Thank you, Mr. Chair. Having a first name that's a common last name often results in my being referred to as Mr. Mitchell. For the record, I'll say that actually MacLeod is my last name.
I would echo Ms. Thomson's comments with regard to both appreciating the opportunity to share our perspective here today with this committee on this very important issue, as well as indicating that our written submission, which has been provided to you, does encompass a broad range of perspectives from lawyers who not only occupy different roles in terms of being either crown attorneys or defence counsel but also encompass practitioners from across the country who operate in urban and rural environments and in public and private practices.
I sit as a provincial branch chair on the executive of our criminal justice section, and I can well attest to the lively debate and discussion that goes on amongst our group in coming to conclusions and recommendations that we present in our written submission to you. Indeed, I can say personally that in the ten-plus years I've had a substantial criminal law practice, I have operated and currently operate as both a defence lawyer and as a prosecutor. On some occasions I have stood on both sides of the courtroom on the same day.
I'd like to preface our main commentary by reiterating the common ground that I believe everyone in this room shares, and that is that the best interests of our society and of our citizens are served in reducing the incidence of impaired driving.
No numbers or statistics that we may see bandied about on this important issue will do really any justice to the value of a human life that might be saved if you, as a committee or our government, are successful in employing legislative changes or changes in policy that reduce the incidence, the frequency, of impaired driving on our highways.
We may represent a group of lawyers from across Canada, but we're all citizens, we're all members of the community, and no one would stand in the way of something as obviously beneficial to our society as a reduction in the amount of impaired driving and the tragedies that can often result from it.
However, and as you'll see from our submissions, the measures we seek to employ to accomplish that goal must not just seem to be things that would reduce impaired driving or look like they might do so; they should and must demonstrably do so. These measures should and must be rationally and factually connected to the results we desire. They should and must be measures that respect and balance the fundamental rights of all citizens that are enshrined in our charter. They must not confuse a perhaps understandable desire for retribution or for an increase in conviction rates. It must not confuse those concepts with a reduction in impaired driving rates.
The position specifically is outlined in our fairly substantial written materials, and I don't propose to utilize our remaining time in going through each of those in any particular detail. I would like to highlight, though, a few of our points, and perhaps points that haven't been touched on by other witnesses here this morning.
In relation to an overall perspective, it's our position that each of the proposed amendments or sections in Bill C-32 invite a substantial amount of charter scrutiny, and as a result invite substantial and perhaps in some instances even a paralyzing amount of litigation. To anyone who might suggest that the criminal justice section's concerns about these proposals show perhaps a defence counsel bias, I can certainly say that in its current form these amendments are a defence lawyer's dream, at least from a trial volume perspective.
As a lawyer whose practice encompasses the defence of impaired driving cases, I can certainly say from a purely professional and self-interested perspective that I can see in these proposals many months, if not years, of substantial litigation in the pages of Bill C-32 as it currently exists. However, the public interest prevails in the Canadian Bar Association's perspective on these issues, and the criminal justice section perspective in particular. Thus, in our conclusion, we state that every effort should be made to try to implement measures that might reduce the incidence of impaired driving to avoid encouraging or causing a torrent of litigation and the negative impact that would have on the administration of justice generally through the vastly increased demands that litigation would place on our criminal courts across the country.
The increased demands tie up resources, funds, and time that can be devoted, in our view, to measures that more materially deter impaired drivers. Those are measures that keep them off the roads in the first place. Those are the measures that will ultimately most directly save lives. Those measures are accomplished through enforcement. It is our view that the perceived risk of getting caught trumps any perceived risk or reward in terms of what might happen after someone is caught. It is that perceived risk of detection, of getting caught, that ultimately will best serve the interest of reducing the frequency of impaired driving in this country.
On the issue of drug recognition experts, the use of roadside testing and later testing, and as well on the issue of eliminating or curtailing evidence to the contrary defences, I'll touch on just one part of our submission in that regard. In our view, those items should be non-starters, essentially without mandatory audiovisual recording of the events that are related to those measures. An audiovisual recording should be a condition precedent to any contemplated enshrinement of these provisions in the Criminal Code.
The ability to record these things is already widely distributed. In our view, it's not so much a technological challenge as it is a commitment to devote appropriate resources to setting up frameworks for audiovisual recording of the activities of roadside testing, drug recognition experts involved at later testing, and items related to eliminating or curtailing evidence of the contrary defences. A commitment to complete audiovisual recording of those items should be mandatory, in our view.
By their very nature, the activities of drug recognition experts, regardless of how well trained they are, involve significant subjectivity, and they cry out, in our view, for audiovisual recording. In our view, the availability of an audiovisual record of the activity of drug recognition experts, roadside testing, and later testing would significantly deter many from perhaps rolling the dice and taking their chances at trial. I can say from personal experience with my own clients that there's nothing like seeing themselves on the big screen to bring home the reality of the situation to a client.
In our view, the availability of an audiovisual record might help reduce the anticipated deluge of litigation on these subjective drug recognition experts' testing. Indeed, if the types of testing that these drug recognition experts undertake are as accurate and legitimized through training to the extent that we have heard from certain witnesses, then certainly an audiovisual record of the process would only serve to confirm that fact and offer assurances to the public and to the profession in that regard.
With regard to audiovisual recording and the elimination or curtailing of evidence to the contrary defences—the so-called two-beer or bolus drinking defences—the provisions in Bill C-32 shift the onus to accused persons to produce evidence that tends to show that the instrument or machine, or the operator of that instrument or machine, is in error. The provisions additionally limit greatly what types of evidence an accused person can adduce in support of the position that the machine is wrong or in error or that the operator is incorrect or in error. This, in our view, makes the defence in that situation virtually moot absent the availability of an independent audiovisual record of the process. An accused person is hardly going to be in a position many weeks or months after the fact to call any evidence that tends to call into question either the operation of the machine or the activities of the operator, unless there is an independent record of what the machine did and how the operator operated it. In our respectful view, that requires more than just a checklist that the operator may have filled out or checked off and more than just a slip of paper that the machine may generate in its own self-testing mode that says, “I've tested myself, and I'm working fine, thank you very much”.
There is widespread availability of the technology at police stations and detachments to do this. Where that capability doesn't exist, it's our view that there should be a commitment to make it available. In order for there to be any meaningful defence available to an accused person to call evidence that tends to show these things, we have to allow for an after-the-fact, independent appraisal of what occurred at the station with the operator and with the instrument or machine.
Last, I'd like to touch briefly on the portion of our submission on the proposed new offences that involve offences of, in the vernacular, “over 80”, causing death or bodily harm or refusal when an accused person knows or ought to have known that he or she had caused an accident that resulted in severe bodily harm or death.
We see those provisions as significantly problematic. It's the view of the criminal justice section that to equate the maximum penalties—life in prison for offences that involve actual proof of impaired driving versus, simply, evidence that the person has a reading of over 80 milligrams of alcohol in 100 millilitres of blood or has refused to provide a sample—with moral blameworthiness in those circumstances is problematic and certainly invites significant charter challenge. We would suggest that it is not the reading of one's blood alcohol that “causes” death or bodily harm or causes the accident that causes death or bodily harm; it's the impaired ability to operate the motor vehicle that is the causal factor in those circumstances. And as we've pointed out in our submission, the virtually universal recognition that impairment of one's ability to drive occurs at readings of 100 milligrams of alcohol in 100 millilitres of blood really negates the necessity or efficacy that one might suggest would be achieved by adding an offence of over 80—again I put it in quotation marks—“causing” death or bodily harm.
Even more problematic, in our view, is the addition of an offence of refusal to provide a sample wherein death or bodily harm is involved. As pointed out in our paper, any time you import an objective test in those circumstances, which requires proof that the person knew or ought to have known that death or bodily harm resulted, that is problematic in the extreme. At the time, a person might refuse to provide a sample wherein death or bodily harm has resulted. That's obviously a time when a serious accident has taken place and persons who are asked for a sample may be injured or suffering from shock. That obviously may foreseeably impact on what they know or ought to have known in the circumstances, and it raises significant problems of proof.
Indeed, looking at it a little further, whether a person at the time they're asked to provide a sample, which obviously is in a time period that is close in time to when this accident would have taken place...there's a fair question to be asked whether they're even in a position to assess whether their operation of a motor vehicle “caused” an accident as opposed to simply that they were involved in an accident. Those are two different situations, two different sets of criteria involved.
I thank you again for the opportunity to present a few of the aspects that are raised in our written submission. As you know, our written submission goes into further technical detail regarding case law and other aspects of the legislation that the criminal justice section finds problematic.
It is certainly a worthy societal goal. There's nothing in our submission, nor in my presentation here today, in which we wish to suggest that a reduction of the incidence of impaired driving is not a worthy endeavour. By the same token, we would suggest that these provisions overall do not provide a rationally connected set of circumstances in which the ultimate goal—a reduction in the amount of impaired driving on our highways—can reasonably be expected to be achieved.
I'll end my comments there and look forward to any questions you may have.