Mr. Chairman and members of the standing committee, Mr. Pruden and I are pleased to be invited again to discuss impaired driving issues with you. I believe the clerk has distributed a Department of Justice paper entitled “Impaired Driving Issues”, which was prepared by Mr. Pruden and me. It's essentially the same document as we presented last year, updated to reflect the coming into force on July 2, 2008, of the impaired driving provisions of the Tackling Violent Crime Act.
We understand from the officer in charge of the RCMP's drug recognition expert, or DRE, program that the number of drug-impaired driving charges has quadrupled since the legislation came into force, which compels the suspected drug-impaired driver to perform standard field sobriety tests, and upon failure to participate in the DRE test.
The issues paper does not address the recent drug-impaired driving legislation and is restricted to alcohol-impaired driving. We are well aware that legislation is only one of the measures needed to reduce impaired driving. A coordinated approach, including enforcement, education, and treatment of those who are alcohol and drug dependent, is also important.
It has been an offence since 1969 to drive with a Blood Alcohol Concentration (BAC) greater that 80 mg per 100 ml of blood, commonly called over 80. That level was based on the scientific consensus at that time. Indeed, it was lower than the BAC limit in the United States which in many states was 120, before being lowered to 100, and, only recently, all states adopted over 80.
With respect to lowering Criminal Code BAC, experts agree that, at the 50 BAC level, there is a degradation of skills used in driving compared to the driver's sober state. Also, over 50 is correlated with increased risk of collision, death and injury particularly for young drivers. For this reason, many jurisdictions, for example Australia and most European states, have established a legal limit of 50 and sometimes lower. However, those states do not apply the minimum fines and terms of imprisonment for repeat offenders that Canada applies to those who are over 80.
Generally, being over 50 except in the case of recidivism is punishable by a fine. Canadian traffic safety experts, however, disagree whether the most effective way to deal with this elevated risk in the 50 to 80 range for drivers is by provincial legislation alone or if in addition the Criminal Code should make it an offence to drive with a BAC in the 50 to 80 range.
Enacting an over 50 Criminal Code offence would not override provincial over 50 laws. Currently, when a person is charged under the Criminal Code with being over 80, the provinces impose an immediate administrative license suspension that is completely independent of the results of the criminal charge. Also, all provinces except Quebec issue a short administrative license suspension for drivers in the 50 to 80 range. If Parliament enacts an over 50 offence, the provinces could continue to issue administrative suspensions for those drivers.
There would be two possible options to establish an over 50 offence. Lowering BAC from 80 to 50 is simplest as police and prosecutors would not need to change any of the procedures with which they are familiar. However, the impact of such an offence on the criminal justice system cannot be ignored. Persons who accept a short provincial suspension for being over 50 will likely contest vigorously a criminal charge where the minimum fine is $1,000 and there is a one year's prohibition from driving. Alternatively, a separate offence could be created with a lower range of penalties while maintaining the existing over 80 offence.
With respect to random breath testing, or RBT, 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, which are necessary before the officer can form the suspicion that there is alcohol in the driver's body and demand a screening test. These drivers would be more likely to be deterred if they knew the officer could simply demand that they provide a screening test. 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. In that regard, the results of the introduction of RBT, which I've set out in the annex to the paper, are noteworthy: in Ireland, a 23% decrease in fatalities; in New Zealand, a 30% decrease; in Queensland, Australia, a 35% decrease. It must be noted, however, that RBT has generally been introduced as part of a series of measures that have included lowering BAC to 50 and increasing enforcement, making it difficult to isolate the effect of RBT.
The success of RBT is such that it's been recommended by the European Commission as part of its strategy to reduce fatal car accidents by 50%. RBT is now in force in 22 member states of the European Union.
With respect to innovative practices in use in other countries, we are most familiar with American practice. Some American states have been having some success with DWI--driving while impaired or intoxicated--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 a breath test on a screening device or perform poorly on standard field sobriety tests 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 for either test because the police are gathering physical evidence that already exists. 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 prove that the person was driving and that the equipment was working properly and had been operated properly.
As you know, our 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. Although the driver is being detained, the detention is justified as a reasonable limit because it is relatively brief and the results of the screening test cannot be used in court. Very careful consideration would have to be given to whether requiring a test on an approved instrument without the right to consult counsel would be consistent with charter rights. The necessary charter analysis would need to consider the objectives to be achieved and how to minimally impair the rights of the accused persons who would be providing evidence that could be used against them without the benefit of legal counsel.
This question is likely to become important in the near future. There are now very compact instruments that can act as both an approved screening device and as an approved instrument: some are in use in California, and the alcohol test committee is evaluating whether this new generation of equipment can meet Canadian standards. What works in California's climate may not work so well at roadside on the prairies in January. If these instruments can meet the ATC's strict standards, it would be possible to have the screening and the approved instrument test done at roadside. However, there would be little if any benefit if the officer at roadside may have to wait for hours while the driver tries to consult counsel.
I will not say much about sanctions because the Tackling Violent Crime Act included increases in penalties. The Province of Manitoba has raised a concern that it is an aggravating factor for a person to have a BAC over 160, so there is an incentive for a person with a high BAC to refuse to provide a breath sample. In the United States and Australia it is usual to have penalties tied to BAC and to have the maximum penalty apply to a person who refuses to provide a breath sample.
Finally, I would point out that much of our work as officials has consisted of responding to decisions made by the courts and advances in technology. The “breath testing on an approved instrument” provisions of the Criminal Code are almost 40 years old, with amendments authorizing the use of screening devices added in 1979.
There has been a series of amendments over the years. As a result of this series of amendments and the complex jurisprudence on virtually every section, the law is very difficult to understand. In 1991 the Law Reform Commission report on recodifying criminal procedure stated:
The law governing the procedure for the investigation and proof of alcohol- and drug-related driving offences is unnecessarily complex. It is the product of fragmentary responses to scientific advances in the area as well as hardening public attitudes demanding more effective detection and prosecution of offenders. Some provisions, we believe, have become virtually unreadable.
The issues paper suggests that consideration of the legislation as a whole with a view to making it simpler could be advantageous. If legislative reform is recommended as a result of this review, it may be appropriate for Parliament to assist the courts in understanding Parliament's intent in making any changes that may flow from this review by a preamble or the inclusion of principles. Parliament has done so, for example, in the sentencing provisions of the Criminal Code and the DNA Identification Act.