Justice Committee on Feb. 25th, 2009

[The Chair, Conservative, Ed Fast]

You have two minutes left.

[Jonathan Rosenthal]

All right.

I'll briefly talk about random breath testing. I'm not an expert on the Constitution, but I think there'd be great difficulties from a constitutional perspective in having random breath testing. I don't think we can forget about what the requirement is for the police to at least administer a roadside test. All it is, is reasonable suspicion that the person has alcohol in their body. That is the odour of an alcoholic beverage on their breath, the admission that they consumed some amount of alcohol. That is all that is required. So to randomly stop people, I think you're going to have great difficulties with the constitutionality of it. In the interim you have to remember if that legislation gets passed, until it's finally resolved by the Supreme Court of Canada, you're going to have thousands and thousands of cases in the system. We don't need it. We have experienced police officers out there every day in Toronto administering RIDE programs to look for impaired driving. In a very brief period they form whether or not they have a reasonable suspicion to administer a roadside test.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll open the floor now to questions from each of you.

I will begin with Mr. Murphy.

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

Thank you, Mr. Chairman.

Thank you, witnesses.

Thank you very much for your testimony today.

I just want to be clear that at least I think we're here to study the issue of impaired driving, not any particular legislation or any particular amendments to the Criminal Code.

There have been a number of suggestions floated. The prime one, I guess, that's been floated publicly is the idea of lowering the BAC limit to 0.05, but I do think where we've come--and I don't pretend to speak for everyone--is that there's good esprit de corps here and we actually want to make some changes to be efficacious.

I think where we're going is not to introduce or support legislation that would lower the BAC in the Criminal Code to 0.05, but to support various provincial initiatives in almost every province for administrative licence revocation, and to support that by allowing police officers to have things like the presumption of temporality, which, if given more time, Mr. Momy would have got to, like having randomized roadside breath testing in order to cover the blanket of supervision of our roads on a given day or evening in a safer manner.

I really wanted to ask everybody a question, but you cut to the crux of it, Mr. Rosenthal, when you said there might be a constitutional challenge. I've been here three years, and we always talk about that, that ghost in the other room, which is the charter challenge, but tell me about Oakes and tell me about proportionality.

Is it okay to be searched at an airport, as the insurance people say? The gross penalty there is not to be let on the plane or to lose your can of Gillette shaving cream. It's proportional. It's accepted.

If we are not advocating a criminal offence for driving if you're between 0.05 and 0.08, but a suspension, a much lesser penalty, wouldn't it be proportional? Wouldn't, then, the RBT be proportional if the penalty were less? Isn't that the whole idea of Oakes?

[Joseph Di Luca]

Maybe I'll take over that question from a constitutional perspective.

Ultimately, one of the key features of the balancing act is a penalty that involves jail. So yes, if you structure a penalty system that removes the possibility of jail and reduces it to a fine or suspension, you are going to alter the constitutional playing field for the balancing.

Just from a basic constitutional premise, though, randomly detaining citizens is generally a violation of rights. Then you're going to switch to your section 1 analysis and figure out whether the path you choose on that—

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

[Inaudible--Editor]...if I have to stop at a red light?

[Joseph Di Luca]

No--

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

What you're doing is saying you have to stop here because we're taking random breath samples of people and you may lose your licence if you're between 0.05 and 0.08.

After 0.08 there may be a whole new proof mechanism there, but how is it different going through an airport? I'm not convinced by what you're saying.

[Joseph Di Luca]

The Supreme Court of Canada, thankfully, is on my side on the issue of detention, in the sense that they have spoken very clearly, and for 20-plus years at this stage, and have said that stopping a motorist is a detention from a constitutional perspective.

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

Okay, but it's section 1 approved, essentially.

[Joseph Di Luca]

Well, so far to date, yes, the balance has been struck. We say it's been struck because you need reasonable and probable grounds to arrest and because you need reasonable suspicion. You need some basis for asking for a breath sample, right?

But leaving aside the detention issue, there is the search issue as well, because ultimately it is a search and seizure to take a sample of someone's breath. Now, it may not be one that most people are accustomed to or like, but from a constitutional perspective, it is.

We know from Hunter and Southam and the various cases that have come following that generally speaking we look to some standard, be it prior judicial authorization, which might be the highest or articulable cause, which might be the lowest or reasonable suspicion at this stage. But having absolutely no standard would render the legislation, in my opinion, constitutionally in peril.

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

Okay. In seven minutes we're not going to get to the end of this, but your group would do this committee a great service if you boned up on the Oakes and proportionality, if we're going towards supporting administrative changes.

I wanted to ask Mr. Momy, because he didn't get a chance to get to temporality and the presumption, how important is that?

[Charles Momy]

Actually, that was point 5, as you've seen in our presentation, and certainly there's the whole issue with the three hours.

Just to make sure the committee fully understands this, the whole issue is around the fact that we have a limit. In fact, in 1999 the Criminal Code was amended to increase from two to three hours that time period in which the police could demand breath or blood samples from suspected impaired drivers. The difficulty is that if you go beyond that two-hour limit, you now need an expert to come in.

So if we can make that consistent--whether it's three hours, and on both sides of the fence, if I can say that--it would certainly make it a lot easier for a police officer to be able to stick with that three hours and then go into court with that three hours. Again, every time you go over that two-hour limit, you now have to call in an expert.

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

We can do this through the code, so I think it can be done.

I'll ask the Canada Safety Council this question.

In one of your submissions you wrote that the argument that criminal BAC should be lowered because police do not normally charge drivers below 100 milligrams--that's 0.10, I guess--is frivolous.

Why did you write that? It has been said by some politicians that this is the case now, that in effect you don't have 0.08, you have 0.10.

[Raynald Marchand]

This is an argument by some groups that says because we're not going to take them at 0.09 or 0.08, we should lower it--we're not going to pick them up at 0.05, we're going to pick them up at 0.07 or 0.08.

Our view is that this basically says the police are not doing the job. We think that's frivolous.

If the person is at 0.08 or above, particularly in cases where there are injuries, we do know they are being picked up, so this argument by some group is just not valid.

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

I have a brief question to the insurance bureau.

You said there are four provinces that do not report the administrative licence suspensions, and that the reporting would be helpful in your underwriting procedures and be a deterrent to future recidivist driving activity.

Which provinces are those?

[Robert Tremblay]

I don't have them. I will get back to you.

However, I have to specify one more point. Even if it is recorded in the driver's abstract, it doesn't mean that the insurance industry has the authority to use that as an underwriting criterion. Because automobile insurance is regulated provincially, we have to also have authorization of the provincial regulator to do so, and we do not have that authorization in all jurisdictions.

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

Perhaps I could get that information from you subsequently.

[Robert Tremblay]

I will do that.

[The Chair, Conservative, Ed Fast]

If you can just deliver it to the committee, that would be great. We'll circulate it.

Monsieur Ménard, seven minutes.

[Réal Ménard, Bloc, Hochelaga, QC]

I have three questions, with your permission, Mr. Chairman.

I don't believe either that the Bloc Québécois will recommend lowering the BAC from 0.08 to 0.05.

In one province or another, when a driver's licence is revoked, is it the various car insurance companies or the municipal courts that can give it back? That's the first question I'm asking.

Who can give me that information? Is it the insurance bureau, the police or the defence lawyers who see to restoring a licence?

[Jonathan Rosenthal]

In Ontario, if you lose your licence, administratively it automatically comes back. There's no application; it's automatic.

[Réal Ménard, Bloc, Hochelaga, QC]

To your knowledge—and I'm speaking to all the witnesses—there are no measures in place, such as the obligation to go to municipal court to get your licence back. That can be done through the various car insurance companies, but there's no administrative measure requiring someone to appear in municipal court. All right.

Next, if the police officers' recommendation is approved, I want to understand exactly what mechanism you would like. I thought I understood that, when a police officer stopped someone for impaired driving on reasonable grounds, there were two tests: one involving approved detection devices and, if the grounds are proven, a second test with the aid of what's called “approved alcohol screening devices”, according to our research notes. So there are two mandatory tests, if there are grounds.

In the second test, technicians are trained by various police departments. They take courses, and there's really one way of doing things, which is approved in accordance with a methodology of the Canadian Society of Forensic Science.

If we approved your demand that we allow police officers to set up road blocks, then there will be no more reasonable grounds; people will have to submit to the tests. Will the two-test system remain in effect? The reasonable grounds criterion will not apply, if I understand correctly. How do you see that in practice?

[Charles Momy]

Simply put, once the person was stopped, no test would be required at first. At that point, that would not give the police officers authority to take the person to the police station to conduct the second test.

[Réal Ménard, Bloc, Hochelaga, QC]

The approved screening test?