Justice Committee on May 11th, 2015

[The Chair, Conservative, Mike Wallace]

We'll call this meeting back to order for our next hour. Pursuant to the order of reference of Wednesday, October 8, 2014, we're dealing with Bill C-590, an act to amend the Criminal Code on blood alcohol content.

Mr. Pruden is joining us from the Department of Justice, if we have any questions at all.

This bill is a private member's bill. It has one clause. To get started, I will call clause 1.

(On clause 1)

Mr. Dechert, I know you'd like to speak to this. The floor is yours.

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

Thank you, Mr. Chair.

I would like to propose an amendment to subclause 1(1) of the bill.

I hope the committee members have it before them.

[The Chair, Conservative, Mike Wallace]

We're handing it out right now.

It's slightly different from what came in the mail—slightly, slightly different.

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

Right. Previously the amendment had two paragraphs in it, (a) and (b). I will not be moving (b).

Can I read it to the committee?

[The Chair, Conservative, Mike Wallace]

You can read it.

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

It says replace lines 13 to 21 on page 1 with the following:

of blood

(a) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding 10 years and

(i) in the case of a first offence, to a fine of not less than $2,000 and to imprisonment for not less than 60 days, and

(ii) in the case of a second or subsequent offence, to imprisonment for not less than 240 days; or

(b) is guilty of an offence punishable on summary conviction and is liable

(i) in the case of a first offence, to a fine of not less than $2,000, and

(ii) in the case of a second or subsequent offence, to imprisonment for not less than 30 days.

The rationale is that while we all support higher penalties for those who drive with a high blood alcohol concentration and for those who drive while impaired and cause bodily harm or death, there are concerns regarding the specific proposals for change in Bill C-590.

Accordingly where proposed in this amendment subclause 1(1) of the bill proposes an indictable offence for having a blood alcohol concentration exceeding 160 with a mandatory minimum penalty of $2,000 plus 60 days imprisonment and 240 days on the second offence.

The concern is that these very significant penalties, particularly for a first offender, could lead to many cases where the driver simply refuses to provide a sample because the penalty for the refusal offence has a mandatory minimum penalty of only $1,000. This was raised by a number of members of the committee during the examination with witnesses last week.

Part (a) of the motion therefore proposes that the offence of driving with a blood alcohol concentration of more than 160 would be a hybrid offence, so on indictment the penalties would remain as proposed in the bill and on summary conviction the mandatory minimum fine for a first offence would be $2,000, which is double the minimum fine for impaired driving, and for a second or subsequent offence the minimum penalty would be 30 days in prison.

By making these changes we believe that in most cases where the driver has a blood alcohol concentration of over 160 but there's no injury or death the $2,000 fine combined with the mandatory prohibition on driving for one year would be a sufficient deterrent. The very severe penalties on indictment should at the discretion of the prosecution be reserved for the most serious cases, for example, where the blood alcohol concentration is well above 160 or where the driver caused significant property damage.

For those reasons, Mr. Chair, we're proposing and we'll support this amendment.

[The Chair, Conservative, Mike Wallace]

Okay. Thank you very much.

There's an amendment on the floor.

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Just to be clear the one we have received we can rip up. It's no longer good.

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

Yes.

[Françoise Boivin, NDP, Gatineau, QC]

Excellent.

In fact, you mention a hybrid offence punishable on summary conviction. That is what we understand.

I would like to put a question to the Department of Justice expert.

Last week, we shared a fairly important point with the sponsor of the bill. We indicated that there could be all kinds of shady goings-on in the wake of his bill.

For instance, take the offence of refusing to breathe into a breathalyzer when asked to do so by the police; this will mean that the individual would have a far lesser sentence. So there could be attempts to avoid the impact of Bill C-590.

What does the department have to say about that? Is there not a type of injustice there? Indeed, word will get around. This will make Bill C-590 completely useless. Repeat offenders and people who drink very heavily will spread the word so that they do not go beyond the 160 milligram threshold mentioned in Bill C-590. They could simply and consistently refuse to blow into the breathalyzer.

[Hal Pruden, Counsel, Criminal Law Policy Section, Department of Justice]

First, thank you for the question.

I think it's fair to say that most of the offenders, perhaps even with refusal offences but certainly with impaired driving and over a milligram's offences, are first offenders. They're not people who have repeatedly committed the offence of impaired driving, and I doubt very much that they would be looking at the offence and saying that, for a hybrid offence if the motion is to pass, the minimum fine is $2,000 if I'm over 160; and the fine, if I refuse, is a minimum of $1,000 if the crown proceeds by way of summary conviction, which they do in most first offender cases.

For the vast majority of offences, it would be my sense that, no, the change in the motion will not lead to more people saying that they're going to refuse because it's $2,000 on summary conviction, instead of $1,000—

[Françoise Boivin, NDP, Gatineau, QC]

Just so I make sure I understand your answer, you're saying that the majority are first offenders and as such would not be too familiar with the system. That being said then, isn't there a danger in the case of the people we want to get with Bill C-590, with the jurisprudence that the Supreme Court of Canada just set with the Nur decision concerning the mandatory minimum sentence? Because isn't there a chance that maybe somebody who could have pleaded something to the court, maybe a bad decision... We've all been young at some point in time and....

I'm not saying that it is okay to make this mistake. It is a mistake that may cost dearly.

Isn't there a potential risk--and we should see these things coming--that an absolutely pathetic case will go before the courts and lead to a situation where stricter minimum mandatory sentences may be deemed unconstitutional and inconsistent with the Canadian Charter of Rights and Freedoms, or considered to be cruel and unusual punishment under sections 7 or 12? I do not remember the exact number of the section concerned.

[Hal Pruden]

I want to be very clear that I'm not in a position to provide charter legal advice to the committee. That being said, it might be fair to simply point out that the change proposed in the motion is to have, instead of the current minimum fine of $1,000, a minimum fine of $2,000.

[The Chair, Conservative, Mike Wallace]

Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair, and I'm sure the members opposite never thought they'd hear this from me, but I welcome this amendment, which provides some discretion to the prosecution in these cases. I'm particularly glad to see it come from the government, because it has a much better chance of passing.

My question for you, Mr. Pruden—and I hope and expect that you saw the transcript or that you were present when Mr. Hoback testified—is the same question that I posed to him. It's about the practice that's grown up in at least some of the provincial and magistrates' courts where the prosecution gives notice as to whether they're going to be relying on the subsections within section 255 that impose a jail sentence.

What I mean is that a practice has grown up, whether it's by guidelines, whether it's by professional courtesy, or whether it's because there is some jurisprudence that requires them to do it, that the prosecution will give a heads-up to the court and to the accused if they intend to rely on the fact that what's before the court is a second offence or a third offence and therefore will attract a jail sentence. In many instances they exercise their discretion not to give such notice and have the case proceed as if it weren't a second offence.

My question to you is the same one I asked Mr. Hoback. Are you familiar with that practice, and if so, can you give us some sense how it has grown up, and is there anything in this bill that will have any impact on it?

[Hal Pruden]

The short answer is, yes, I am familiar with the notice that is required of the crown before it seeks a higher penalty based on a person's prior convictions. That is statutory, so it's not just a practice. There is a requirement in the Criminal Code in section 727 for the crown to give that notice.

That having been said, it's very important to know that the provinces and the attorneys general of the provinces and of the federal government will typically have policy manuals that include guidelines on when the crown should use a look-back period, which means how far I look back before I tender that notice seeking the higher penalty. In some cases it might be 10 years. I'll look back 10 years and if the person is clear for a certain number of years, then I won't file my notice seeking a higher penalty.

The judge is always required to fashion a fit and proper sentence based on all the factors whether they're mitigating, or whether they're aggravating. Interestingly, in Canada, the crown as well as the defence may launch an appeal against the sentence if they believe the judge has not given a fit and proper sentence based on all the circumstances. One can conceive of situations where the notice is not filed because of the policy, but nonetheless the prosecution is asking for more than the minimum penalty based on all the factors surrounding the current offence.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you.

Further to the amendment.... By the way I should have mentioned the amendment is in order. I should have said that right up front.

Any further questions or comments on the amendment?

(Amendment agreed to)

(Clause 1 as amended agreed to)

Shall the bill carry as amended?

[Some hon. members]

Agreed.

[The Chair, Conservative, Mike Wallace]

Shall the title carry?

[Some hon. members]

Agreed.

[The Chair, Conservative, Mike Wallace]

Shall the chair report the bill, as amended, to the House?

[Some hon members]

Agreed.

[The Chair, Conservative, Mike Wallace]

Shall the committee order a reprint of the bill, as amended, for the use of the House at report stage?

[Some hon. members]

Agreed.