Justice Committee on March 2nd, 2009

[Dr. Yvona Buczek]

On the scenario you have described here, my colleague was crunching some numbers without a calculator while I was listening to the question. He would say that the scenario you describe would result in a person having a BAC of somewhere between 10 and 45 milligrams of alcohol in 100 millilitres of blood at 10:30, which is the incident time, as we toxicologists refer to it.

Certainly this is not a very high level. If you are talking about 10, that is a very low level of alcohol. However, as I indicated during my presentation, if you take a person like this to the lab and test them on some very sensitive tests with skills that are relevant to driving, you actually may see differences in the performance at 15 as compared to zero. Does that translate into unsafe driving? I don't know. At 45 you'd certainly have more. There would be more skills impaired to a greater extent, and you're going to see them in more people.

Again, you have to differentiate between impairment and what you observe. You may look at somebody at the level of 50, 100, or even 200, and you might not see anything in terms of how they behave. It depends upon what they are doing. If they're just standing there and a police officer is talking to them, they might not show any signs of intoxication, particularly if they are tolerant, going back to your earlier question. If you put them in a car and put them into a very complex driving situation where there are a lot of things happening, where they have to integrate a variety of stimuli from the environment, like observing traffic signs, traffic signals, other cars, and pedestrians, and they have to process all this information, what alcohol does is it causes less information to come in and to be processed at a slower rate. In that aspect, a person would have decreased ability to operate a motor vehicle even at 15, certainly more at 45, and even more at the 100 or 200 level.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Bagnell. Second question, five minutes this time around.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I just want to talk a bit about the random roadside tests that Mr. Solomon brought up. I wonder if you could tell me roughly how many countries in the world do that. Obviously Canada doesn't.

[Robert Solomon]

I believe almost all of the countries in the EU have random breath testing now. The EU has recommended comprehensive breath testing, New Zealand, Australia, Japan.... I haven't done a survey of the international law, but I believe probably a majority of countries have some form of random testing--not necessarily random testing at roadside, but clearly the EU, Australia, and New Zealand.

[Larry Bagnell, Liberal, Yukon, YT]

Do any of the other witnesses have comments on this proposal of Mothers Against Drunk Driving for random roadside tests?

My concern is related to the constitutionality. You raised that yourself. There are a number of Canadians who don't like to be interfered with if they are minding their own business, and I'm not sure the airport scanning is a good example because it's optional. There is a sign when you go there that says you don't have to go through the scan if you don't want to fly on the plane.

[Robert Solomon]

You're the boss of that.

[Larry Bagnell, Liberal, Yukon, YT]

But when you're at home and you want to go to the grocery store you don't have a choice. You're going to be pulled over and tested, by your scheme, so it's comparing apples and oranges. Civil liberties people might have a problem with that.

[Robert Solomon]

I would disagree with you, sir. Driving is not a right in this country. Driving is a licensed activity. It is a privilege, so the example you give with the airport is irrelevant.

Also, the courts have already dealt with the issue of whether a government can require random screening to enter a public building. The last time I was here the security seized my shaving cream three times. I was searched. I was scanned three times. We, in this room, believe that the state interest in protecting parliamentarians justifies random search of my person and my property. The courts have addressed this issue and upheld random screening and searching for entering public buildings and courts.

If you look at the statistics on deaths and injuries in Parliament and in government buildings and you look at the deaths and injuries in terms of roadways, there is no comparison. I would suggest to you that the state interest, in terms of random breath testing, the number of lives we would save—probably something like 20% reduction in traffic deaths and injuries—warrants that interference with the right to be free from unreasonable search and seizure. You're right, it is random search, but drivers are already subject to random stopping. Drivers are already subject to random search. Police officers can demand to see my licence and insurance. That's a random search.

The state interest in making sure you are sober is greater than the state interest in making sure you have your insurance and licence with you. That is the reason why. As between random breath testing and 0.05, the evidence is clear. The random breath testing will have a greater impact on reducing deaths and injuries.

[The Chair, Conservative, Ed Fast]

Thank you.

I believe Mr. Brison has a question.

You have a minute and 45 seconds.

[Scott Brison, Liberal, Kings—Hants, NS]

Thank you.

I also thank you, Margaret Miller, for being here. Margaret is a Nova Scotian and a constituent.

I would agree with your assessment of the constitutionality of the issue in terms of random testing, in terms of driving being a privilege and requiring a licence, and it being a choice as to whether or not one drives.

But I have a question on the resource issue. In conjunction with this proposal, have the RCMP or police forces asked for an increase in resources to help make it truly effective and to ensure that we don't just pass a policy change but actually increase resources to facilitate it achieving safer roads?

[Robert Solomon]

A random breath testing scheme is a lot more efficient and effective than sobriety checkpoints, where you need to have reasonable suspicion to demand a sample.

I'll ask my colleague to talk about the police attitude toward RBT.

[Andrew Murie]

The Canadian Police Association appeared before this committee and was asked what their number one priority was, and they said random breath testing.

What we know about drinking drivers.... It's the perception of being caught. It will reinvigorate police enforcement on impaired driving. For all the things my colleague said, it will also make a fundamental difference on the police enforcement side. That increased perception will drive down the number of drinking drivers. That's where you get the savings in lives, deaths, and injuries.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Monsieur Lemay.

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

I thank the witnesses for being here. I listened attentively to what you said to the committee.

For many years, as a defence lawyer, I argued impaired driving cases. I would therefore like to ask a question of the MADD representatives.

On page 4 of your presentation, you say:

Indeed, contrary to what the alcohol industry and its allies have suggested, research indicates that reducing BAC limits to 0.05% or lower has its greatest impact on high-BAC drivers.

In all sincerity, I have to tell you that I have a very hard time with that. You say that such research exists. Could you send a copy of it to the committee?

[Robert Solomon]

Thank you very much.

I have already supplied that research to you in written form. When we appeared before, we gave you a copy of this article, which deals with the issue of whether a 0.05 would have a deterrent impact on high BAC drivers.

I've also given members of this committee the article I published in the Criminal Law Quarterly. The article proposes a streamlined 0.05 offence with some reconviction procedures, with the ability to plead guilty without appearing in court, with an automatic reduction or an automatic elimination of the criminal record if the driver had no further impaired driving convictions.

So that information has been provided, but I'd be happy to provide it to you again. And if you wish, I will leave you copies of these documents.

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

Thank you very much.

Ms. Robertson, I read your document as well. On page 12 of the French version, you say the following.

According to findings from previous studies, it is evident that in the past two decades, the effectiveness and efficiency of the criminal justice system in dealing with impaired driving cases has been eroded.

Can you tell me how and why this has happened? Do you have any studies or documents to support this? Is it because the number of cases is too high?

[Robyn Robertson]

That research actually comes from the national survey we did of crown and defence counsel, where we looked at how it's taking longer to process these cases than it did 10 or 20 years ago.

You're seeing vastly more people going to trial and challenging the charge. You're seeing more cases lost at trial. You're seeing fewer cases pled. You're seeing caseloads of crown counsel increase dramatically.

I think all those things contribute to an erosion of the deterrent effect. If the public doesn't believe they'll necessarily be convicted, which is why they're willing to go to trial, I think that's a strong statement about how deterred they are.

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

Could we get a copy of the survey of lawyers?

[Robyn Robertson]

Yes.

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

If I understood correctly, according to your presentation, an impaired driver is afraid of losing his driver's licence. Therefore, if we strengthen the driver's licence process, we may achieve the same results as if we reduce the blood alcohol level from 0.08% to 0.05%. Is that correct?

[Robyn Robertson]

Right. I think the immediacy with which the sanction is applied is important. At an administrative level, they can apply the sanction much more quickly, whereas in a criminal setting it can take more than a year for these cases to get to trial. Usually during that time these people are driving and posing a risk on the road. If the administrative sanctions are enforced and something like an ignition interlock were applied—the research on ignition interlocks shows they're very effective—I think we'd have a better chance there.

[The Chair, Conservative, Ed Fast]

Thank you, Ms. Robertson.

There was a request for information and both organizations volunteered.

Professor Solomon as well as Ms. Robertson, if you could deliver that to the clerk, we'll distribute it amongst members here. Thank you.

We're moving on to Mr. Rathgeber.

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

Thank you, Mr. Chair.

Thank you to all the witnesses for your excellent presentations and for your interest in this very important matter.

My first questions are to Professor Solomon. With all due respect, Doctor, I disagree with your assessment that random breath testing would survive charter scrutiny.

You're arguing by analogy that individuals who board planes and enter government buildings and courthouses are all subject to some sort of search. I certainly agree with that. I boarded a plane today, and I suspect you may have as well, and you've certainly all entered this Parliament building. But I would suggest that every individual who boarded the plane that I boarded had to subject themselves to walking through a metal detector, and their carry-on luggage went through an X-ray machine.

There are eight witnesses, and you can tell me if I'm wrong, but I suspect that each and every one of you went through a metal detector. If you had a briefcase, it went through an X-ray machine. Am I wrong?

[Voices]

No.

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

So I'm suggesting to you, Doctor, that this is not random. It is quite different from what you're suggesting in terms of pulling over drivers and making them submit to some sort of roadside screening device. Putting it in the form of a question, do you agree with me that your analogy with respect to public buildings and airplanes is not a proper analogy?