Justice Committee on Feb. 23rd, 2009

[Greg Yost]

I will try to answer your questions.

I can't say exactly what the repercussions of administrative license suspension are, since the nine provinces that do issue suspensions follow somewhat different rules. British Columbia has just announced a series of tougher measures. If memory serves me well, a person who has his license suspended will be required to see a therapist if charged with an offence more than twice in five years. Other provinces, such as Newfoundland and Labrador, are charging drivers $50 to get their license back.

The Canadian Council of Motor Transport Administrators can provide you with all of the information to bring you up to date on where the provinces now stand.

[Réal Ménard, Bloc, Hochelaga, QC]

To your knowledge, no province imposes Criminal Code charges.

[Greg Yost]

Not to my knowledge. You were asking if anyone had done any studies on the effects of license suspension. I do not believe that our department has done a study like this. Several studies have been conducted over the years. Virtually all of them show that the majority of drivers want to keep their licenses at all costs. License suspension is therefore a very strong deterrent.

[Réal Ménard, Bloc, Hochelaga, QC]

I see. Without advocating any one policy in particular—I understand that this is the role of lawmakers— you maintain that administrative license suspension is a sound, effective measure.

A second measure that has been suggested is the mandatory introduction of breathalyzer ignition lock systems. If the committee were ever to recommend such a move, would it have to proceed by way of an amendment to the Criminal Code? Instead of having his license suspended, a person could agree to have his vehicle outfitted with a breathalyzer ignition locking device. In agreeing to this, the license suspension period would be shortened. Would such a measure be compatible with the Highway Safety Code or would some provision for this absolutely have to be made in the Criminal Code?

[Hal Pruden]

At present the provincial governments can run programs of ignition interlock, so that where a person has committed a Criminal Code impaired driving offence, the province can tell them that as a condition of getting their provincial driving licence back they must have an ignition interlock device. Parliament has amended the Criminal Code to say that in a province where there is an ignition interlock device program, if that provincial program allows you to enter, you might have a reduction in your federal Criminal Code driving prohibition, which currently, on first offence, is a minimum of one year. That could be reduced to three months if the person uses an interlock device. Some witnesses in 2008 suggested that this minimum three months could be reduced even further, so people would be encouraged right away to get on to the provincial program, rather than waiting three months in the case of a first offence, waiting six months in the case of a second-time offender, or waiting one year in the case of a third-time offender.

[Réal Ménard, Bloc, Hochelaga, QC]

Event though certain highway safety codes do provide for the use of ignition locking devices, the fact remains that this would still impact the sentencing under the Criminal Code charges. I understand that when ignition locking devices are ordered installed, judges and sentencing administrators will reduce the length of the sentence provided for in the Criminal Code. This is one area in which, to use Mr. Murphy's words, provincial legislation and the Criminal Code have been harmonized to some degree.

I do have a question, though. If all of these measures are effective, why enact a new Criminal Code offence? I would much prefer to work with the existing provisions of the highway safety codes. Here, you have given us an example of harmonization.

[Greg Yost]

As I said, some witnesses argued that the Criminal Code should immediately allow for this, if that is what the province wanted.

Furthermore, in keeping with what the provinces wanted, Bill C-2 aimed to bring in a certain degree of harmonization. In the past, the order had to come from the judge. Today, if the judge does not expressly prohibit this, the provinces are entirely free to decide if the person can enrol.

We are working with the provinces to come up with a formula that works.

[The Chair, Conservative, Ed Fast]

Mr. Comartin, you have seven minutes.

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

Thank you, Mr. Chair, and thank you, witnesses, for being here.

Let me pursue this line. When we went through this last year, there were criticisms of the provincial-level governments--that it was a patchwork, that it wasn't being systematically enforced even in the provinces that had the right to suspend and whatever other quasi-penalties they had. Has there been any improvement in that? There was some fairly harsh criticism that a number of the provinces had started down this road a number of years ago and were making very little progress.

[Greg Yost]

Are you referring to the 0.05?

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

Yes.

[Greg Yost]

Okay. Again, it's CCMTA that keeps track of what's happening in all the provinces. To my knowledge, no province has yet adopted the CCMTA's model program, which has a seven-day, if I recall correctly, suspension for the first time. But I do know that British Columbia, Ontario, and Nova Scotia have, over the past year, announced changes. In each case, the changes are making it closer to the CCMTA model, but no province has yet adopted that model. So there is definitely a patchwork across the country, and of course Quebec is the one province that doesn't have such a thing yet.

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

Is there any reason for optimism that we'll get some fairly standardized approaches across the country, and specifically in regard to Quebec, that they're going to move?

[Greg Yost]

If you're asking whether there is reason for optimism, well, with respect to Quebec's not being in it, it was proposed by the government that was re-elected with a majority, so perhaps it's back on their agenda. I don't know.

Over the years, with respect to young drivers and the zero tolerance, if I can put it that way, for young drivers with alcohol, that took a few years, but I do believe it's now universal. Every province has that. That was recommended by CCMTA. It's taking longer on the 0.05 standardization, but there has been a standardization on the zero tolerance for young people, so there may be some reason for optimism.

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

In the meetings you have with the provinces, I assume the territories are there as well.

[Greg Yost]

Yes and no. The territories are always invited. We certainly try to accommodate them by teleconference, but travelling expenses do keep their personal participation in a number of these meetings down.

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

Going back to the slow progress from the provinces—and I think Mr. Murphy was raising this, but I'm not clear—is it a question of resources, that they just don't have the resources to enforce the 0.05%?

[Greg Yost]

I don't know whether the resources are a problem or not. I mentioned in our remarks that to have an effect on impaired driving, the laws are one part. The level of enforcement is clearly a significant part. There is some concern that has been expressed in the past that some of the provinces are using the short 0.05 suspension even when the person is well over 0.08. So that's the other side of it.

Definitely there is severe pressure on the provincial courts to handle all the cases. So in regard to the 0.05, I think you'll have to ask the CCMTA what's slowing it up.

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

Okay.

Are there any studies of where it is being enforced—looking at other jurisdictions, whether it's Australia or one of the others? Has that had an effect on the number of cases that end up in court?

[Greg Yost]

My understanding is no, that when Australia brought in the 0.05, the number of charges remained approximately the same. The general BAC levels of people they were pulling over dropped. It seemed as though everybody had one drink or so less. So the people who might have been 170 were now 120, but they were still well above the limit.

One of the things is that there is really a limit as to how many charges an officer can lay on a patrol. It does take time—the two breath tests and so on—so you're off the road for quite some time doing that. Some concern has been expressed that they may be off the road handling a lower BAC driver instead of giving that person a short suspension and looking for a higher BAC driver.

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

In terms of your opening or earlier comments about reform of this part of the Criminal Code, I'm a big supporter of that, as I think you know, and not only of this part of the code but almost all of the code, because that quote could be applied to a number of other sections of the code that are incomprehensible when one tries to read them in conjunction with other sections.

In terms of activating the provinces to do more, would a simplified, clearer version of these sections help in the role we expect the provinces to play?

[Greg Yost]

I would think, yes. We work in our committee with the provinces on the Criminal Code provisions and what's causing difficulties, and it seems that every few months something new pops up in the courts. If we were able to eliminate some of the technical defences that do not address the central issues--were you driving, were you over 80--I would imagine that would have an effect upon the enthusiasm of the police to lay charges. We did know that the evidence to the contrary problem was definitely giving them difficulties, doing all that work and then having it thrown out. And if they aren't going to be tripped up over extraneous issues, then I imagine that would have an effect upon the willingness of the police to lay charges and on the prosecution's belief in their chances of getting a conviction. So I think both of those would certainly be helpful.

We do have probably the most complex code in the world on this issue anyhow.

[The Chair, Conservative, Ed Fast]

We'll move on to Monsieur Petit.

You have seven minutes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you for meeting with us this afternoon.

My comments will be directed to Mr. Greg Yost.

This is not your first appearance before the committee. We have had some discussions before. I want to be sure I understand your opening remarks clearly. I'm talking about the proposal to lower the BAC from .08% to .05%. Let me explain my question to you this way.

In Quebec, when a driver is sentenced, he loses his license for a period of up to 12 months, faces new fines, gets a criminal record and in some cases, because of that, cannot even travel to the United States. In some cases, if the judge so orders, he must install at his own expense an ignition locking device in his vehicle for a period of 12 months. For three years, he must pay the government extra for additional insurance—because the government is the insurer in Quebec. Lastly, if the government believes the person is an alcoholic, it orders new medical tests, which also means additional expenses must be incurred. So then, if you add up all of the Quebec government requirements following sentencing, even without counsel or without measures to speed up the process, almost everything that is needed is in place.

My question to you is one that is regularly put to Members of Parliament, particularly by members of the media. Imagine for a moment that you have been charged and that you plead guilty. You have injured someone, you have sustained an injury in a car accident and while you are incarcerated, you receive some compensation from the Société de l'assurance automobile du Québec, further to their no-fault insurance scheme. When I mention the Criminal Code to these individuals, they are quite confused. We need to try and sort this all out. A person charged with a criminal offence who has sustained an injury would receive some compensation while in jail in Quebec. As you know, this is a serious problem for us because it is a provincial matter.

Mr. Ménard asked you a very pertinent question. Whether the BAC is 50 or 80, people are still going to be just as upset. I have to wonder why you are proposing a BAC of 50 to us. Not that we do not need the BAC to be 50, but in light of what I have just told you about the system works at the provincial level, I would like to know what advantage you see in lowering the BAC limit to .05%?

[Greg Yost]

For starters, the consequences you spoke of would be more or less the same for all provinces. For example, an Ontario driver would pay higher private insurance premiums after an conviction for impaired driving. Everything you talked about would apply if the BAC limit was lowered from 80 to 50. The consequences would be the same.

I mentioned in my opening statement the possibility of establishing the legal limit somewhere between 50 and 80. Perhaps we could consider a summary procedure, a somewhat harsh penalty given that the individual in question does not pose the same threat as others. I do not know how the Société de l'assurance automobile du Québec would feel about a conviction based on a BAC of between 50 and 80. If Quebec opted to impose an administrative suspension, these officials would be fully within their rights to tack on additional sanctions, from an insurance standpoint. This has nothing to do with the Criminal Code.

You talk about injuries and terms of imprisonment. This is very serious business. Person will be charged under the Criminal Code and could have their license suspended for several years. The consequences in Canada are very serious. More than likely, in cases where the BAC is 80, we will see some of the toughest penalties ever imposed. Neither Australia nor the United States impose minimum $1,000 fines or one-year license suspensions. Again, I don't think we're going to be very successful if we impose tougher Criminal Code sanctions. There are no provisions in the Criminal Code covering cases where the BAC is between 50 and 80. It is up to this committee to decide if individuals who register in this range, who are more dangerous than persons who are sober, should also face criminal charges and if so, what sanctions would be appropriate.