Justice Committee on Feb. 28th, 2008

[Frank Hoskins]

As I understand, in Bill C-2 they have amended the refusal section now to increase it.... It's a new offence, I believe. Perhaps you could help me with that.

[Greg Yost]

The only thing done in Bill C-2 is to have a 0.8 causing death or causing bodily harm. This remains the same penalty whether you're convicted of refusal or over 0.8 in a simplicitor case.

[Frank Hoskins]

There's also a new provision for refusal causing bodily harm, and death, as well. So the incentive to refuse.... There are more consequences, I suppose.

[Greg Yost]

That was intended to address the incentive if there was an accident. This suggestion, which is done in the United States, is to encourage the person to actually provide a breath alcohol sample, because when they consult their lawyer, presumably, and they say, “What happens if I refuse?”, he says “You're going to get twice as big a fine as if you comply.”

That's the American model that I mentioned.

[Frank Hoskins]

Mr. Murphy, I'm not quite sure how to answer that question. I don't know why it causes people to refuse, whether it's because they're concerned about going over, or they're concerned about being in an accident, but anything that can assist in taking away that incentive may be helpful. But you always have to be concerned with going too far, and then infringing into self-incrimination, as well.

But for the most part, if there's a greater punishment for refusal, I don't know what, if any, effect that's going to have, because I don't know why people are refusing, to be perfectly candid.

[The Chair, Conservative, Art Hanger]

Do you have a comment?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Well, the other three little points were including 80, 0.8, rather than “in excess of”. I take it you obviously support that.

[Frank Hoskins]

Yes, and right now, as I said earlier, it's been my experience that the police do not charge in that range. They're charging to 0.10 as a result of the presumed error in the accuracy of the machine. If it were going to change, I don't know what, if any, effect that would to have. It says “include 0.8”. Are the police still going to continue to lay 0.10 at that level? I don't know.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman. Something very interesting occurred this afternoon, and it has gone almost unnoticed. The two groups with the most extensive expertise on the causes of intoxication have not recommended changing the criminal system, bringing down the BAC from 0.08% to 0.05%. I find it rather significant that the Canadian Council of Motor Transport Administrators and the Canadian Centre on Substance Abuse do not want to see...

You would like to implement random tests; I understand this. You want us to take more preventative action on the roads and have devices such as anti-locks. I also agree with Mr. Murphy. But I am not convinced, I have not heard enough arguments that would lead me to...

I will have a question for Mr. Brown later on. One of your colleagues, Ms. Nadeau, also studied psychology.

It is clearly obvious that targeting repeat offenders and changing behaviours has nothing to do with criminal law. With all due respect to my colleagues across the way, very often this government tries to change behaviours by way of criminal law, and we know very well that it is not the appropriate tool to use in this type of situation. I'm not saying that we should be soft, or hesitant when it comes to repeat offenders who are compromising road security. Obviously, we would never hold such an opinion.

My first question is for the Canadian Centre of Substance Abuse, and the Canadian Council on Motor Transport Administrators. I would like you to explain to me very clearly why you do not want to see the limit go from 0.08% to 0.05%. Unless I have misinterpreted your comments, that is my understanding.

[Dr. Douglas Beirness]

This has been an issue that has been on the table since I first started working in the impaired-driving field 25 years ago. Even back then, when we looked at the evidence there was a lot of interpretation to what was out there. It was not very clear-cut. Not everyone is impaired at a level of 50. You will find impairment on some tasks in laboratory situations; there's no doubt about that. Not everyone is impaired on all tasks at that level. Imposing criminal sanctions on those people just doesn't seemed justified. When you get to a level of 80, yes, virtually everyone shows impairment. That's the level that seems appropriate for imposing criminal sanctions.

Are there reasons to do things with people who are between 50 and 80? Yes. There are enough of them that have sufficient level of risk on the road and sufficient degree of impairment that you should get them off the road to send them a message. It's an early-warning system. Should you do things with people who repeatedly do that? Yes. You should increase the sanctions and you should get them into an assessment, and possibly a treatment or a rehabilitation program. The graded response to impaired driving based on blood alcohol concentration just makes so much sense to us that simply having a level at which it is criminal and a level at which it is not criminal just doesn't make sense to us.

[Réal Ménard, Bloc, Hochelaga, QC]

I also have a question for Mr. Brown, but I would like to hear the answer of your colleague from the Canadian Centre on Substance Abuse.

[Paul Boase, Co-Chair, Strategy to Reduce Impaired Driving, Canadian Council of Motor Transport Administrators]

As Mr. Beirness has said, there are two issues. One, you don't want to unduly burden the police, the prosecution, or the transportation agencies at a level that may be less significant than hitting the criminal level.

Second is to take a tiered approach. If you can get to them early, catch them doing this, and do an assessment, you may prevent them from going to that higher level. But you have to be able to keep the records. That's why the CCMTA model keeps that on the driver record. So if there is an assessment they will know how many times you've done that, and that will be considered.

Mostly it's about taking a tiered approach to this problem.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you.

Mr. Brown, we heard Ms. Nadeau provide a testimony similar to yours, and I was very much impressed by its relevance. You have repeated a few of the points she raised, including comments on psychology and neurocognitive factors. We cannot use criminal law to change behavioural patterns.

I would like you to elaborate further on your point of view so that it is accurately reflected in our report, without your needing to claim copyright, obviously.

[Thomas Brown]

Ms. Louise Nadeau works with me; we are a team. Indeed, according to our research, there are two arguments that we make in the scientific debate on why people are resistant to current treatments and forms of intervention. It is not a matter of explaining all of the phenomena, nor suggesting that everyone is the same. Rather, we must entertain the possibility that, most likely because of the over-consumption of psychotropic drugs, there are people who suffer significant deficiencies and are less able to change their behaviour.

As such, and I'm not talking about the majority of people, there are those who almost unconsciously find a way of putting themselves in the situation to repeat a certain behaviour. Despite the sentences and fines, they will do this. Some display mental deficiencies that reduce their ability to remember treatment guidelines or apply techniques to control their alcohol consumption.

There is another more innovative piece of information. Bearing in mind our research—research always involves probabilities—some people have a way of responding to stress, which is that some experiences can cause severe anguish for some, making them feel extreme humiliation, extreme anxiety, and that is enough to convince them that they will never do the same thing in the future. This does not have the same effect on some other people. We ask ourselves the question as to why some individuals are unable to understand a clear social or legal message being sent to them by their loved ones, to the effect that they must not repeat a certain behaviour once they have been convicted. These people lack sufficient emotional memory to understand that they must change their behaviour to prevent reliving this anguish.

[The Chair, Conservative, Art Hanger]

Mr. Ménard, your time is up.

[Réal Ménard, Bloc, Hochelaga, QC]

Do I have time to ask another question? I have absolutely no short-term memory.

[The Chair, Conservative, Art Hanger]

If there's another round we'll give you an opportunity, sir.

Mr. Comartin.

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

Thank you all for being here.

I'm having a battle with the Bloc over the 0.08 and 0.05.

Mr. Beirness, Mr. Boase, and Mr. Quaye, you've heard evidence--and we heard it at a previous panel--that enforcement in Canada of 80 is really 100. I would like to know if you agree that the real level in Canada is 100. If we lower it to 50, do we not go to the same situation--out of a sense of caution by police officers--and really have a 70 level because that's what's going to be enforced? Do you agree with me that as far as we know, everybody at 70 is impaired?

So I have two questions really. Are we impaired at 70, and do you agree that we only enforce at the present time at 100?

[Dr. Douglas Beirness]

Do we enforce at 100? That's an item for data analysis.

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

Have you done that analysis?

[Dr. Douglas Beirness]

I have looked at data from a long time ago, and yes, you'll see charges between 80 and 100 in the data that comes forth. Most of them are between 160 and 170. That's the average.

So are we enforcing 110? Not very well. We're getting the worst ones off the road. That's all we're able to do, get those people who are grossly intoxicated, grossly impaired with BACs of 160 and 170. That's the best we're doing.

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

In my years of practice, I never had one under 100.

[Dr. Douglas Beirness]

They are around. You will see them.

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

We're talking very small percentages. We're talking 1%, 2%, 5% at a maximum.