Justice Committee on Feb. 28th, 2008

[Greg Yost]

Well, that's unfortunate, because my remarks are focused on the paper that we prepared.

Mr. Pruden and I are well aware that progress on impaired driving requires a coordinated approach, including enforcement, education, treatment of those who are alcohol- and drug-dependent, and federal and provincial legislation.

[The Chair, Conservative, Art Hanger]

Mr. Comartin has a point of order.

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

Mr. Chair, I just checked with the members, and none of us--that's me and the three sitting beside me--got the brief.

[The Chair, Conservative, Art Hanger]

It was sent two weeks ago, I'm advised, through electronic mail.

We'll follow up on that point, but we do have Mr. Yost presenting now.

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

Perhaps it was during the election scare period?

[The Chair, Conservative, Art Hanger]

Irrelevant.

Go ahead, Mr. Yost.

[Greg Yost]

In any event, Mr. Pruden and I are not experts on toxicology or on social science research. We rely on the advice of experts in those fields. The paper is therefore restricted to the possible amendments to the Criminal Code. It makes no recommendations and is intended to assist the standing committee in its deliberations by discussing the issues as they're seen from a legal perspective.

As for dropping the blood alcohol content (BAC), experts agree that a driver with a BAC of 50 milligrams is less able to drive than a sober person who takes the wheel. In addition, a BAC of 50 increases the risk of accident, death, and injury. However, experts do not agree on the most effective way of mitigating this higher risk, whether it be by way of provincial legislation, or making it an offence under the Criminal Code to drive with a BAC of 50 to 80 milligrams.

Making it an offence to drive with a BAC in excess of 50 would not prevent provinces from taking action. Now, if a person's blood alcohol concentration is higher than 80, a province can immediately suspend a driver's licence, regardless of the outcome of the criminal charges. Most provinces are now proceeding to suspend licences of those found driving with a BAC between 50 and 80.

If legislators make it an offence to operate a motor vehicle with a blood alcohol concentration higher than 50, provinces can still maintain the right to suspend drivers' licences. There are two ways of creating an offence to drive with a BAC of 50 milligrams or higher, but bringing the illegal limit down from 80 to 50 milligrams would allow police officers and prosecutors to leave their current methods unchanged.

And yet, a minimum fine of $1,000 and a prohibition from driving for one year could be perceived as unduly strict for drivers whose BAC is between 50 and 80. A separate offence could set out less stringent fines and prohibitions. It would allow police officers to take action as they see fit, lay charges, or write up a ticket. If a ticket is issued under the Contraventions Act, the offender will not have a criminal record that would be detrimental to his career, or prevent him from travelling.

With respect to random breath testing, there is research indicating that many impaired drivers are able to avoid a demand for a breath test when stopped by the police, because the officer does not detect the smell of alcohol or symptoms of impairment. These drivers would be more likely to be detected under RBT, which is expected to have a deterrent effect. Nevertheless, it is probable that RBT would ultimately have to be justified under section 1 of the charter, as RBT requires detention of the driver.

The Oakes test requires that there be proportionality between the objective and the limitation. The salutary effects must outweigh the deleterious effects. In that regard, the results of the introduction of RBT in Australia, New Zealand, and the Republic of Ireland, combined with the fact that RBT or an approved screening device is immediately available--it only takes a minute or two--are encouraging.

We caution the standing committee that RBT is not a silver bullet. It is most effective when it is part of a high-profile campaign, with visible enforcement, that increases the perception among drinking drivers that they will be stopped and required to blow.

With respect to innovative approaches in use in other countries, we are most familiar with American practice. The Americans have been having some success with DWI courts, modelled on drug courts, and with using electronic monitoring to ensure that those who are prohibited from driving will be detected. However, these programs are expensive and require an elaborate infrastructure.

In the United States, persons who fail the screening test are required to provide a breath sample on an approved instrument for use in court. The American courts have held that assistance of counsel is not needed because the police are gathering evidence. Indeed, a BAC under 80 will exonerate a person, while a BAC over 80 does not, in and of itself, result in a conviction, as the prosecution must still show that the person was driving and that the equipment was working properly and had been operated properly.

As you know, the Supreme Court has held that it is constitutional to require a driver to provide a roadside screening test without the person being given the right to counsel. Officials have only begun to consider whether requiring an AI test without the person being given the right to counsel could survive a charter challenge. The major benefit would be to accelerate the determination of whether to lay a charge, and to free the police to go back on the road. However, administrative convenience is not an acceptable justification for an infringement of a charter right. Moreover, one of the main reasons the Supreme Court upheld roadside screening was that the ASD results could not be used in court.

I will not say much about sanctions because Bill C-2 includes increases in penalties. We are aware of the concern that the ignition interlock provisions in the code are unduly restrictive and should be made more affordable and available earlier to encourage greater use. The interlock example illustrates the need to ensure that the Criminal Code sanctions work effectively with provincial programs by encouraging drivers to get their licences back rather than discouraging them so that they drive while prohibited.

The standing committee should be aware that in the United States it is normal to have penalties tied to BAC and to have higher penalties for a person who refuses to provide a breath sample than for a person who is convicted on the basis of the breath sample. It provides an incentive for the driver to comply with the demand.

Finally, I would point out that much of the work we do as officials has consisted of responding to decisions made by the courts and advances in technology. The breath-testing provisions of the Criminal Code are almost 40 years old, with major changes made in 1979, with the introduction of screening devices; in 1985, after a comprehensive review by the Department of Justice; and in 1999, after a review by this committee. With the changes regarding DRE and evidence to the contrary just passed in Bill C-2, we have another set of major changes coming.

As a result of this series of amendments, the current edition of breathalyzer law in Canada is three volumes--about 12 inches thick--and contains 26 chapters and more than 300 topics. We are aware that other countries do not find it necessary to include such detail about how the breath test will be conducted or to prescribe timelines that must be respected. The paper suggests that it may be time for a reconsideration of the legislation as a whole, with a view to making it simpler and, in particular, for Parliament to assist the courts in understanding Parliament's intent in making any changes that may flow from this review.

Parliament has provided principles to guide the courts in the sentencing provisions of the Criminal Code, in the Youth Criminal Justice Act, and in the DNA Identification Act. Such principles could be included in any legislation that may flow from this review.

Thank you.

Mr. Pruden and I will be pleased to answer any questions.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Yost, from the criminal law policy section of the Department of Justice.

Now I'll open the floor to questions.

Mr. Murphy.

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

Thank you, Mr. Chairman.

Mr. Langille, I noticed that you stumbled and said “abstract”. A forensic person saying “abstract” must be like a Liberal saying good things about a Conservative budget.

I want to ask you a couple of questions about your very informative suggestions. We're here from the federal side, and I think everybody should know that we're here as guardians of the Criminal Code, the old beast that it is. Your suggestion about including 80 is something we can do; I think it's clearly something we can do. The issue of using a definition of breath alcohol instead of blood alcohol is also something we can do.

When we get into the provincial regimes and the issue of 0.05 per hundred leading to suspensions and detection, and all those things, it's not as easy for us. Obviously, we can make recommendations—but I do want to stick to what we can do.

In light of what Mr. Quaye said about interlocking devices, do I understand correctly that your committee would have anything to do with approving interlocking devices?

[Dr. Robert Langille]

This is actually rather new to me. Currently we evaluate and recommend equipment to the minister to be included in the approved lists in the Criminal Code.

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

So you do have that authority?

[Dr. Robert Langille]

Yes—or we have the expertise.

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

The scope.

[Dr. Robert Langille]

How it would actually work seems to be something that still needs to be worked out, but we could review the standards that have been set. If appropriate, we could then look at individual interlocking devices and see whether they meet the standards and essentially publish a list of those that meet the criteria to a high standard of scientific accuracy.

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

Are you mandated to review them? Who sends them to you to look at? Do you do this on your own?

[Dr. Robert Langille]

No, and as I understand it, that's not really the thrust of this proposal.

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

Not at all, but I do want to emphasize interlocking devices, because it might be something we can do. In the presentations, which were all very clear, there is language that.... I'll go right to Mr. Beirness, who said the devices were grossly underutilized. Mr. Quaye was talking about some of them not being approved or that there should be some help in that regard.

If they're being grossly underutilized, is it an issue of budgeting—which I think the groups spoke of—or is it an issue of it not being part of a sentence, or is it an issue of money?

Who's best fit to answer that question?

We've parsed from your series of briefs the different levels of drinkers with impairment problems; I understand that. We're talking about people with repeat impairment problems, people who would probably benefit or, at least, be less harmful to society if those devices were used. But there seem to be a number of road blocks here.

Mr. Pruden.

[Hal Pruden, Counsel, Criminal Law Policy Section, Department of Justice]

In 1999, at the recommendation of this committee, Parliament looked at amending the Criminal Code to take into account the fact that some provinces at the time were already using ignition interlock devices. Parliament began by saying that first offenders could have a reduction in their federal Criminal Code driving prohibition if they used the provincial interlock device under the provincial program.

Subsequent to that, many provinces now have a provincial program for interlock device use, allowing drivers an early return to driving even during their driving licence suspension or during their federal Criminal Code driving prohibition. But it is a provincial program that is being utilized.

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

Why is it being grossly underutilized? That's really what I'm asking.

[Hal Pruden]

It may be underutilized because of the fact that some people feel they don't want to spend the money or can't afford it. Other people may simply not want to have an interlock.

Maybe Dr. Beirness could talk about the underutilization.

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

Thank you.

I'm going to save the last for you guys, the people who have been in the trenches.

Mr. Hoskins, let's get your statement on the record clear. I take it that you'd be in favour of random breath tests or roadside testing. You can answer that. And would you think it would be effective to have a higher penalty for refusal as opposed to compliance? Would you support including 80? And would you support breath alcohol as a definition, instead of or alongside blood alcohol?

Those are four questions.

[Frank Hoskins]

How many questions were there? I want to write them down.

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

There were four. This is how we work: there are four questions and about a half a minute to answer.

[Frank Hoskins]

Would you repeat the first question for me, please?

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

There was a suggestion that if people refused to give a sample, they should be given a higher penalty than those who complied in giving a sample and then were found guilty.