Justice Committee on May 6th, 2015

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, I'm calling this meeting to order. It is 3:30.

Today we're at meeting number 74 of the Standing Committee on Justice and Human Rights. According to the orders of the day pursuant to the order of reference of Wednesday, October 8—that seems like a long time ago—we are studying Bill C-590, an act to amend the Criminal Code in regard to blood alcohol content, which was referred to committee.

Today's witness for this bill is the mover of the bill, Mr. Hoback, who is the MP for Prince Albert.

Mr. Hoback, the floor is yours for 10 minutes.

[Randy Hoback, Conservative, Prince Albert, SK]

Thank you, Chair.

Thank you, colleagues, for being here this afternoon to talk about something that's very serious. It's dear to my heart but also dear to many Canadians across Canada. It is about the ability to get drunk drivers off the road and to actually put in place better legislation to do that.

As for what Bill C-590 does, it is an act to amend section 255 of the Criminal Code to establish more severe penalties for offenders who have a blood alcohol content of twice the legal limit. In this bill, we're not going after those who have had one glass of wine or are maybe in and out of the 0.05 or 0.08, depending on what province you're in. This is actually going after people who are two sheets to the wind: they are seriously drunk and they're getting into a motor vehicle and doing great harm when they do that.

As I said when we first discussed this in the House, I am very open to ideas on, suggestions for, and amendments to this bill. This is not just my bill. In a lot of ways, this is your bill. I look forward to the committee making this bill a stronger bill by doing just that, so that the result is something we can take pride in and have some confidence in, knowing that we've made the roads, streets, and waterways in Canada safer.

What we'd be doing is that offenders who are at twice the legal limit would be “liable to imprisonment for a term not exceeding 10 years”. Penalties for the first-offence conviction will now result in a minimum fine of $2,000 and a minimum 60-day prison term. In the case of a second or subsequent offence, the minimum term of imprisonment will be 240 days. Those with a blood alcohol content over the legal limit who harm or kill someone will be additionally penalized with a minimum fine of $5,000, a minimum of 120 days in prison for a first offence, and a minimum of a 12-month term of imprisonment for a second or subsequent offence.

To share some stats, according to Statistics Canada, almost half of fatally injured drivers had a blood alcohol content of more than twice the legal limit. This level of impairment has had a devastating impact on our youth, as they make up 31% of alcohol-related deaths. I don't think there is one person in this room who can't relate to that statistic. When I went to high school, we heard of different schools throughout the district that saw youth killed before their prime because they were drinking and driving.

The June 2009 report by the House of Commons Standing Committee on Justice and Human Rights on alcohol use among fatally injured drivers indicates that the bulk of impaired driving problems lies with those drivers having a blood alcohol content over the current Criminal Code BAC of 0.08. That's a startling fact, when you think about it. This isn't about somebody who maybe had one little drink too many and is over 0.08. We're seeing very severe consequences when they get over that 0.08 or 0.05 factor, depending on where you are.

Among the tested drivers in Canada, 62.9% showed no evidence of alcohol, and that's a good sign; 37.1% had been drinking, and that's a bad sign; 4.3% had a blood alcohol content below 0.05; 2.6% had a blood alcohol content from 0.05 to 0.08; 9.4% had a blood alcohol content of 0.081 to 0.160; and 20.8% had a blood alcohol content over 0.160.

In other words, 81.5% of the fatally injured drinking drivers had a blood alcohol content over the current limit of 0.08 up to 0.16. High blood alcohol content drivers, such as those with a blood alcohol content over 160 milligrams per 100 millilitres of blood, are drunk. There's no question that they're behind a wheel and there's no question that they should not be behind the wheel. Your friends will recognize that at this level of alcohol.... These are the people who are doing the most harm on our roads. Of course, this represents a disproportionate number of fatally injured drinking drivers.

Drivers with a high blood alcohol content represent about 1% of the cars on the road at night and on weekends, yet they account for nearly half of all drivers killed at those times. That's 1%, but half the deaths. Limited resources would seem to be best deployed to target the 81.5% of the fatally injured drinking drivers who are already above the 0.08 threshold. The worst offenders are already driving with a blood alcohol content two or three times the current limit. Drivers with the highest blood alcohol content constitute the most significant danger on the roads or waterways, and they should still be a priority.

Section 255.1 of the Criminal Code states that if an impaired driving offence is committed by someone whose blood alcohol content exceeds 0.16 at the time the offence was committed, it will be an aggravating factor upon sentencing. This reflects the fact that driving with a high level of impairment—over 0.16, or double the current legal limit—is generally indicative of a serious problem.

Even if a driver with this level of impairment is being detected for the first time, it is likely that this is a hard-core impaired driver. In other words, the only thing we don't know is how many times he's been drinking and driving before they caught him. Of course, this is due to the fact that rarely is that time the first time he has driven while under the influence of alcohol.

In Saskatchewan we've experienced an increase in police-reported impaired driving incidents in each consecutive year from 2006 to 2011, according to Stats Canada. Furthermore, in 2011, Saskatchewan had the highest number of such police-reported impaired driving incidents, at almost 700 per 100,000 people, among all of the provinces. In other words, over the course of five years, the number of police-reported incidents has increased from around 500 incidents to 700 per 100,000 people.

Bill C-590 targets drivers with a high blood alcohol content by increasing specific penalties for such drivers. The goal is to prevent these drivers from reoffending, since high-risk offenders cause the greater number of collisions, with higher fatality rates, and are more likely to be repeat offenders.

On a personal note, this became an interest to me because right next to my office in Prince Albert was a guy by the name of Ben Darchuk. He ran Ben's Auto Glass and employed roughly 10 to 20 people in his business. Ben had just bought a new boat, and on May 20, 2012, he was going to head up to Christopher Lake for the long weekend. His family had already gone up to secure a camping site. He hooked up to his boat and was heading up to the lake to meet with his family. He didn't get there. He was hit by a 22-year-old who was over 0.08 and who was also on cocaine. Ben was killed instantly. Ben is survived by his wife Leanne and two daughters and a son. He never got a chance to use that new boat.

You can look at that impact on Prince Albert and at impacts around the country, where everybody has an example like that. I can call on another example of a lady in Prince Albert who was pregnant and was killed by a drunk driver. She was 17 years old. They managed to save the baby.

There are too many examples of this type of scenario happening on our streets and on our roads. I don't want to say just “our roads”, because it's also our waterways. I want to stress that. A boat is a motor vehicle. This is not just about cars. A lot of people think they can have one or two beer, or five or ten, and go on a boat or a Jet Ski and think they're safe. They aren't.

What we're trying to do here is very simple, and I look forward to amendments to make this bill even better. The goal is to get these people off the road. We need to do that. We have to make sure that they don't do harm and get the proper counselling and treatment so they don't reoffend.

Mr. Chair, I'll end it there. I'll entertain questions.

[The Chair, Conservative, Mike Wallace]

Thank you for that overview of your bill, Mr. Hoback.

We'll start with questions from the New Democratic Party.

Madam Boivin, please.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Hoback.

This is interesting. I will reiterate how important the bill is, as it tackles a serious issue. I think it is a scourge too. We have to try to discourage people from doing things like that.

With all the awareness campaigns out there, I don't understand why, in 2015, people—I'm pulling my hair out trying to figure out what we can do to make them understand—

I know that you are focusing on the most serious cases. I practised criminal law, so I agree with you: a blood alcohol level of 0.16 means someone is pretty drunk.

In January, in the riding of Gatineau—which I represent—50 drivers who had been arrested for driving while impaired were discharged because of unreasonable delays. Everyone was shocked by that news.

Parliament may pass legislation, but there are other major things involved, including access to justice. Justice can also be faster. We need more judges and crown prosecutors so as to avoid passing legislation that seems tough, but then having people wake up and see that 50 drivers have been let go. I am not saying they were all guilty. Nevertheless, 50 people were charged, and they were discharged because their trials could not be held within a reasonable timeframe.

I'm glad you explained what gave rise to the bill. One of my concerns is about increasing the minimum sentence, which is already established in the Criminal Code, in the sections we are dealing with. There is a theory out there that the problem is due to the fact that minimum sentences are becoming the standard. It is not uncommon for the Crown or the defence to stick to minimum sentences. We have to keep in mind the Nur ruling, which held that the mandatory minimum sentence must not be exaggerated, as it might not pass the test. Courts often stick to the minimum sentences.

Is it not dangerous to set a minimum sentence, instead of increasing maximum sentences and leaving it to the court's discretion to rule based on the case and the individual's criminal record?

I am surprised to see that MADD Canada is not supporting your initiative. I don't know whether you know why that is, but perhaps you could explain it to us.

Have you looked into the legality of increasing mandatory minimum sentences in light of the Supreme Court of Canada's recent decision on those sentences?

[The Chair, Conservative, Mike Wallace]

Mr. Hoback, the floor is yours.

[Randy Hoback, Conservative, Prince Albert, SK]

Thank you.

First of all, thank you for your questions. I appreciate them.

It's interesting to talk about minimums and the whole content surrounding minimums. When I talked to some of the different driving instructors, I asked what would have the most impact in getting that message not to drink and drive out to young people when they're learning how to drive. They said that it's when you can tell them what is going to happen as a result of drinking and driving.

First of all, we're going to detect it, so we have to make sure that resources are in place to detect it. Second, it's inexcusable because of time restrictions to have 50 people not go through the system and not have their day in court when they have already been charged. It is something that I think the province will have to deal with in how they fund their courts. I can't comment on that. I don't know a lot about it, so I'll leave that alone.

What I will tell you is what these driving instructors are telling me. They're saying that when you can go in there and tell students what the impact is, when you tell them about the damage and the harm they will do to people and their families.... For example, we've seen schools at graduation time take a damaged car and put it on the front lawn just to shock students at graduation about what happens when you drink and drive. They're saying that if they have the ability to explain to the students the consequences, the students will take a second look and say that it's serious.

Another comment that came out when I was discussing it with MADD is that they actually would like to see higher minimum sentences. They'd like to see them be a lot more. In fact, their concern is that they're only going to get one kick at this and we won't get enough for it. I can understand why they're coming forward. We have to balance a combination of things. Again, I will take amendments from this committee. I'm wide open. What I feel is that this is just a good place to start.

When they're talking about marijuana and driving, and drugs and driving, that's another concern. With the fact that there are some tests coming into play in the future, MADD says that suddenly students realize that if they have a joint somebody is going to detect it, so all of a sudden they say they don't want to do that. The fear of the consequences of being caught, the fact that they can be caught, is having an impact on them and they're saying that they don't want to do it. That's the goal in this case.

[Françoise Boivin, NDP, Gatineau, QC]

Are you so sure about that? I've read, as I'm sure many of us around the table have, about these cases of people who are recidivists, who are hard-core cases. They don't get it. People are in shock sometimes to see the small sentences these people are getting. Again, often they have antécédents judiciaires, but the records are not updated, so sometimes I find we're moving ahead with certain laws but the whole system cannot sustain it.

Sometimes people will ask how this guy, who they know has been in front of the courts five times, is only getting that sentence. Except that the four other times were not in his record because the RCMP doesn't have the time or enough resources to input the records and so on, so I'm not so sure that these guys will get it because of this legislation. I was a bit curious to see if you have looked into it and have put some pressure where pressure should be put, and not necessarily on the provinces, because this is totally federal. It's the RCMP. There are a lot of things that have to go together before this can become a deterrent.

[The Chair, Conservative, Mike Wallace]

Your answer, Mr. Hoback?

[Randy Hoback, Conservative, Prince Albert, SK]

Again, you have to look at the other part of the equation too, at the victims, who in this case are Leanne and her children. They're looking at it and they want to see fair consequences for the action. You can't replace Ben. You never will. But when you hear that the person gets two years less a day and only a hundred-dollar fine, that's not acceptable either. You have to find that balance.

Again, I'm just telling you what I'm hearing in talking to different driving instructors and to people who say that this would have an impact in reducing the amount of drinking and driving.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

Our next questioner, from the Conservative Party, is Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Mr. Hoback, thank you very much for being here and welcome to the justice committee.

I want to thank you for bringing this bill before the House of Commons. I think you've really put your finger on something very important. It's an area of the criminal law that does need updating. You mentioned the tragic circumstances that took the life of your constituent Ben and took him away from his family. There's no doubt that this happens many times across Canada each and every year.

You also mentioned that you've had some consultations with MADD—Mothers Against Drunk Driving—in particular. Can you tell us what specifically the MADD organization or any other organization you consulted with told you about this issue of people who have serious drinking problems and are driving well above the limit, and what they told you about the penalties they thought were appropriate?

[Randy Hoback, Conservative, Prince Albert, SK]

Thank you for the question.

That's probably something that we should actually ask MADD to talk about in regard to exactly what their positioning is on this. But the reality is that when I discussed Ben.... In fact, as a result of Ben's accident, there is now a MADD chapter in Prince Albert, because the lady who came upon the scene at the time felt something needed to be done to bring awareness to her students in Prince Albert in regard to this issue.

As I said before, they would like to see even harsher penalties in this situation and a stronger message being sent through the courts, not only on alcohol but on drug-related situations where they're using drugs and driving.

It's interesting to talk to MADD, because you're talking to people who are very emotionally involved in this scenario. They've experienced something horrible first-hand in most cases, and you can see it in their faces. You can see it in their passion and their speech. They feel that they need something done on this file.

Are there things we can do to improve this bill? I hope we have some amendments that will make it better, I really do, but we still have to balance the obligations we have to the taxpayers, the obligations we have to constituents and everything else, and what MADD is asking for. I think I'll leave it there.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

You mentioned, Mr. Hoback, the sentence that was issued by the court in the case of your constituent. It sounded woefully inadequate to me. I'm sure you can find similar situations and other cases across Canada where the average person looking at the facts of such a situation and seeing the sentence would wonder what the heck happened. How could the perpetrator of such an awful and tragic incident receive such a light sentence?

When that kind of thing happens, what do you think the impact on the public is in regard to whether or not justice is being served?

[Randy Hoback, Conservative, Prince Albert, SK]

I know that in Prince Albert when we lost Ben.... He was a very well-respected business owner in the community, so let's just go through it from the community perspective and from what I heard around coffee row and in talking to people throughout the constituency. First of all, they couldn't believe it. They just asked if that was the best we could do, if that was it.

Look at the consequences of what happened. First of all, a wife lost her husband, the kids lost their father, employees lost their employer, and the community lost a great supporter—and that's just in the immediate area—all based on somebody being over the legal limit and having a little bit of cocaine in their system. For that, they got less than two years and a hundred-dollar fine. Where is that fair? I don't think you could ever say that anything is fair in that scenario. This definitely is not adequate. It definitely wasn't adequate enough to prevent this guy from getting behind the wheel and driving.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Do you think it causes people to lose faith in the Canadian justice system when they see those kind of things?

[Randy Hoback, Conservative, Prince Albert, SK]

Yes, I would agree with that.

When they see that scenario, they look at it and say, “What's the use?” They ask how it can be this way. That's when they come to us, as legislators, and say to us that we have to improve this, we have to make it better, and we have to deal with this. That's what I'm intending to do here.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

You mentioned that you're open to some amendments.

[Randy Hoback, Conservative, Prince Albert, SK]

You bet.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I think there is some fine-tuning that could be done here. We'll come back to you with some suggestions.

[Randy Hoback, Conservative, Prince Albert, SK]

I'd be happy to look at those, for sure—from all parties.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions.

Our next questioner, from the Liberal Party, is Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

Mr. Hoback, you said that everyone has a story that is connected to a tragedy from drunk driving. Mine is about Kristen Cameron. Kristen Cameron was a neighbour of mine who was a very promising young hockey player. She went to the U.S. on a hockey scholarship, had tremendous success, and was actually an All-American. She was rendered a quadriplegic by a drunk driver.

I absolutely agree with what your intentions are, but I'm not convinced that the answer to every problem that tugs at our heartstrings is mandatory minimum sentences. I guess that's where we differ, although I don't for a minute doubt the sincerity of your intentions.

However, I want to start with a more practical problem. I'm not sure how many people here, as well as you, have had an opportunity to speak to those who try these cases: prosecutors and defence counsel. What you would find if you were to do that is that even under the law as it presently exists, a practice has grown up, through jurisprudence, or through professional courtesy, or through some other protocol, whereby the prosecution will notify the defence if they intend to rely on subparagraph 255(1)(a)(ii). That's the section that has a minimum of 30 days for a second offence.

If they're going to rely on that, they notify the other side. It's quite routine. When they don't notify the other side, they proceed with their submissions on sentencing, and somebody with a second offence will get a penalty of less than 30 days, more or less by agreement.

My first question is, are you aware that the practice exists within the criminal courts in Canada? My second question is, have you have considered that practice in your bill? My concern is that if that is the practice presently used to get around a minimum today, your bill will be rendered ineffectual if that continues once the code is amended.

[Randy Hoback, Conservative, Prince Albert, SK]

First of all, thank you for bringing this to my attention. I'm not aware of it. I appreciate your bringing this forward. Again, that's why a committee is such a great venue to air situations like what you're saying, so that we can maybe find a suggestion or amendment that will prevent that from happening.

Again, what Canadians are expecting out of this committee is a piece of legislation that will deal effectively with people who drink and drive.

[Sean Casey, Liberal, Charlottetown, PE]

Another practical problem that strikes me with the bill is that there is a mandatory minimum for someone who has a blood alcohol level of 0.16 or higher, yet that mandatory minimum doesn't apply in the case of a refusal.

A better course of action for someone who, as you describe it, is “two sheets to the wind”, is to refuse and then be assured of avoiding the mandatory minimum. Had you considered that and are you comfortable with that as the result of the bill that you proposed?

[Randy Hoback, Conservative, Prince Albert, SK]

That did come up after the bill had gone through the House, so that's why I'm hoping one of the amendments will address that scenario. The first time, I did not consider it, but as I said, it was brought up in the debate in the House and identified there. Again, that's where the committee can do great work.

What I've provided here is a shell for the issue and the topic. I'm not a legal expert. I worked with the Library of Parliament to do the best we could with what we had to get something workable. I trust the people in this room to make it something that is impenetrable, so that it's a good piece of legislation that will actually have the effect we desire.