Justice Committee on Feb. 25th, 2009

[Dominic LeBlanc, Liberal, Beauséjour, NB]

I understand that in court they make mistakes in testimony, so that there's not the right evidence before the court, and that leads to an acquittal. You talked about the charter grounds. Give me an example of what kind of case you would have had thrown out or acquittal entered on a charter violation.

[Jonathan Rosenthal]

I think the police generally get it right. They read the right thing, for example, as “right to counsel”. Of course, an accused person is entitled to exercise that right to counsel, and there are a great number of issues and disputes as to whether the police effectively allowed someone to exercise their right to counsel.

Another issue is “reasonable and probable grounds”, whether the police acted too quickly in going right to the breath demand when they should have used a roadside demand, or something along those lines.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Monsieur Lemay.

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

Good afternoon.

Since I've spent a lot of time practising criminal law on the defence side, I like to look at the documents. I have a problem with some of the statements by the Canadian Police Association.

In your brief, which I've read twice, you say this:

Despite our collective best efforts and intentions, it is apparent that the problem of impaired driving is worsening in Canada [...]

I don't have the same figures as you. In 1999—and this number comes from the department—the total number of impaired driving cases in Canada was 85,997 and the number of persons charged 73,143. In 2006, there were 74,331 charges or incidents and 60,402 persons charged. I have in my possession the figures covering the period from 1986 to 2006, 20 years. A constant decline can be observed. Don't come and tell me that the problem is getting worse, unless the people at the Department of Justice have lied to us, in which case we should summon them and ask them the question. My figures, which come from the government, show a constant decline. If you're telling me you have figures, I'd like to receive them by courier. It's clear that initiatives have been taken, that things have been done. As a defence lawyer, I can tell you that the burden on the defence is a lot heavier now. Let's remember that, in 1986—and I don't know whether Mr. Rosenthal was a lawyer at the time—we regularly saw acquittals. But there are a lot fewer today because the work is being done better.

In Quebec, they're going to install radar to control road traffic. We're given figures and we're told that, by simply reducing speeds by five kilometres an hour, we would reduce the number of accidents by 25%. Fear of being caught by police officers and of being arrested is probably a significant incentive, but you also have to consider the fear of administrative penalties. Isn't that greater? Since 2000 in the provinces, particularly Quebec, it's been much harder to get back your driver's licence after being arrested the first time for impaired driving. Imagine what it's like the second time. I know there are reoffenders; I've had multiple reoffending clients.

Instead of lowering the BAC from 0.08 to 0.05, shouldn't we allow stiffer administrative penalties? I agree with you on random breath testing. I invite my colleague Mr. Rosenthal to consult the Supreme Court decision in R. v. Orbansk; R. v. Elias, [2005] 2 S.C.R. 3. In 2005, the Supreme Court held that, if the question were put to it again, if it had to consider that possibility under section 1 of the Charter... The government may have valid and compelling objectives for intervening in this regard, but wouldn't it be preferable, so as to avoid lengthy debate, to allow the provinces to take much more draconian action to assist police officers?

[The Chair, Conservative, Ed Fast]

Whoever wishes to respond, you have 20 seconds.

There are a lot of questions there. If there's further statistical evidence you want to submit, please submit it to the clerk and we'll distribute it.

[Charles Momy]

I'll try to answer your questions, Mr. Lemay. With regard to the first, concerning the statistics we presented, I'll definitely tell you where we got them. I want to point out that they include all modes of transportation. I'll send you that information.

As for the second, from an administrative standpoint, the difference between 0.08 and 0.05 definitely produces results. It helps police officers.

[The Chair, Conservative, Ed Fast]

We're actually out of time.

[Charles Momy]

Basically it's administrative, certainly, but to the extent of the consequences, if they're much higher, certainly we'll assist.

[The Chair, Conservative, Ed Fast]

Monsieur Momy, we're a minute over.

We'll move on to Mr. Norlock.

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

Thank you very much, Mr. Chair.

Thank you, gentlemen, for coming here as witnesses.

For Mr. Griffin's edification, I was also a breath tech for many years and did many hundreds.

I'd like to say one thing. If I were ever charged with impaired driving, I'd like Mr. Rosenthal to defend me. I've been up before what we consider to be high-priced impaired driving specialists, and it's never the innocence or guilt of a person; it's the mechanics part of it. I suppose in a country like ours that's good, because the police are kept on their toes, etc.

To let folks know, when we discussed this at our last meeting on impaired driving, we had some witnesses, and the defence counsel brought up the antiquated devices police were using. I think they were referring to the Borkensteins and the fact that they had been in service since the 1940s or 1950s. My son was telling me he's taking the transition training on Intoxilyzers, but even if we get the newer Intoxilyzers, there are still many defences, so it doesn't really matter what science is brought forward. We can go to the hospital and out of one drop of blood, or a very small amount of blood, they can tell you what your blood alcohol content is. Nobody disputes that, because it may or may not save your life.

I really don't think anybody here seriously wants to reduce and make .05 the impaired driving limit. What we want to do is reduce the number of impaired drivers on the road, by education as one part, but as legislators by working with other legislators to bring into effect those programs that would adequately serve the purpose of reducing impaired driving. As I said before, people who are killed by impaired drivers don't have access to the charter. Their charter rights are finished. The victim's charter rights are finished.

Thank goodness we have a charter, but other countries don't have it and they're able to reduce impaired driving. I think if we look at best practices, I don't think people like Mr. Rosenthal would stand in the way if we, as legislators, tried to do things—and he's already challenged it—with being stopped at a RIDE program. Right now police officers do have to smell it coming out of the car. They have to stick their nose in your mouth, basically, to smell your breath and be subject to all the things you're carrying.

My question to you, Mr. Momy, to the Insurance Bureau, to the Canada Safety Council, and to the defence lawyers is this. Could you help us out here and give us your two top priorities? I like to deal with priorities, and perhaps you could voice quickly here the two top priorities in order of preference, with the first one being what we can do to improve the situation without having to overtax the system. I'm saying reasonable priorities—the ones that don't cost an arm and a leg. In this day and age, folks don't have a lot of money to put forward to their government to bring in thousands of police specialists. But we are going to increase the number of police officers.

[The Chair, Conservative, Ed Fast]

You only have one minute. It'll have to be really short.

[Robert Tremblay]

I would say that allowing random breath testing would definitely help as a better deterrence. If people think they're going to get caught, they will change their behaviour.

[Charles Momy]

We would say random roadside breath testing, and you certainly have heard many of us talking about it.

The second priority for us would be the hospital testing environment. It's more and more difficult for police officers to obtain warrants, and so on, to get those samples.

[Raynald Marchand]

I would like to see the federal government exercise leadership with the provinces to bring them all on the same page. Ontario, for example, will go from three days to seven days to thirty days for the 0.05 starting this May. If this were across the country it would be much easier for the Canada Safety Council, or anyone, to explain to Canadians. Many people don't know what they're getting into until they actually are charged.

[Joseph Di Luca]

Let me just add a few minor points.

One is to add flexibility to the criminal justice system, because right now there's inflexibility, which leads to an insistence on trials in drunk driving cases and an insistence on fighting these cases tooth and nail to the very end. If there were a measure of flexibility in terms of punishment, matters would be different.

Second, let's not ever forget the role of public education, which certainly goes a long way towards teaching people a better way of living and avoiding this type of offence. I agree that the risk of getting caught deters people, but the same is accomplished by having a RIDE program alone on every street corner. If you think you're going to get stopped by RIDE or a police officer—leave aside the mandatory breath sample—you'll think twice about driving drunk.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Mr. Murphy for five minutes.

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

Thank you.

I just want to say to the Insurance Bureau that I was surprised that New Brunswick was on that list. Both Monsieur LeBlanc and I will be taking that up with our Liberal friends in New Brunswick who, with their no-fault legislation in the past, have been quite friendly to the IBC.

I guess I'm going to cut to the chase with the criminal defence lawyers on this point. The Police Association has put some very specific suggestions forward here that I think are workable. One is a legislative preamble. Now, they're not lawyers, but they're saying that from their experience, if a legislative preamble is in the legislation, it gives the judge some guidance as to the inherent harm inflicted by impaired driving and so on.

My first question to one of you is, how much impact do you think that will have? How much would it change the status quo if there were a really good preamble?

The second question I have is about a suggestion from Mr. Therien's group that the alcohol test committee be given the authority to approve the alcohol ignition systems. I presume, and I'll just take it as a quick yes, that you have no problem with that. It's almost an administrative thing.

So back to my original question about the preamble. How important is that?

[Jonathan Rosenthal]

Well, a judge's job is to determine whether someone has been proven guilty beyond a reasonable doubt. I don't think any preamble telling the judge there's carnage on the highway will in any way—nor should it—affect a judge's decision. If he thinks someone is innocent or there's reasonable doubt that they're innocent, he ought not to convict that person because of some preamble about how seriously we're taking drinking and driving.

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

Well, Mr. Rosenthal, I'm going to stop you in the snow right there, right in your tracks, because guilt or innocence is not going to be judged by a preamble, but the importance of this is in terms of its proportionality, which was my original question to you, whether section 1 of the charter saves the section.... Wouldn't a preamble be very important for that? I know it is in other cases.

[Jonathan Rosenthal]

I don't think a preamble is going to save the day. To say you can randomly stop someone and randomly demand that they provide a sample of their breath or other bodily substance without reasonable suspicion or reasonable probable grounds, when there is legislation in place already under subsection 254(2) authorizing a police officer, if he reasonably suspects a person, is an exceedingly low threshold for investigative purposes in making that sort of determination.

You commented earlier that if it were administrative and not criminal, perhaps that would be all right, and you're probably right. The difficulty is, they don't know whether the person is going to blow 50 mg% or 80 mg% until they get them back to the station. So as a practical matter, the suggestion you made, I think, is unworkable.

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

Let's concentrate on the word “randomized” then, because I think the wording is actually pretty important when we're talking about legal challenges. It implies to me, or at least I infer, that there is no thought to it. In other words, there's no targeting. It is fair to everyone on the road because you do not know whether it's going to be on Mountain Road or St. George Street in Moncton that you will be stopped. It's irrespective of any symptoms of driving one way or the other. As the Canada Safety Council will say, you can be up 19 hours—as many of the hardworking members of Parliament often are—and not be within your own faculties to drive, or you can just be a bad driver, frankly, and have signs that would alert a police officer previously to have that trigger.

But with this randomized aspect, let's just pretend you're the devil's advocate, that you're the respondent or appellate lawyer for the crown, protecting a section that is based on randomized breath tests, with a very, very good preamble to the legislation—

[Jonathan Rosenthal]

With the greatest respect, I think you made the best submissions from the defence standpoint that could possibly be made. If it's totally random, without any basis, sir, that is what would make it an unreasonable search and seizure.

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

What if it applies to everyone, then?

[Joseph Di Luca]

If you look at the section 9 jurisprudence, it's the arbitrariness, which is defined by randomness, that is actually the nature of the charter violation. Tied to that, we know from all the case law coming back earlier, on the section 1 analysis, that randomly stopping motorists for a friendly chat is fine, but if you're going to put a breathalyzer in their face or at least a roadside screening device, you have to meet some minimum constitutional standard, because it is a seizure. So removing that next hurdle would likely be the next battlefield for the section 1 analysis.

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

Is the opposite of randomized, universal, such as the airport security check?