Evidence of meeting #28 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was driver.
A recording is available from Parliament.
Liberal
Chris Bittle Liberal St. Catharines, ON
In the other jurisdictions you're aware of, is there a public education component to say the police have these new tools so the public is aware of that and that perhaps leads to that reduction?
President, Families For Justice
The penalties need to be enforced. That's the problem: we have these laws in place for many things, but the penalties don't back them up.
Everybody knows that you shouldn't drink and drive, but we still are losing thousands of people because people are willing to take the chance. They understand—and I'll be very honest here; I don't like saying this, but we spoke to 117,000 people in the last five years in doing our petition. I asked people how they felt about the criminal justice system. It bothered me because almost every answer people gave me is that our justice system in Canada is a joke. As a Canadian, I'm very upset by that, but that's how people refer to our justice system, because they say there are no punishments, or they're very little. Nobody's held accountable for anything, and there's a revolving door at the courthouse. I work in an RCMP detachment, and I see how frustrated members are when they recommend charges. They know somebody has done the crime and will get next to nothing in punishment.
Liberal
Chris Bittle Liberal St. Catharines, ON
Thank you.
Are either of you aware of a reduction in drinking and driving offences in the jurisdictions in which passive detection has come into law or come into effect or is being used by police?
Liberal
Gagan Sikand Liberal Mississauga—Streetsville, ON
I don't want to misquote the jurisdictions, but I have read that not only has the detection rate gone up, but impaired driving has gone down because of the deterrence effect. I will provide this information to the committee afterwards.
President, Families For Justice
I would also note that I think Australia has gone down 39%. I know that in Colorado and Washington state, where they legalized marijuana, their impaired driving has gone up by 17%. They don't have the passive detection devices.
Liberal
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Ms. Kaulius, for your powerful testimony. Certainly, I express, as I think all honourable members do, our deepest sympathies for the very awful situation.
I also want to thank Mr. Sikand for his leadership on this very important issue.
I can say I voted against this bill at second reading, primarily on the basis that I didn't see it going far enough in increasing sentencing, imposing consecutive sentencing. Both of those things are included in my colleague Steven Blaney's bill, Bill C-226. Nonetheless, I certainly support the underlying objective, which is that if we can do anything to hold to account persons who drink and drive, we should, and also do what we can to discourage drinking and driving.
I will admit that one of the concerns that I have with this bill, and it's a concern I also have in the case of Bill C-226, is this form of random breath testing, passive breath testing. I think, quite frankly, it can be a real infringement on individual liberty. That being said, I certainly am very open to supporting it if there is clear and demonstrable evidence that this is going to have a real impact on keeping people who are impaired off the road and if lives are ultimately saved.
I know, Ms. Kaulius, in response to the question from Mr. Bittle when he asked whether you or Mr. Sikand are aware of jurisdictions where this type of testing has had a demonstrable impact in keeping people off the road, you referred to Australia.
One point that I would make is if you look at Australia, they were one of the first jurisdictions to bring in a form of random breath testing back, I think, in 1980 or 1981, and that was at the first wave of awareness about drinking and driving. In Canada, we saw checkstop programs brought forward not long after and, I think if you look at the statistics, there was an immediate decrease; whereas, we are now 30 or 35 years in, in terms of awareness and prevention in Canada. I guess in that regard, the context is quite different.
Would you agree?
President, Families For Justice
Yes. As you say, Australia has been for many years, and I know New Zealand, France, and other countries have been using these devices and have had very good results. There's a culture and a mindset there that they treat drinking and driving differently than we do in Canada.
We've had friends from Europe, and when they come here, if they go for dinner and have a drink, there's no way. They say you can't drive back home. That's just the culture. It's a different mindset. They can't believe that we allow drinking and driving here in Canada, after so many countries in Europe and elsewhere don't allow it.
Liberal
Gagan Sikand Liberal Mississauga—Streetsville, ON
Thank you, Mr. Cooper, for your question. You covered a number of things, but I did want this private member's bill to have the legs to make it to the end and become law. I also wanted to introduce something that would be effective, but at the same time mesh well with others who wanted to address this issue.
You cited random stops and sentencing. Again, this would mesh really well with that, because if it's ever legislated that you could have random stops, the passive device would be a great tool to detect whether that person has been driving under the influence. Also, if it's ever legislated that we have mandatory sentences in Canada, the sentence would still be under the offence of vehicular homicide, the idea of calling the offence what it is.
In that sense it meshes well with what you were talking about, and at the same time it's not overly convoluted. It should, hopefully, have the legs to become law.
President, Families For Justice
There are two separate bills. One is being brought forward by the Liberals and one by the Conservatives. We appreciate both members for doing this. These are both bills that need to be passed in the interest of public safety. That's the bottom line here. It's public safety for all Canadians that needs to be addressed. Right now we are losing thousands of innocent Canadians, and families are being absolutely destroyed. This is not a partisan bill. It is about public safety.
Liberal
The Chair Liberal Anthony Housefather
Thank you. Mr. Cooper's time is exhausted. We're going to move to Mr. Rankin.
I just want to point out they're not bills being brought forward by the Liberals or by the Conservatives. One is being brought forward by Mr. Blaney, and one is being brought forward by Mr. Sikand. They are private member's bills, and they're all supposed to be judged on a non-partisan basis by all of us.
Mr. Rankin.
Liberal
The Chair Liberal Anthony Housefather
All right.
May I ask one small question, Mr. Sikand?
I've been listening to the committee members posing questions. If I have it right, passive detection devices today are allowed. You're saying the law would make it clearer that they're allowed and they would not be subject to litigation, but essentially, they're allowed. As well, you're changing the name of the crime, but you're not changing the sentence. So the real meat of this law is proposed subsection 254(1.2), which establishes reasonable grounds for the officer to move forward to the roadside device simply by registering a positive screening on the device.
Is that essentially correct as to what's changing in the law, that now, if this is used, the officer would then have reasonable grounds to move forward to the next step, which is the roadside test?
Liberal
Gagan Sikand Liberal Mississauga—Streetsville, ON
Not necessarily. The passive device isn't necessarily allowed; it's just not not allowed, which is what we want to clarify to make it explicitly allowed to be used.
Liberal
The Chair Liberal Anthony Housefather
Basically, there are two things then. You're saying that you want to be more comfortable...that even though the RCMP is already in possession of it, you want to make sure it is clear in the law that it's permitted so that there is not further legal contestation related to the device, and you're then establishing a standard as a result of a positive test under the device that allows you to move forward to the next step.
Liberal
Gagan Sikand Liberal Mississauga—Streetsville, ON
Just because of the nuances.... The RCMP may be in possession of the device. Whether or not they use that feature, I don't know. That's exactly what I'd want to legislate, to make it explicitly clear that officers can use this feature without fear of recourse and its perhaps not holding up in court. That's for the passive detection. And then, yes, with the vehicular homicide, I would want to change the name.
Liberal
The Chair Liberal Anthony Housefather
Thank you, and we'd really appreciate your coming back to the committee with the information you said you'd collect related to different jurisdictions and how they use the device.
Thank you very much to both of you. Your testimony was very compelling and we thank you very much.
October 18th, 2016 / 12:20 p.m.
Liberal
The Chair Liberal Anthony Housefather
We're going to take a very short break for the next witness to come forward.
Liberal
The Chair Liberal Anthony Housefather
I'd ask everybody to please take their seats.
It is a great pleasure to welcome Mr. Pruden from the Department of Justice, who is the counsel on the criminal law policy section, to talk to us about Bill C-247, an act to amend the Criminal Code (passive detection device).
Mr. Pruden, as I understand it, you will not be making a statement, because this is a private member's bill. You will just be taking questions from the members of the committee.
Hal Pruden Counsel, Criminal Law Policy Section, Department of Justice
Yes, that's correct.
Liberal
The Chair Liberal Anthony Housefather
Perfect. The first question is from the Conservative side.
Mr. Falk, will you be going first?
Conservative
Ted Falk Conservative Provencher, MB
Sure.
Do you see any complications that would be present for any litigation that you're aware of from a bill like Bill C-247?
Counsel, Criminal Law Policy Section, Department of Justice
If you will permit me, I will introduce my reply by stating that there are two Criminal Code offences that relate to, let's call it, impaired driving. The first offence is operating a motor vehicle, a vessel, aircraft, or railway equipment while impaired by alcohol or by a drug. The second offence is related to alcohol alone. It's an offence to operate a vehicle, a vessel, an aircraft, or railway equipment while above the legal limit, which is 80 milligrams of alcohol in 100 millilitres of blood.
Let me further indicate that in respect of the second offence, which is sometimes called the per se offence—that means that simply being at that level is the offence, regardless of whether you show signs of impairment or not—if you were driving at that level, you are committing a Criminal Code offence. So the tools that were implemented by Parliament in 1969, in relation to investigating this over 80 milligrams offence, are tools that are called approved instruments. They give the actual blood alcohol concentration level evidence that can be used in court to prove the offence.
With respect to roadside investigation, in 1969 Parliament passed legislation for approved screening devices. These are screeners. The result from the screener can't be used in court. That result can only be used to go to the next level of the approved instrument. If someone fails on the screener at the roadside, the police can demand that they give a deep lung breath sample on the approved instrument, and also, I should say that the sample which is received on the approved screening device is a deep lung sample of breath.
Having laid this foundation, I should quickly mention that the threshold to make a demand on the approved instrument at the police station is a reasonable belief that the driver has committed an impaired driving crime, whether that is the crime of impaired driving or the crime of being over the legal limit.
The threshold has been called very low for the approved screening device. The threshold is simply a suspicion of alcohol in a driver's body. Currently, the suspicion is arrived at, as has been indicated by earlier witnesses, through things like odour of alcohol on the breath. One could add glossy bloodshot eyes, fumbling with documentation.
I apologize for being very long in coming to your question, but I think it should also be pointed out that police currently, either common law or under provincial statutes, have authorization to make a random stop of a driver in order to check their provincial driving licence, in order to check up on the vehicle fittings, or to check up on a driver's sobriety.
Now, I finally get to your question—
