who are charged with criminal driving offences are double-charged. They're not simply charged with driving while over 80 milligrams; they're also charged with impaired driving. If you're charged with impaired driving and a police officer has observed you to be driving badly, when they approach the car they smell an alcoholic beverage on your breath, when you're asked to exit from the car you use the door as a lever to get yourself out, and you stumble, you stagger, and you slur—that person in all probability will be convicted of impaired driving based on their physical symptoms, irrespective of whether or not they might be able to win the case if the charge were only driving while over 80 milligrams, because even if the judge has some doubt as to whether or not they might be slightly under the legal limit, the judge will believe, based on the symptoms observed by the officer, that the person was impaired.
The only person who has a reasonable prospect of winning a two-beer defence is someone who essentially appears sober. If they essentially appear sober, just maybe they're innocent. Is it such a bad thing that someone who might be innocent be found not guilty?
We do not have a problem with people being found not guilty. It's a very small number of the overall people who are charged who are actually found not guilty. Obviously, it is some higher percentage of the people who have trials. The 90% who plead guilty will all be found guilty. But the people who are contesting their charges are the people who obviously feel they're not guilty. It's difficult to know in any one case why the judge may or may not have found the person not guilty, because often the cases involve multiple problems with the evidence.
So in attempting to address a problem that we suggest doesn't exist with the changes that make, essentially, the accused person's testimony as to how much alcohol they did or did not drink of no evidentiary value, we have serious concerns about what may happen to the system over the next couple of years before this matter makes its way to the Supreme Court of Canada. Because it would be my respectful view that saying that you cannot testify that you did not have alcohol to drink as a basis for winning the case will violate both section 7 and paragraph 11(d) of the charter. I would respectfully submit that these provisions dealing with the two-beer defence will be found to be unconstitutional, and accordingly, the approximately 100,000 cases per year that we get in the system where these people couldn't use this defence because it was prohibited by statute—given that the Supreme Court then were to find it was unconstitutional—would cause significant chaos. It would be a very unsatisfactory situation. Is there any other comparable provision where you can say that the accused can't testify that they're innocent? I don't know of anything.
The example given of the rape-shield provisions is not a comparable example whatsoever. The rape-shield provision example, as to the restriction on the ability to cross-examine, has to do with evidence that is potentially not relevant in almost all cases. It's not an absolute prohibition, but it's close to it on the basis of lack of relevance to the case. Here, we're talking about a situation where hypothetically someone blows 200, but they also say they drank no alcohol whatsoever. This legislation would prevent the person from being acquitted even though they came to court, gave sworn testimony that they drank no alcohol, and the judge believed they drank no alcohol. Yet they still would be required to be found guilty unless you could prove what was wrong with the instrument, which of course you cannot do.
This idea that you should somehow be able to address the problem of the instrument is impossible. We've all had the situation where we tried to start our car, it wouldn't start, and the tow truck comes, takes it to the garage, and then the car starts. Well, you know that the car didn't start. But the garage can't tell you why it didn't start and they can't diagnose the problem, and they have the car to look at. What's an accused person supposed to do?
I expressed the reservation that on the one hand perhaps the courts won't let us look at the instruments. On the other hand, what if they do? How helpful is that to the system if every Intoxilyzer is busy being taken apart by experts for the defence to try to diagnose why it didn't give the result that was expected?
There is also, I believe, the false perception that we're using cutting-edge technology that's somehow super reliable. I personally own a Breathalyzer Model 900A. I own an alert device. I own other testers. I'm very familiar with the Intoxilyzer 5000. Quite frankly, about the Intoxilyzer 5000, to say that the instrument that's being used in Canada is not cutting-edge technology is the understatement. This is not some infallible instrument. It is a good instrument, but it is anything but infallible. In fact, the technology is almost as old as when I was taught by my colleague beside me. We're not talking about something that is new or foolproof.
The Intoxilyzer 5000 comes out in many variations. The variation that's being used in Canada is bordering on being obsolete as far as getting parts for it. That's how out of date it is. That's not to say that it's necessarily wrong in every case. I don't want in any way to be suggesting that. What I am suggesting is that it is not foolproof in every case, and to abdicate someone's liberty, if I could put it that way, to an instrument rather than to allow a judge to judge their testimony would be, in our respectful view, unfortunate.
With respect to scientific evidence, certainly we have some concerns about the reliability of drug evaluation testing, but quite frankly that's a matter that the courts will be able to evaluate. I would urge the committee not to necessarily accept that the accuracy of the ability to judge whether or not someone is impaired by drugs is as high as some statistics say, because there is certainly a lot of controversy about that. Having said that, I don't have anything further on that.
Moving on to the question of someone having a small amount of drug in a car and someone might get a one-year loss of licence, I would simply point out that when one looks at the magnitude of the problem for someone who loses their licence for one year in a rural part of Canada—because knowing that one of your passengers has in their possession a small amount of narcotic might cause you to lose your licence for one year and get a criminal record—it can have a devastating effect that may or may not, in your view, be disproportionate. I just urge you to consider that.
In closing, with respect to the licence suspensions that are presently handed out and just dealing with one aspect of fairness, at the present time a large number of provinces have administrative suspensions that occur automatically at the roadside, typically for three months, but it varies from province to province. It's a fundamental principle that you should not be punished for having a trial. The way the Criminal Code presently is, the judge doesn't have the statutory authority to take into account the administrative suspension that someone serves while waiting for their trial. I would suggest that out of fairness, if you have a trial and you lose, and some people do lose, the judge should be able to consider the time you have served on your administrative suspension when fixing the suspension that is mandatory under the code, which starts at one year. It needs an amendment for that to take place, and I would urge the committee to consider that as well.
Thank you.