Justice Committee on Feb. 23rd, 2009

[The Chair, Conservative, Ed Fast]

Okay. Let's try that. Thank you.

Mr. Ménard, three minutes.

[Réal Ménard, Bloc, Hochelaga, QC]

I have only one question. It won't take but a minute. You have stated your views clearly and I truly believe that committee must lean toward administrative suspension, rather than toward criminal law reform. This is the recommendation that I plan to make to my caucus. However, I would like to understand your analysis of this situation. What factors have contributed the most to lowering the number of alcohol-related car accidents? We've seen the statistics. The numbers are down in all provinces, including Quebec. In your opinion, what is the leading contributing factor to this decline? Has your association done any kind of study?

[Jan Westcott]

Yes, we have. There are a couple of things I would say. One is that in the last 15 years there has been a much more concerted effort by all governments, and I stress the words “all governments”. I'll give you an example.

Over that period of time, more and more provinces have introduced administrative roadside sanctions; it seems to be something that's there. It differs from province to province, and the rates differ from province to province. In some provinces, if you get stopped, you get suspended for 12 hours: you park your car and come back and pick it up the next day. In other provinces it's 24 hours. What we're all trying to do is make these more common so that the public understands the risks of getting caught.

There's another thing that I think has been happening, and some recommendations are coming out of the CCMTA. It's important for province A to know what has happened in province B. People move across this country a great deal. If they have a record in one province, even if it's only two or three of these roadside administrative suspensions, in the next province that person is going to live in you want to know what that history has been. So the administration of these mechanisms is being improved and tightened up. One of the next biggest things that has to happen is that we have to convey this to the public so that the driving and the drinking public understand their chances.

One of the other things is that there were no records if you were stopped two or three times. No records of that were kept.

One of the recommendations now being taken up by a number of provinces is that if you get stopped, let's say, three times in two years for over 0.05 but below 0.08, that says something about you as an individual and you as a driver. It says that maybe that's the wrong kind of trend and maybe there needs to be some intervention there.

I think there's a whole series of these things that have happened, largely below the public radar. It's good governance, in a sense, and it's efficiency within the programs themselves that I think are bringing about some better success.

[The Chair, Conservative, Ed Fast]

Thank you.

Ms. Leslie, three minutes.

[Megan Leslie, NDP, Halifax, NS]

Thank you, Mr. Chair.

First, I have a very quick question. Do either of you know how much it actually costs to install one of these interlock devices?

[Phil Downes]

Our representative in the Yukon, whom I spoke with just this morning, tells me that it's $500 to install and then you have to pay a $100 monthly fee. The $500 may be a little on the low side; I've heard it's as much as $1,500.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

Mr. Downes, I, myself, don't know this case very well, but do you have an update on the two-beer defence case? Can you tell us where that stands?

[Phil Downes]

You're referring to the legislation that to a certain extent effectively removed what was called the Carter defence.

[Megan Leslie, NDP, Halifax, NS]

Right. It's been appealed.

[Phil Downes]

It's in a variety of stages. Essentially it's being challenged at the trial level. For example, in Ontario we now have dozens of different trial decisions speaking to whether or not that legislation should be applied retrospectively or on a forward basis. It's a patchwork quilt.

No superior court or court of appeal that I'm aware of has ruled on that issue yet. And in terms of its constitutionality, again, I'm not aware that there's been any authoritative decision on that either. So it's going to work its way up slowly, and it's taking time.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

This is my last question. You stated earlier that it wouldn't matter so much where we set the limit, at 50 or at 80. But wouldn't your counselling of your client change if it were a Criminal Code offence versus an administrative law or a regulatory offence? If regulatory was 50 and Criminal Code was 80, wouldn't you say that your counselling would change?

[Phil Downes]

Yes, I would.... I don't mean to say it doesn't matter, because it does matter. I'm just saying that for our purposes we wanted to talk about what the implications would be. So yes, clearly, depending on whether it's a provincial scheme or Criminal Code consequences, we're giving our clients different advice.

[Megan Leslie, NDP, Halifax, NS]

What I'm getting at is it's a big deal to have a criminal charge against you.

[Phil Downes]

Interestingly, the big deal for the clients, though, is when can they not drive. In many ways, they don't care too much about the cost, even the legal fees or the fines. The big issues are for how long are they not going to be able to drive and the stigma of it. We find that those are the two things clients are most concerned about, which is why we think there should be a coordination between the provincial and the federal.

If you get a 90-day suspension from blowing over 80, if you plead guilty to that, those three months do not come off your 12-month suspension. We think they should. Even if you plead guilty at the very earliest opportunity--and in some rural jurisdictions it may be once a month that court comes around--you get no credit for having already been suspended for that three-month period. And we think that's fundamentally unfair.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

Those are all my questions.

[The Chair, Conservative, Ed Fast]

Next is Mr. Norlock.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much.

My questions will be mostly for Mr. Downes.

I'm not a lawyer, and I'll try not to play a Philadelphia lawyer with you, but because I only have a few minutes, I need short and succinct comments or answers from you.

As far as you saying the principles of justice.... You went on to say that it really doesn't mean much, that it's more business. And that was questioned. Some of us might think it would be a Freudian slip, but I think you answered that question.

One of the other questions that keeps coming up is about your clients and the tremendous burden some of these things would be on potential clients, that they would be concerned about having an impaired driving charge or a criminal charge, which was brought up by my NDP friend. Then you mentioned challenges.

But when we're dealing with impaired driving, we're talking about the victims of impaired driving, and they don't have a court of appeal because they're dead and they don't have challenges before the Supreme Court because they're dead. The whole idea behind looking at this impaired driving has more to do with the victims rather than the people committing the offence. That's why the public, not the people who are charged and convicted but the average citizens out there, the people who elect us to come here, want us to keep looking at this issue. They drive the political agenda.

I wonder if you could comment on the fact that, yes, it's serious to have criminal offences against you, but at the same time the whole idea is to protect the public from a crime that might occur and that usually causes grave consequences.

[Phil Downes]

I was a crown prosecutor for eight years and I saw and spoke to those victims. So I know exactly what you're saying, sir. I would hope my submissions to you today reflect our genuine concern to stop repeat drinking and driving while at the same time not abandoning our charter and constitutional principles.

As a criminal defence lawyer, if the limit was 0.02, I would get more business. I hope it enhances the credibility of my submissions to you to say that we're not saying to do that, because we don't think it would be effective. So when I talk about ignition interlock, none of this is to minimize the impact these cases have on families.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

If I might, though, I would say that if you go along with that argument, then by raising it from 80 to 100, you'd feel better about it, because then it's higher, and it's more, so I think we have to be careful. I think the other witnesses mentioned that we're going to be told that some of the studies--we had two previous witnesses who are lawyers--indicated that in jurisdictions where there was a 0.05 there were significant reductions in motor vehicle accidents and fatalities, but then we're told, well, no, one's not criminal and the other is.

From a personal perspective, I guess, the argument is that it would be challenged more, so if it's going to be challenged more at 0.05, then as a lawmaker I'm asking, is it going to be challenged less if we raise the offence? Succinctly put--a short answer--would I be right?

[Phil Downes]

I think we sort of have it right now, and I think that 0.05 is dealt with provincially so there are consequences for it.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

But not in every province. Quebec has lagged behind. I was a police officer for 30 years. Quebec has always been soft on impaired driving, as far as convictions and enforcement go.

[Phil Downes]

I think we've sort of--

[An hon. member]

[Inaudible--Editor]

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on.

Is there another questioner from the government side?

Mr. Rathgeber.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Thank you for your presentation here today.

Following up on Mr. Norlock's questioning, I actually agree with you, Mr. Downes, that from a legal perspective it probably is irrelevant what the number is; it's going to be arbitrary. There are always going to be people who fall on one side of the line or the other.

What is of concern to me is consistent application across Canada, so I want your comments. Following up on the previous question, in provinces such as mine, Alberta, I believe that if one fails the roadside screening device, one is subject to a 24-hour suspension. I don't know if that translates to 0.05 or not. In other jurisdictions, it's a 12-hour suspension. In Quebec, I understand, there's no administrative suspension.

As a national trial lawyers' association, are you not concerned about unequal application of the law, and wouldn't that become equal if it were done by the Criminal Code?