Justice Committee on Feb. 25th, 2009

[Robert Tremblay]

As another point on the interlock, I think it's important to realize that a lot of these chronic offenders are people at the lower end of the socio-economic scale. Interlock is $100 a month and it's user pay, so there is a deterrent for a lot of people to be on it, because they just can't afford it, and that is a concern.

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

Mr. Tremblay, I don't just pick on the Insurance Bureau when it comes to this industry. I pick on the auto industry as well.

Is there any analysis as to whether people are just getting ripped off?

[Emile Therien]

No comment.

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

Mr. Di Luca or Mr. Rosenthal, on the use of the interlock, do you see any problems with it from a defence perspective?

[Joseph Di Luca]

If I could offer my clients an incentive either to plead guilty early or to not fear the consequences—and the biggest one they ask about is the ability to drive—if I could tell them I can get them back driving, albeit in a manner that is controlled and safe, with the use of an interlock device, that would be a significant feature that I think would mitigate both towards earlier resolution, higher resolution, and greater acceptance of responsibility.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Di Luca.

We're moving on to the next questioner, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks, Chair.

And thank you to all the witnesses. Your testimony today has been interesting.

We are talking about a number of important issues. We're talking about safety on the roads in the context of impaired driving. To that end we're also talking about the blood alcohol levels.

I find that what's been provided by the Canadian Police Association is extremely helpful, but also interesting. On this graph you provided, under our current law of 0.08 someone could have what you've called five standard drinks over the course of two hours and be below that 0.08 level. And in fact someone could have three standard drinks in two hours and be below the 0.05 level, where in most provinces there would be some administrative penalty if they had gone over 0.05. This is the case of a 200-pound male having three drinks in two hours. He would be below that administrative level. In fact, by having five drinks in two hours, someone would be below the Criminal Code level.

Since you are on the front line, I'll ask the Police Association whether individuals are more genuinely shocked when they blow over or when they go under. I'm wondering if you ever get a sense that someone, maybe in an honest moment, says, “Wow, I can't believe it. I'm out of here.”

[Charles Momy]

I'll have David answer that, because Dave was a breathalyzer technician for a few years with Peel. He certainly has some experience in that area.

[David Griffin, Executive Officer, Canadian Police Association]

I was probably the most surprised when somebody would blow under. Sometimes the symptoms of a less experienced driver blowing only 0.90 and being behind the wheel of a car were quite frightening. So it does vary, based on a person's size and also their tolerance.

I did about 400 tests over 20 years ago when I was a breathalyzer technician. The other big factor for me is that in most cases by the time a person gets to the breathalyzer it's probably one to two hours since they were driving, so there's probably at least another drink in their system, perhaps two, that has burned off during that period of time. They're going to lose about 0.015 every hour from the time they stop drinking.

[Rob Moore, Conservative, Fundy Royal, NB]

I find that number pretty surprising. And we've heard quite a bit of testimony about the administrative penalties that most provinces have at 0.05.

I'll throw this open to our panel. Is there any one province that you would hold out as a success story? What is the appropriate penalty? Should the penalties increase for someone who has had multiple offences?

And I have another question. Anyone can feel free to answer who feels competent to do so. What does someone who is drinking and considering driving look at as the more significant penalty: the Criminal Code sanction or the inconvenience of the loss of a licence? We've heard some testimony I found a little surprising, that the most serious thing is the loss of their licence. People are more worried about that than a Criminal Code conviction. I find that hard to believe, but maybe that's what you're hearing.

I'll throw those questions out.

[Joseph Di Luca]

I'd be happy to help on that latter question. The primary concern for most people is the ability to drive, because it's usually the contingent factor on their employment.

We'll often get clients who come in, for example, a truck driver with a family, and the only way to support the family is by driving. Losing a licence ultimately leads to loss of gainful employment and puts the family in a crisis situation. The ability to drive in a controlled fashion goes some distance to removing impediments in these types of cases.

Now tied to that, and increasingly post-9/11, the imposition of a criminal record has become a significant factor. While years ago I didn't hear that complaint all that often, I'm starting to hear that more now. I appreciate I can't have my cake and eat it too. I think if I took a survey of my clients, the ability to drive would likely still place first, but the criminal record is a close second.

[Emile Therien]

I think if you look at the Criminal Code of Canada...I'm pretty sure it goes back to the year 1890, and if you look at the thing that deals with bank robberies, it goes on and on and on, and impaired driving falls under this. I think most Canadians would not really know what the Criminal Code is, but they know that the penalties under the Criminal Code are very severe. I think most Canadians don't know the law regarding impaired driving, but they know it's a bad thing to do—“don't get caught”.

[Charles Momy]

I believe MADD is actually providing a presentation as well. I do know that they provide report cards, if you want to call them that, on the different provinces and so on. I'm sure they could probably assist you with providing you with further information on which success stories are out there in the different provinces.

[Robert Tremblay]

The only point I would like to add to everything that has been made is regardless of how severe or how extensive the licence suspension is, if it is not supported by law enforcement, in other words RIDE programs, and significant enforcement, the risk of being apprehended will still remain low, and in the minds of people who would be tempted to drive at the range close to 0.05, that will not be a deterrence to them.

The study that mentioned Australia, when it analyzed what works and what reduces the incidence of drinking and driving...the perception drivers have that if they are taking the wheel while they are under the influence of alcohol is high. As long as the general public thinks, “I can take a chance, there are not a whole lot of RIDE operations, I'll take my chances”—as long as that mentality and that attitude lasts, you can have the best administrative licence suspension in the world, it's not going to make a difference.

[The Chair, Conservative, Ed Fast]

Sorry, we're done.

[Rob Moore, Conservative, Fundy Royal, NB]

Done? Okay.

[The Chair, Conservative, Ed Fast]

Yes, you'll have another chance.

We are moving on to Mr. LeBlanc for five minutes.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you very much, Mr. Chairman.

I also want to thank the witnesses for their presentations.

I'll begin by asking Mr. Momy a question. Since you didn't have enough time to make your presentation, this may give you a chance to continue.

In your presentation, you raised the 0.05 BAC issue. Unless I'm mistaken, you have an opinion on the idea of lowering the legal BAC to 0.05. Did I understand correctly?

Are you talking about a provincial administrative procedure, or do you think we should amend the Criminal Code to lower the BAC to 0.05?

I want to make sure I understood correctly.

[Charles Momy]

The CPA has no official position on the matter. Our suggestion is that the committee should specifically look at the Criminal Code rather than the administrative measure. That would be a possible change and an advantageous one, based information from other countries.

The European countries have established random testing and the maximum BAC is set at 0.05. Based on the information gathered, it's effective.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Let's continue on the matter of random testing. I want to make sure I clearly understood the question by my colleague Mr. Ménard. He claims to be younger than I am, but he's obviously much older.

In his question, he addressed the subject of random roadside testing. Unless I'm mistaken, you think that at no time, and in no way, should we prevent a police officer from asking someone to undergo a random roadside test. Is that correct?

[Charles Momy]

That's correct. For example, we mentioned the RIDE program, police road blocks set up at various locations in various cities. When someone was stopped, he would automatically be asked to undergo a test. If that person failed the test, he would then be taken to the police station and officers would continue the procedures as established.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Merci beaucoup.

Mr. Chairman, perhaps a question to Mr. Rosenthal. In your work as a criminal defence counsel, when you have successfully defended your clients against an impaired driving charge, more often than not if they're acquitted, what grounds is it on?

[Jonathan Rosenthal]

I would say they're acquitted quite often on charter grounds—either unreasonable delay, or issues involving unreasonable search and seizure, or issues involving rights to counsel. Quite often they're acquitted on a number of technical defences. The Criminal Code is very technical. There are expressions such as that the crown has to “cross their t's and dot their i's”, and to some extent it's a very technical defence.

It's interesting. If you have a very experienced police officer, such as an officer who's assigned to a traffic squad and does pretty well nothing but investigate impaired driving offences, they don't make many errors. When you have an inexperienced officer who may just be working in a division, running a whole myriad of crimes all the time, quite often they make some technical mistakes, and that's really due to a lack of proper training.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Can you give me an example of what kind of technical mistakes they would make? When you meet one of your clients who is agitated and he's been charged, what are you looking for in terms of mistakes that may have been made?

[Jonathan Rosenthal]

Most of the mistakes that are made are made when the officer testifies. He forgets to say something he ought to have said, or he says something he ought not to have said. For example, there are two breath demands under the Criminal Code. There's a demand for a roadside breath test—the screening device—and there's an approved instrument demand. Occasionally they'll read the wrong demand. That would be grounds for an acquittal.