Justice Committee on Feb. 25th, 2009

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is meeting 5 of the Standing Committee on Justice and Human Rights on Wednesday, February 25, 2009.

You have before you the agenda for today. Please note that we have allowed 15 minutes at the end of our meeting to debate Mr. Ménard's motion on adding “social condition” to the Human Rights Act. I understand that Mr. Storseth also wants to move forward with his motion on a human rights review.

Today we are continuing our study on impaired driving. That's why we have the witnesses here today.

First of all, we have with us representatives from the Canada Safety Council, those being Emile Therien and Raynald Marchand. We also have with us the Insurance Bureau of Canada, represented by Dennis Prouse and Robert Tremblay; the Canadian Police Association, with Charles Momy and David Griffin; and finally, the Criminal Lawyers' Association, with Joseph Di Luca and Jonathan Rosenthal.

Gentlemen, welcome. I believe you've been told how much time you have to present. Most of you have 10 minutes. If you can, restrict your comments to that time, because we have a lot of questions we want to ask.

We'll start with either Monsieur Tremblay or Mr. Prouse.

[Dennis Prouse, Director, Federal Government Relations, Insurance Bureau of Canada]

Thank you, Mr. Chairman.

I'll begin. I'm the director of federal government relations for the Insurance Bureau of Canada. With me is my colleague, Robert Tremblay, our director of road safety and special projects.

I want to thank you and the committee members for inviting us here today.

It will probably be easier for everyone if I speak in English, and my colleague, Mr. Tremblay, will speak in French.

IBC is the national trade association for Canada's home, car, and business insurers. We provide employment for over 106,000 Canadians coast to coast. Our members paid over $6 billion in taxes last year to the three levels of government and paid out in excess of $20 billion to help Canadians rebuild their lives after tragic accidents.

We feel very strongly, Mr. Chairman, that our industry needs to be about far more than just taking in premiums and paying out claims. This is why, for a number of decades now, IBC has been at the forefront of road safety and injury prevention issues.

In fact, it was over a generation ago that the insurance industry began speaking out very loudly in support of a crackdown on impaired driving. As the committee members will know, that was a time when attitudes towards impaired driving were remarkably different than they are today. Great progress has been made, but as I'm certain we will hear today, a great deal more remains to be done.

We also led the charge on seat belt use, again at a time when attitudes towards seat belt use were worlds away from where they are today.

About a decade ago we began leading the campaign on graduated licensing at the provincial levels. That was very controversial at the time. It is now widely accepted as being good public policy. That has acted significantly to cut road deaths and injuries amongst the 16- to 19-year-old age group.

Some of you may know that we've been very actively involved in a campaign on issues surrounding driver distraction.

Over the last two years, other issues on which we have been active include medically at risk drivers, an issue on which we testified in front of a Senate committee last year, and the issue of driver fatigue.

Operation Red Nose--some of you may know of this--is very much a favourite charity of ours, one that we think delivers tremendous value to the over 100 communities in which it was active over this past year. It may well operate in some of your ridings.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Speak more slowly; you're going to kill the interpreters.

[The Chair, Conservative, Ed Fast]

We want to make sure the translation comes through clearly, so could you just slow down a little?

[Dennis Prouse]

That's the fault of the Chairman, who says we only have 10 minutes.

Operation Red Nose is a favourite charity of ours, one that we believe does deliver tremendous value to those 100 communities. Some of you are aware of those communities. This is a volunteer-based and community-based charity, and each year it continues to grow. It offers rides home to potentially impaired drivers during the holiday season. Our industry proudly supported Operation Red Nose last year; it's about $2 million per year.

Most recently, we became national sponsors of the Brain Injury Association of Canada. This group is doing tremendous work with victims of brain injury. One thing we've noticed is that most of the volunteers in the Brain Injury Association tend to be friends and family of those who have been brain injured, many of them in car accidents and some at the hands of impaired drivers. We see their struggle, and we know that many of the people watching these proceedings today are likely the friends and family of those killed by impaired drivers. We are extremely mindful of that as we proceed.

With that, I'd like to ask my colleague, Robert Tremblay, to talk about some of the specifics on the issues we're facing today.

[Robert Tremblay, Director, Road Safety and Special Projects, Insurance Bureau of Canada]

Mr. President, monsieur le président, I will start my remarks in French and I will then transfer to English, and I will try to keep the English translator going at a reasonable pace.

In the past 30 years, Canada has made major progress and significant changes in society's attitude toward the problem of impaired driving. And, in our view, that must be considered a major victory.

Despite that progress, however, the struggle against impaired driving has now hit a plateau, and additional progress will obviously be increasingly hard to achieve. If we look at the figures for the period from 1996 to 2001, compared to results for that between 2003 and 2005, we note a decline in the number of deaths among young drivers between 16 and 35 who died after consuming alcohol.

On the other hand, we note a 16.7% increase in the number of older drivers, particularly those 55 to 64, between those two periods. Progress has thus been achieved, but has now reached a plateau.

In view of this situation, one very legitimate question obviously arises. How can we achieve greater success? In the struggle against impaired driving, we must not confuse the objective with the tools we use to achieve it. Here in Canada, there is a very strong consensus in society that impaired driving is unacceptable and that driving with a blood alcohol concentration of 0.08 is criminal. However, there is no consensus at this stage that we should criminalize driving with a BAC of 0.05. Many people do not feel that that's necessarily the best route to take to achieve more success.

As director of road safety at the Insurance Bureau of Canada, I am of the view that, for the moment, criminalizing driving with a blood alcohol concentration of 0.05 is not the most effective way to achieve our objectives of reducing impaired driving on Canada's roads.

I'll now continue in English.

We believe there are other venues that should be further developed. In this presentation we will touch on three elements. The first one is better enforcement of the current 0.08 BAC. We will also talk about the implementation of 0.05 roadside suspension programs. Finally, I would like to talk a little bit about random breath testing as it is currently used in Australia.

A recent survey conducted by the Traffic Injury Research Foundation on behalf of the Canadian Council of Motor Transportation Administrators sampled 1,035 crown prosecutors and defence lawyers. It highlighted a number of issues with the way the current 0.08 criminal BAC is being enforced that deserve to be addressed.

The first thing the survey noted was that the conviction rates had dropped from 90% in the 1990s to 72% at the time of the survey.

The second element highlighted—although there were many things that were highlighted in that report, and I'm just citing a few—is that there is an imbalance between defence and crown resources, especially as pertains to preparation time. The defence has about five to six times longer to prepare. In other words, if a crown prosecutor has two hours to prepare for a case, the defence lawyer is likely going to have 10 to 12 hours. There is, therefore, a clear imbalance. The survey demonstrated that it's mostly due to the large caseload that crown prosecutors have.

On a positive note—and it might not necessarily have been highlighted, but we believe it is an encouragement to pursue this route—in the 1990s a study was conducted showing that at the time, the bulk of the prosecutions under criminal blood alcohol content were for between 1.6 and 1.8 blood alcohol content. The interesting fact is that in this most recent survey, the average blood alcohol concentration was between 100 and 160, leading us to believe that the prosecutors are starting to prosecute lower blood alcohol content, or closer to 0.08, which is certainly an encouraging movement in this area.

The second point we would like to talk about is the promising avenue of the various roadside administrative suspension programs. In Canada, most jurisdictions have a roadside administrative suspension program under their provincial or territorial highway safety acts. Under those provisions, law enforcement can and does have the authority to issue immediate licence suspension for drivers operating a motor vehicle with a blood alcohol content between 0.04—in Saskatchewan—and 0.08, although most jurisdictions will issue a roadside suspension at 0.05.

The effectiveness of this is interesting. Saskatchewan has analyzed its effectiveness and has found that fewer than 8% of the drivers who were served an administrative roadside suspension re-offended. That low rate of re-offending is a good indication that it served as a deterrent or at least taught a good lesson to people who might not have thought they had a blood alcohol content that was too high to operate a motor vehicle.

From an insurance perspective, in Canada there are four jurisdictions that do not record those suspensions on a driver's abstract; therefore, we cannot use them as an underwriting criterion when we are rating insurance rates of drivers. We know that all of those jurisdictions are currently considering it, but there are a number of stumbling blocks that prevent it. If we were able to rate with a 0.05 blood alcohol content, that would serve as yet another level of deterrence in the fight against impaired driving.

The third point I would like to bring to your attention is the success of random breath testing as practised in Australia. We are all familiar with the RIDE programs used by law enforcement agencies in Canada. Those programs are usually enforced during the holiday season or long weekends. They are not necessarily as systematic as we would like, but they are there. Random breath testing is different, in that they test all drivers without exception; in other words, when you come to a roadblock, every driver who goes through has to provide a breath sample. That helps in the perceived likelihood of being caught.

A recent study published by the Monash University Accident Research Centre by Professor Delaney and associates established the strategic principle of drunk driving enforcement as it pertains to the proper use of random breath testing. Essentially, what they are saying is that random breath testing is a critical element to support the administrative licence suspension and criminal 0.08 BAC levels.

The systematic use of RBT operations increases the perception that a drinking driver would get caught with all the consequences attached to this situation.

[The Chair, Conservative, Ed Fast]

Monsieur Tremblay, we're at the end of our time, so could you just wind up very quickly?

[Robert Tremblay]

Yes.

Essentially, they went as far as to suggest a proper level of concentration, and they basically said that the optimal threshold is 20 hours of operation per week per 100 square kilometres. With that, you achieve a reduction of 36% in injuries and 69% in fatalities, and the effect remains for at least two weeks following the operation.

To summarize, we would recommend maintaining the 0.08 criminal threshold for blood alcohol content, supporting administrative licence suspension, and considering the implementation of random breath testing as it's being used in Australia.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you to both of you.

We'll move on now to Mr. Momy, representing the Canadian Police Association. You've already appeared before this committee once on this study, so you have three minutes to refresh us.

[Charles Momy, President, Canadian Police Association]

Thank you very much, Mr. Chair. I have with me as well Mr. David Griffin, who is a former police officer and an executive officer with the Canadian Police Association. He'll be here to assist me today.

The Canadian Police Association welcomes the opportunity to appear today before the House of Commons Standing Committee on Justice and Human Rights, concerning your Study on Matters Related to Impaired Driving.

The CPA is the national voice for 57,000 police personnel serving across Canada. Through our 160 member associations, CPA membership includes police personnel serving in police services from Canada's smallest towns and villages as well as those working in our largest municipal cities, provincial police services and members of the RCMP.

Motor vehicle collisions that are caused by impaired drivers are not accidents; these are crimes. Impaired Driving remains the number one criminal cause of death in Canada. Despite our collective best efforts and intentions, it is apparent that the problem of impaired driving is worsening in Canada, and we are losing ground in our efforts to eliminate impaired driving. The most recent data available, from 2006, demonstrates that operating motor vehicles and vessels while impaired by alcohol or drugs is at the highest level it has been since 1999. This is not acceptable; the time for action is now.

Canada needs a coordinated and integrated approach involving the federal government, provincial governments, and all stakeholders in the justice system. We welcome the work of the committee in this regard. We would point out, however, that there have been numerous committees, bills, and studies over the past decade. The real problem seems to be in moving forward, beyond consultations, with adequate legislation and implementation.

We believe the areas that need to be addressed in this review include, first, random roadside breath testing. Currently Canadian police officers may administer a roadside test using an alcohol screening device only when the officer has reason to suspect that a driver may have consumed alcohol. Unfortunately, this is not always practical, especially when dealing with drivers involved in motor vehicle collisions. Some countries have permitted the use of random roadside breath testing with significantly increased results. We heard of one, and New Zealand is the other.

This recognizes that driving on Canadian roads and highways is a privilege, not a right. Random testing of drivers is a reasonable and efficient measure to deal with a serious public safety concern. It is no more inconvenient to submit to a random test on our roadways than to be screened and searched at airports, or, as we were today, on entering this building.

If this committee chooses to do only one thing, we would encourage you to consider this proposal. Random roadside breath testing would introduce a significant deterrence for people who might otherwise choose to take the chance and drive while impaired.

Second is hospital testing. A significant enforcement issue for police deals with suspected impaired drivers who are injured and taken to hospital. Often there are challenges in obtaining breath samples within the prescribed time limits and difficulties in obtaining blood sample authorizations.

[The Chair, Conservative, Ed Fast]

Mr. Momy, I'm going to have to interrupt. You're already a minute over time. Please just summarize briefly.

[Charles Momy]

I'll mention the other factors, Mr. Chair, and won't go into detail.

Certainly the 0.05 BAC is another issue that we would like considered. Again, as we have seen in many different countries, the European Union is also looking at adopting that type of circumstance, in those European countries, and bringing the BAC down from 0.08 to 0.05.

[The Chair, Conservative, Ed Fast]

I'll tell you what, the committee members are going to have an opportunity to ask questions, and you can continue on at that time.

[Charles Momy]

Thank you.

[The Chair, Conservative, Ed Fast]

We also have with us Monsieur Therien, as well as Monsieur Marchand.

Monsieur Marchand, you have three minutes as well.

[Raynald Marchand, General Manager of Programs, Canada Safety Council]

Thank you, Mr. Chairman. Thanks to the other committee members.

With me today is Émile Thérien, past President of the Canada Safety Council. My presentation will be in English, but we are prepared to answer questions in both official languages.

Our submission in February 2008, a year ago, explained why the government should leave the legal blood alcohol content, or BAC, at its current level of 80 mg%. The Canada Safety Council strongly urges Justice Canada to work with Canada's national strategy to reduce impaired driving, also called STRID. The strategy is a collaboration of Transport Canada with all provincial and territorial jurisdictions and many safety organizations, including the Canada Safety Council. STRID takes advantage of Canada's most respected traffic safety experts and applies the best research and practice.

Since our presentation last February, STRID has published three major reports. First, let's look at some abstracts.

Let's look at their July 2008 survey of over 1,000 crown prosecutors and defence counsel. That survey found, among other things, that it takes longer and longer to process impaired driving cases, from up to six months for a negotiated plea agreement to well over a year. We would like to point out that such delays would only be increased if criminal charges were laid below the current level.

Almost 30% of cases that go to trial result in an acquittal. Given the reliability of breathalyzer technology, this leads us to ask whether many of those charged are getting off thanks to the good preparation of their defence counsel, when in fact they were impaired.

Repeat offenders account for about one-third of all impaired driving cases. This new information reinforces our recommendation that Justice Canada should focus on sentences that will prevent recidivism by ensuring remedial programs are part of the sentencing and are readily available.

The report concludes that people challenge a criminal charge due to the severe consequences of a conviction. Again, this reinforces our recommendation that lower-BAC drivers should continue to be dealt with outside the Criminal Code, where the consequences are much more sure and immediate.

Secondly, a fall 2008 report on trends in alcohol-related crashes reinforces our point that progress is being made in the fight against impaired driving. The problem group is not drivers under the current legal limit; it is still those with BACs over 80 mg%, and specifically those with BACs over twice the legal limit. Over half of impaired driving fatalities are the impaired drivers themselves.

Finally, the STRID monitoring report for 2007 shows that more and more jurisdictions are strengthening their administrative sanctions for drivers under 80 mg%. New last year, Ontario is adding administrative licence suspensions to the driver record and increasing those suspensions from 12 hours to three days, and even longer for repeats.

These three reports support the Canada Safety Council's position that lowering the criminal blood alcohol level is not what is needed to reduce Canada's impaired driving problems. They confirm that public safety is best served by dealing with drivers with BACs lower than 80 mg% outside the Criminal Code.

[The Chair, Conservative, Ed Fast]

Mr. Marchand, you're going to have to wrap up now.

[Raynald Marchand]

One minute, I'm done.

[The Chair, Conservative, Ed Fast]

No, you're going to have to conclude.

[Raynald Marchand]

Okay.

In summary, the new information that has emerged over the past year reinforces and confirms the recommendations in the Canada Safety Council's February 2008 submission. In the interest of reducing the impaired driving problem in this country, I strongly urge the government to remove the proposed changes to the BAC from the bill and rather to continue on the well-thought-out strategy now in place.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

And you will have an opportunity to answer questions, and we'll continue the dialogue at that time.

Mr. Di Luca, you're on.

[Joseph Di Luca, Vice-President, Criminal Lawyers' Association]

Thank you, Mr. Chair, honourable members.

The Criminal Lawyers' Association welcomes the opportunity to appear before the standing committee on what is obviously a fundamentally important study.

Our organization represents 1,000 criminal defence lawyers across the Province of Ontario. Together with the crown attorneys, we are in many ways the front-line workers of the criminal justice system, so we experience on a day-to-day basis the net impact of the laws you folks make here in Ottawa.

Today I'm here with Jonathan Rosenthal, who is widely recognized as a leading expert in the defence of drunk driving cases. Mr. Rosenthal has a wealth of experience, and we're prepared to share our thoughts on any questions you have.

I will just start out very briefly with a small thought or overview, and I'll turn it to Mr. Rosenthal to address the issue of the 0.05 blood alcohol limit.

I just want to start with the observation that there should be no mistake about it, our members all support fair and constitutional measures aimed at ensuring the safety of our streets. All people, and I add criminal lawyers in that group as well, have a direct interest, obviously, in seeing the reduction of the carnage caused by drunk driving.

Now, having said that, we urge this committee, like we've urged committees in the past, to carefully consider any change, to deliberate on the impact that change will have on the administration of justice across the nation.

The criminal justice system is blunt. It's also delicate. It's blunt in the sense that it's an instrument that does not always change the way society acts. So it's not an answer in all cases to fixing our problems. By way of delicacy, I just want to suggest that the criminal justice system is already near the breaking point in terms of delay and load, and anything you do here has the potential for an exponential impact on the criminal justice system in terms of delay.

The only thing I want to point out to you on that issue is that the Province of Ontario has recently started looking at the issue of court delays through an initiative called the justice on target initiative. That's an effort to try to speed up the delivery of fair justice.

One of the issues you look at in Ontario is that we have an effective trial rate of about 7%--7% of our cases are sent to trial and 93% are either dealt with by way of guilty plea, withdrawn, or stayed. If you change that 7% trial rate by 1% or 2%, you will have an effective change of 15% to 20% in the number of trials that take place in the system. So it's a delicate system. And if the system is strained right now, we have Askov problems recurring in the Province of Ontario at every courthouse. If cases are being stayed and thrown out, if you tinker with that system by 1%, it's a 15% change in the number of trials. It doesn't take a mathematician to figure out what will happen. So I just urge the committee to keep considerations like that in mind, but of course we support the committee in its work.

I'll just turn it over to Mr. Rosenthal briefly.

[Jonathan Rosenthal, Counsel, Criminal Lawyers' Association]

I can't tell you about the numbers or percentages, as Mr. Di Luca did, but what I can tell you, as a lawyer who appears almost daily in the Ontario Court of Justice, is that in Ontario, at least, our courtrooms are in crisis. Every day, charges are being stayed on the basis of unreasonable delay.

And I can tell you, the harder you make the penalties for drinking and driving offences, the harder people fight them. It used to be that the only concerns people had were about licence suspensions, but I can tell you that in the last five or ten years, people have been equally concerned about the consequences of a criminal record.

I think I read somewhere that changing the rate to 50 mg% from 80 mg% will increase charges by about 40%. Our system is already in crisis and it can't handle what we now have, and I don't know how it's going to handle more charges. If you add 40% to the caseload without significant injections of resources, you will be responsible for a crisis of delays far worse than the Askov crisis of 1991.

Our crowns in Ontario are already grossly overworked and grossly short of resources. Believe it or not, senior crown attorneys in Ontario are responsible for tasks such as faxing and photocopying. If you add 40% to their workload, we're obviously going to have a very significant problem.

You also have to think about the police. I'm sure at some point you're going to hear, or have already heard, how long it takes a police officer to process someone from the time of arrest till release. Right now, if someone is pulled over and they blow over 50 mg%, their licence is immediately suspended on the spot, and the time the police have is probably only minutes. Suddenly, every time someone blows a “warn”, or blows over 50 mg%, they're going to be off the road for significant periods of time. Add to that the fact that breath technicians have to take tests if someone is arrested for over 80 mg%. They are also obligated by statute to administer those tests forthwith or as soon as practicable. Again, if you increase the load by 40%, we're not going to have enough breath technicians and we're not going to have enough machines.

So unless you're prepared to ensure that there is a massive injection of resources, you're heading towards what I would say is a disaster.

[The Chair, Conservative, Ed Fast]

Excuse me, Mr. Rosenthal. May I ask you to slow down a little bit, because this is being translated.

[Jonathan Rosenthal]

I had the honour of appearing before this honourable committee in June of 2007 with regard to Bill C-2 amendments. Perhaps I'm surprised I've been invited back. At that time I cautioned you about what would occur if those amendments were passed. I told you the white flag would not be waved and no one would be giving up. Let me tell you what's happened since July 2 and the Bill C-2 amendments passed, and this is only the start.

In Ontario we're still fighting about whether or not the legislation is retrospective or prospective. In about seven months we have judgments going in every direction, with no binding authority. That issue will likely finally be resolved years from now when it makes its way to the courtroom down the road. We've only started litigating about disclosure. We haven't even got close to dealing with the constitutionality. A simple, straightforward non-accident over-80 mg% case now is being set for about two to three days of court time. That is the case that not so long ago you would set about half a day for. I can't tell you how many thousands of cases are going to be in the system waiting for the final determination of retrospectivity and prospectivity disclosure issues and then eventual constitutionalities.

I can go back to the 80 mg% or 50 mg% debate. There is no universal agreement among scientists about whether everyone is impaired at 50 mg% or not; there's a debate. And regardless of what someone blows, if the police officer believes someone is impaired, they arrest them for impaired driving regardless of the reading. The test for whether or not someone is convicted of impaired driving is whether their ability to operate a motor vehicle is even slightly impaired.

So let me conclude. From a selfish perspective, if you lower the legal limit I can tell you'll make a lawyer such as me a much busier lawyer than I already am. Lowering the legal limit will certainly let the uninformed public know how hard the government is coming down on drinking and driving. Finally, I can guarantee you will undoubtedly ensure a greater backlog than has ever been seen, and more charges—and I'm not just talking about drinking and driving charges, I'm talking about all sorts of criminal charges—will be withdrawn and will be stayed if this amendment or this legislation is seriously considered.

If that's all my time, I'll wrap up now and won't touch on any of the other topics.