Justice Committee on Feb. 7th, 2008

[Robyn Robertson]

Yes. If the volume is going to double or triple, then the resources we're currently spending would have to essentially do the same, I would imagine, to support that.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Thank you very much.

Ms. Nadeau, I would like to ask you the same question.

[Louise Nadeau]

As a researcher, I can't answer your question adequately. However, I think it's worth looking at what France has done in this area. The French have installed detectors to control speed. When the French exceed the speed limit, they receive a contravention and a photo in the mail.

At a recent scientific conference—I should point out here that I haven't read the documents and that our researchers will have to verify the quality of this information—it was revealed that the number of accidents involving alcohol had declined. It was also stated that this number had fallen to such a degree that the longevity of the French had been altered. I was a professor invited to Bordeaux, and when I presented the data, my colleagues there told me that, the main challenge in France was to keep people alive until the age of 40. People were dying in car accidents, but the situation changed after the age of 40; they lived well. I brought this question up with Herb Simpson, who has long been the director of the Traffic Injury Research Foundation. He told me that France's road safety record was worse than Canada's. So you have to consider the facts in perspective.

However, I would like to remind the committee of the importance of controlling speed and risk-taking as factors in reducing the number of deaths and accidents on the roads. In the Department of Transport report chaired by Mr. De Koninck, Mr. De Koninck, who is a mathematician, recalled that speed was the number one problem on Quebec roads, ahead of even alcohol. A cascade effect was also noted: when speed is controlled and suppressed, the rate of alcohol-related accidents also declines. The translated English version of that report will be sent to you soon.

As we've also studied the speed question in my lab, I'm completely comfortable with that statement. I will also remind you that, as long as Canada and the United States market faster and faster cars, there will be another type of problem. That was an “editorial” comment; you can make of it what you will.

[The Chair, Conservative, Art Hanger]

Thank you, Madame Nadeau.

Very quickly, Mr. Griffin.

[David Griffin]

My concern with the proposition that we determine the limit based on the resources of the police or prosecutors is that it's a slippery slope. We can always start increasing the limit, because we can always claim that we don't have the resources to enforce it properly.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

I'm calling for more resources.

[David Griffin]

Okay.

This morning we discussed the issue of 0.05 versus 0.08. When I was a Breathalyzer technician, we would have a session as part of our training where we were all taken into a room and we would measure alcohol in scientific measuring beakers. Each day, different students would be the drinkers and other students would be testing them. In any given session, not one of the students would drink more than approximately eight to ten ounces of alcohol. That was in the period of an hour, with a small amount of food at lunch time.

I was surprised at what the blood alcohol levels were during that training. I expected them to be a lot higher than they were. I actually cheated; I went out for lunch first and had one or two drinks before the process. But my highest reading was 0.05. I was shocked at how I and other students in that program were affected by the relative amounts of alcohol we had drunk versus what the actual readings were.

I think an exercise, as we discussed, would be for this committee to actually go through that process of consuming some alcohol and having the test. Some of you perhaps have more tolerance than I have, I would surmise—

[Tony Cannavino]

It wouldn't be hard for you.

[David Griffin]

But in all seriousness, in terms of answering this question, I think it would give you a different perspective on what those blood alcohol limits actually mean.

[The Chair, Conservative, Art Hanger]

That's what you get for drinking Crown Royal.

Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

I'm going to ask a few questions.

I understand the resource issue, but for me, the number of impaired driving charges that are laid, the difficulty with the whole process.... I've been in law enforcement. I've arrested people for impaired driving. I've had to wait for an RCMP officer to show up because I didn't have the roadside Breathalyzer device. All of that happened. It's several hours from the time that happens until this process leads to the evidence to lay a charge, and so on. We don't need to get into those details.

I'm just wondering if, rather than adding more resources, there's something we can do in the legislation to make the laying of the charge and getting a conviction more efficient. I'd be curious to hear anything about that from any of you.

I have another question. I'll just put both questions out there.

From the perspective of post-MVA, there's obviously the issue that when there's been a collision and there's been serious bodily harm.... We know you have to have reasonable and probable grounds to ask for a sample when you have people who are seriously injured. Sometimes that's a loophole--the officer can't get the reasonable and probable grounds to get a blood sample or a breath sample.

I also know of situations where people who were experienced enough have actually left the scene of an accident and proceeded to a drinking establishment to start drinking to destroy evidence that they were impaired at the time.

I'm just wondering if you could speak to some of those things.

I think those are technical loopholes that need to be closed up in the legislation. Obviously we have the presumption of innocence and some other charter rights. I'm wondering if there's anything you could advise this committee about that might tighten up some of that legislative framework, so those loopholes aren't so available, without jeopardizing or risking people's rights to a fair trial.

[Tony Cannavino]

You'll remember very well the problems we have to face every time we arrest somebody for impaired driving. It's so low. We're talking about 50% of people being convicted, because of the fact that they jump a lot on technicalities.

For instance, as I said, the two hours is so quick. It goes so fast, by the time we get to the scene and witness what's going on and what has probably happened. Within the two hours we have to, first of all, charge a person, then the person has to call his lawyer, and then we proceed with it. And sometimes we're far from headquarters or from the detachment. So it's not logical to keep it at two hours.

The other thing that would be very helpful, as we said, is random testing. It could be done with an alert, and you know how it works. You stop people on the highway, and there's a huge difference. As to the suggestion Mr. Griffin made earlier to test with a Breathalyzer, the committee should do that. It's not about drinking; it's to see the difference between different people. Certain people can drink four or five ounces of alcohol and you don't even know they have had a drink, compared to person who has one ounce and is on the floor.

So for us, on the highway, if we had the power to stop a car or have those roadblocks and go with random testing, that would help us a lot.

[The Chair, Conservative, Art Hanger]

Is there anything else you would like to add?

Go ahead, Madame Nadeau.

[Louise Nadeau]

I would like to comment on the manifestation of intoxication. In fact, what my colleague is speaking about is tolerance. When people are dependent on alcohol, they have developed tolerance. As a result, they do not look drunk. However, when you look at the reflexes of these people, they're a really big danger on the road because of their reaction time.

What we're speaking about on the road is the following. If there's a threat on the road, one needs to be able to integrate many decisions at the same time. For instance, there's a car coming and it's threatening me. Do I need to accelerate, go in the ditch, put the brakes on, or do whatever? That involves complex decisions for the brain. Being drunk is exactly that. Those people who have no outside sign of intoxication are incapable of that complex process.

On the other hand, I would like to remind the committee that a young drinker may in fact experience drunkenness, because when the blood alcohol level is increasing, you feel drunk, but in fact the reflexes are still there. That's important to understand. They look drunk, but if you test them on perception or on reaction time, they're not as bad. So in fact they're not as dangerous, even though they will look more drunk.

On the other hand--and I remind you if you're drinkers--when the blood alcohol level goes down, at the end of a party, for example, you don't feel drunk. You feel as if you weren't. But then you're in danger, because if you are tested, the BAC will be high. And if you're tested on reaction time, which is the key thing on the roads in having the behaviour that will prevent an accident, you will not be good.

So our subjective experience is treacherous.

[The Chair, Conservative, Art Hanger]

Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you.

Mr. Chair, I didn't get what I thought was a clear response to the second half of my question, which was on the post-MVA aspect and maybe tightening up the legislation for getting a sample post-MVA or getting something so that if somebody goes to the bar and has a drink after being involved in a MVA, that's grounds to reasonably believe they probably should be convicted.

Maybe, Mrs. Robertson, you could have a chance at that.

[Robyn Robertson]

I would say that from what we saw from the lawyers survey, the two things that are most likely to result in acquittal are evidence to the contrary and charter issues. Evidence to the contrary appears to be a rather substantial hurdle in some jurisdictions, like Quebec, and charter issues appear to be substantial hurdles as well. So these are the technicalities you were talking about.

There are a lot of things being done. For example, in California the roadside breath test is actually an evidential test. So that precludes the officer from having to go back to the station to do yet another test that would be admissible in court. They do it roadside, and it's admissible in court. There are automated paperwork systems. There are several things that can be done and that some jurisdictions are looking at to speed up the process and make it easier to arrest and overcome all the hurdles. But generally what you'll see is that there are going to be challenges: they didn't have reasonable probable cause; they didn't have proper grounds for making an arrest.

The charter issues that are the biggest problem are section 8, section 9, and paragraph 10(b); that's search and seizure, arbitrary detention, and retain and instruct counsel. Retain and instruct counsel is the biggest charter issue facing lawyers in impaired driving cases.

[The Chair, Conservative, Art Hanger]

Mr. Griffin, I see you'd like to ask a question.

[David Griffin]

One of the recommendations we have is that if there's a motor vehicle accident, that should be adequate reason for an officer to administer a random roadside test, as opposed to having to go through the process of collecting the evidence to get that test, along with the roadside testing.

On the notion of the hard-core drinking driver, we have to be very careful. With all due respect, of the 440 people I tested, I would be equally concerned facing on the road the 19-year-old boy who blows 0.103 and can barely stand and walk, compared to the 55-year-old business person who wakes up at that reading before they go to work. Each is a danger, but I don't think we should suggest that one is more dangerous than the other.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Calkins.

Of these 50,000 charges laid over a year, what is the average age?

[Robyn Robertson]

Generally your drinking drivers are aged 24 to 40. I haven't looked at the 50,000 cases that Statistics Canada broke out by age, but according to the research they're generally between 24 and 40. There is a push for zero BAC tolerance for young drivers because, due to their age and inexperience, they are a greater risk for crashing, even at low alcohol levels.

[The Chair, Conservative, Art Hanger]

Mr. Holland.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Thank you, Mr. Chair.

Ms. Robertson, you mentioned other jurisdictions and some actions they had taken to be more effective in allowing convictions. In other words, there would be fewer hoops to go through, fewer errors, and fewer people getting away on technicalities. Has that resulted in higher conviction rates? You said the conviction rate here is roughly 50%. What are other jurisdictions looking at? Have there been meaningful successes in those changes that we're seeing it in conviction rates?

[Robyn Robertson]

I think it's too early to tell, certainly with the 0.05 sanctions, but I'll give you two comparison jurisdictions.

If you look at Quebec, their conviction rate is 41%. This is a jurisdiction that is more likely than any other to enforce the 0.08 limit. They plead fewer cases, they have huge impaired driving and repeat offender caseloads, and their conviction rate is 41%. You can see that they're trying to do what the law intends and they're struggling to manage that.

If you look at the Atlantic region--and we've grouped the provinces together--they have a conviction rate of 75%. They have 90% of their cases at 0.120 and over. They also have smaller caseloads. For example, in the Atlantic region the average crown would have an impaired driving caseload of 100, whereas in Quebec they would have 150.

So we see that the jurisdictions that appear to be doing really well aren't. Jurisdictions like Quebec and Ontario that are trying to enforce the lower BAC at 0.08 and not plea cases and resolve them, as was intended, are struggling with much lower conviction rates.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Obviously we want to go after those with the highest BAC limit. I think it makes sense to target young drivers with either zero tolerance or a much lower threshold. Given what you just said, that going after those at 0.05, 0.06, or 0.07 can really clog up the system, I'm wondering how much safer we're making the roads by going after those people.

Mr. Griffin, you've had experience in this. Can you tell me about somebody who tests at 0.05, as you did that day, and their response time, compared to somebody who is not getting enough sleep or using their cell phone on the road? Use some other comparator so I can get a sense, at 0.05, where that person is relative to some of the other dangerous activities that people might be engaging in on the road.