Evidence of meeting #62 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 drivers.
A recording is available from Parliament.
4:55 p.m.
Liberal
4:55 p.m.
Director, Public Safety Program, Canadian Civil Liberties Association
I still think there would be charter issues. It would still be assessed through a section 1 analysis. I think the argument defending it might be a little bit stronger because the discretionary component is so curtailed.
4:55 p.m.
Treasurer, Criminal Justice Section, Canadian Bar Association
I think in practice that will not be the case. In practice when there is a line of vehicles stopped, the police will, because of the time involved, certainly wave certain people through, and certain profiling will take place. You and I would probably be waved through, and other individuals would probably be stopped based on other characteristics.
4:55 p.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
So you don't believe that in practice it's truly going to be mandatory but rather that it will in practice be selective?
4:55 p.m.
Treasurer, Criminal Justice Section, Canadian Bar Association
With the resources needed for it to be mandatory, I don't see that it will be possible.
4:55 p.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
If they said that if they had more than five people in the lineup, everybody else would go, and then as soon as one car went, the next car to come along would be stopped and there would always be five cars in line, it seems to me they'd be able to manage their workload in that way and still maintain the mandatory nature of the testing. Would you see that as plausible?
4:55 p.m.
Treasurer, Criminal Justice Section, Canadian Bar Association
Yes, but again, it's the enforcement. How are you going to enforce that that's how it's employed?
4:55 p.m.
Liberal
4:55 p.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
You expressed some concerns about per se testing for drug impairment. Would you like to speak to that? Do you think it's more appropriate to kind of back away and go to a drug recognition expert kind of evaluation, a subjective evaluation by someone who is highly trained rather than to do per se testing for drugs?
4:55 p.m.
Treasurer, Criminal Justice Section, Canadian Bar Association
The difficulty with per se testing is that drugs affect everybody differently, so it's not going to be possible, at least from my understanding having talked to the experts, to say that everyone will be impaired at a particular level. The only answer to that, unless there is some science that evolves to deal with that, is to perhaps have a sample or substance and some sort of other testing in conjunction with that. The only other option is to remain with the drug recognition experts.
4:55 p.m.
Liberal
The Chair Liberal Anthony Housefather
I'd like to thank the members of the panel for sharing their very useful expertise with us. We really appreciate it. Given that we're running quite late, I'd ask the next panel to come on up. Again, our greatest appreciation to you guys for coming in.
We're going to recess for a second until the next panel can come up.
5 p.m.
Liberal
The Chair Liberal Anthony Housefather
Ladies and gentlemen, we're going to reconvene with the next panel. Again, apologies to the witnesses for keeping you waiting.
This panel is incredibly distinguished. We have appearing as an individual, Professor Peter Hogg, who is a scholar in residence from Blake, Cassels & Graydon LLP, and certainly if not pre-eminent, one of our most eminent constitutional scholars. We have Ms. Markita Kaulius, the president of Families For Justice, who has appeared before us before. We are joined by Mr. Jeff Walker, the key strategy officer for the Canadian Automobile Association. Welcome to all of you. Thank you so much for coming.
We're going to start with Professor Hogg.
5 p.m.
Peter Hogg Scholar in Residence, Blake, Cassels & Graydon LLP, As an Individual
Thank you, Mr. Chair.
I have given the committee a four-page document, so I will briefly summarize that. The document is available to the committee with a somewhat fuller analysis than I can make in my 10 minutes.
I have read Mr. Solomon's written submission and, of course, I listened to him because I've been in the committee room from the beginning. I accept completely what he says about the benign impact of random breath testing. I'm not going to talk about that at all. I'm simply going to talk about the constitutional questions which have been raised by some of the witnesses.
First of all, section 8 is the provision that prohibits unreasonable search and seizure. The CCLA and the CBA thought that random breath testing would violate section 8. I don't think that's correct. All that section 8 says is that everyone has the right to be secure against unreasonable search and seizure. It seems to me that concerns about road safety are such that steps like random breath testing will be accepted as reasonable because they're directed, of course, at adding some more regulation, admittedly, but to what is already a highly regulated activity, and it's a highly regulated activity because it's a very dangerous activity.
I agree with Professor Solomon that random breath testing is going to typically—some of the questioners pointed out that this won't always be the case—take place at a stationary roadblock in which the police officers will have no discretion, and they will simply test everybody. Therefore, I think the section 8 concerns are not a problem.
There's also the section 9 concerns. Section 9 is the provision that prohibits an arbitrary detention. The Supreme Court has already addressed random stopping of vehicles, not for random breath testing of course, but to check licensing, ownership, insurance, as well as sobriety. The court has said that those are arbitrary stops because they are random, but they are justified under section 1. Random breath testing, RBT, is going to fall out in exactly the same way; it will be accepted as justified under section 1 because of its contributions to road safety.
The right to counsel was mentioned by the CBA representatives. What section 10(b) of the charter says is that everyone has a right on arrest or detention to retain and instruct counsel without delay. Obviously, it's completely impossible to allow people to retain and instruct counsel in random breath testing, so that will not be able to be complied with. It shouldn't be complied with, because for people who want to instruct counsel it will probably take several hours to contact their counsel, by which time the random breath testing will be useless.
There is a case called Orbanski which I talk about in the little submission I have made to the committee. It was decided by the Supreme Court in 2005. There were two drivers. One had been stopped at a random stop, and the other had been stopped because he was driving erratically, but they both challenged the stoppage because they had not been advised of their right to counsel when they were stopped. Justice Louise Charron of the Supreme Court of Canada said, for the majority, that since the major purpose of a police power to stop drivers was to check sobriety, and since time was of the essence in checking sobriety, the provincial law, which said nothing about right to counsel—in this case, it was a provincial law—should be interpreted as not permitting drivers to retain counsel before giving a breath test. She said that's how the legislation should be interpreted.
I think Orbanski would save RBT from the ruinous effect of the right to counsel. I say “ruinous effect”, and it would be a ruinous effect. It is going to be an infringement of the right to counsel, but it's one that will be easily justified under section 1.
My paper goes on to talk a bit about section 1, but I don't think there's any need for me to detain the committee on that, because it's there in my paper. Those are the main provisions that are being invoked in favour of a constitutional challenge to the proposal.
5:10 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much, Mr. Hogg. We very much appreciate it, especially the succinct time you put in. It was only seven minutes.
Ms. Kaulius, you're up.
5:10 p.m.
Markita Kaulius President, Families For Justice
Thank you.
Dear MP Housefather and honourable members of the Standing Committee on Justice and Human Rights, thank you for allowing me to be here today to speak with all of you.
My name is Markita Kaulius. I am the founder and president of Families For Justice. I am here today representing thousands of Canadian families that have had our children and loved ones killed by impaired drivers in Canada.
On May 3, 2011, my 22-year-old daughter Kassandra went to the university to write a final exam towards her teaching degree. Later that day, she went out to coach a girls' softball team, and pitched a softball game herself that night. Kassandra left the park and was driving home when she was stopped at a red light. The red light turned green, and she proceeded into the intersection to make a left-hand turn. An impaired driver came speeding down the curb lane and accelerated through the intersection on a red light that had been red for 12 seconds. The driver got airborne over railroad tracks and slammed into my daughter's driver-side door, striking her at 103 kilometres an hour. Kassandra's car was sent up and over a median about 1,200 feet down the road, and debris was sent across four lanes of traffic. The driver got out of her car and went up to look at my daughter dying, then fled the scene of the collision. Kassandra never came home. She was killed in a catastrophic accident. I'm sorry, it was not an accident; it was a collision. She died from multiple injuries she received from being crushed to death at 103 kilometres an hour.
During that same year, 1,074 other innocent Canadians were killed, and over 62,000 people were injured in Canada by impaired drivers. Even with all the education and awareness campaigns we have had over the past 35 years, impaired driving is still the number one criminal cause of death in Canada.
Each year statistics show impaired driving causes the deaths of thousands of innocent people across this country. Statistics show on average between 1,200 to 1,500 people per year are killed by an impaired driver—that equates to about four to six people a day—and 190 a day are injured by impaired drivers in Canada.
Numerous lives are tragically cut short by impaired drivers who make the decision to be reckless in their actions. They make the wilful choice to put others at risk on our roadways and highways by driving while being impaired by either drugs or alcohol. Somewhere today in other communities, there is the next victim of impaired driving.
A speeding vehicle in the hands of an impaired driver becomes a 2,000 pound weapon. It is as much a lethal weapon in causing death as a loaded gun or a knife. The only difference is that the weapon of choice is different and the victims are at random on our roadways and highways, and it causes more severe injuries. It happens in every city and town across Canada. The deaths are all vehicular homicides, and the devastation to families is life changing.
Families For Justice has been lobbying the federal government in the form of several bills over the past six years. We supported Bill C-247 and Bill C-226, which were both voted down by the federal government, and over the past six years while we've been waiting for the past and present governments to make changes to laws in Canada, over 6,000 more innocent lives have been lost to impaired drivers in Canada.
In 2011, fatalities involving a drinking driver accounted for 33.6% of total deaths on Canada's roadways. The statistics reflect the growing rate of drug presence in drivers involved in fatal crashes as well. In fact, drugs are now more present than alcohol in drivers involved in fatal crashes.
An estimated 30% of impaired driving offences are by repeat offenders. These offenders are more likely to drink and drive frequently, often at higher breath alcohol concentration levels, and they have a history of prior convictions. Some have alcohol dependency issues.
Those with chronic dependency issues are often employed and driving through our neighbourhoods, through school and bus zones, in the morning rush hours with high blood alcohol levels from the previous night's drinking or drugging. They are also relatively resistant to changing their behaviour, as evidenced by their continued offending behaviour, even after they have faced penalties. Even though these offenders represent a relatively small proportion of the driving population, they account for nearly two-thirds, or 65%, of all alcohol-related driving fatalities and they were responsible for making 84% of all drinking and driving trips. In other words, they drink and drive more frequently than any other type of impaired driver.
We owe it to the lives lost and to the families to rededicate ourselves to the task of finding the most effective measures to finally put an end to impaired driving on our roads. Canadians are counting on the Government of Canada to not give in to the temptation to simply talk tough in the wake of these tragedies. We are counting on you to stop the next crash, the next injury, and the next death, and focus on effective deterrents. It is time now that we measured the progress of making real changes to Canada's impaired driving laws, not in the years that you have just had a discussion about it. This legislation will save lives and hold people accountable for their actions in committing crimes.
The impaired driving act was designed to address inconsistencies in the Criminal Code, harmonize and increase penalties for repeat offenders, simplify the burden of proof for establishing blood alcohol concentration, and speed up impaired driving related court cases. The legislation should contain important measures that are essential to combatting impaired driving, but there are still items that need to be addressed in this bill.
While we support many of the proposed changes in Bill C-46, we strongly feel there are two urgent changes that need to be considered and have not been addressed. Drivers of all ages still risk the chance and drive after consuming alcohol or taking drugs, and only very strict deterrents would impact the crucial thoughts of a driver before they drink or do drugs. Tougher laws must be implemented to enforce deterrence.
Families for Justice submitted over 117,000 names of Canadians on petitions asking the federal government to change the Criminal Code of Canada and the offence of impaired driving causing death. We ask that this offence be redefined as vehicular homicide as a result of impairment. We also do not see any mandatory minimum sentencing for anyone convicted of impaired driving causing a death, which was also requested on our petition from the Canadian public. We feel both these changes in the laws are very strong deterrents to add to Bill C-46. The driver has broken two driving laws: one, by driving impaired, and two, by causing the fatality of an innocent person.
We have the support of the B.C. chiefs of police, the Edmonton police, the RCMP, the Alberta Federation of Police, the Canadian Association of Chiefs of Police and there isn't a first responder, a paramedic, a police officer, a fireman, or a citizen who doesn't hope that one day the number of tragic impaired driving collisions will stop.
Changing the Criminal Code of Canada would finally call this crime what it rightfully is, vehicular homicide as a result of impairment. Minimum mandatory sentencing would finally hold people accountable for their actions in committing crimes against society, and in causing the deaths of innocent people. With additional changes we propose in Bill C-46, it would become one of the most important pieces of legislation for public safety that would become law and affect Canadians now and for future generations.
For 16 years, the law has set 10 years' imprisonment for causing bodily harm and life imprisonment as the maximum punishment for impaired driving causing death. In Bill C-46, the maximum penalty for dangerous driving causing bodily harm would increase from 10 years to 14 years. For impaired driving causing death, the sentence has not changed. It says in the Criminal Code of Canada that a person is liable on conviction of the indictment to imprisonment for life for causing a death, but sadly, no judges ever give this sentence for causing death in impaired driving cases.
The average sentence for impaired driving causing death is two to four years. The actual amount of time served in a two-year to four-year sentence is six months to 12 months. That's it. You can raise the sentence on a piece of paper in the Criminal Code but the reality is the lengths of sentences are never given out by judges in Canada in impaired driving cases where death or multiple deaths have occurred. No one in Canada has ever received a life sentence in prison for causing the death of multiple family members.
The courts need to acknowledge that the deaths that arise from impaired driving are homicides. They are vehicular homicides. People are being killed by the reckless action of others who make the choice to put others at risk by driving while being impaired. There is no excuse in this day and age for anyone to drive impaired as every one of those deaths was 100% preventable.
Over the years, judges continue to give out low sentences and fines in impaired driving cases. Therefore, those cases become precedents for future sentences. A prosecutor recently told a friend of mine who is a police officer that only about 3% of cases actually ever make it to trial. After plea deals are done and charges are dropped, he said only about 3% actually make it to trial.
We have seen such sentences as a $100 fine, a $1,500 fine, seven weekends in jail, and these sentences were given out to a driver for his third offence for impaired driving. This time he killed two women. Basically he got a $750 fine per death and served three weeks in jail for killing. One of these women left six children orphaned. The pain and the suffering of that family will last a lifetime.
Another couple, Brad and Krista Howe, were killed in Red Deer, Alberta. They left five children orphaned as well. The impaired driver who killed them was given a two-year sentence and was released after serving only seven months in jail. He served three and a half months per death. We've seen sentences of $2,000 fines, 90 days to be served on weekends only, four months in jail. That driver is appealing his four-month conviction.
Entire families have been killed by impaired drivers: Catherine McKay killed Jordan Van de Vorst, his wife, his son Miguire, age two, and daughter Kamryn, age five, in Saskatoon, Saskatchewan. The driver was convicted in 2016. It was her third impaired driving charge. She was sentenced to 10 years, and spent one month in jail. She was then sent to a healing lodge. Even the elders at the healing lodge shared with the deceased family that they didn't feel that was appropriate, that this woman should have spent some time in jail. She will come up for parole in February 2018 after serving 18 months out of a 10-year sentence. She will have served four and a half months per death.
Mr. Marco Muzzo killed three children in Vaughan, Ontario, Daniel, age nine, Harrison, age five, and Milly, age two, as well as their grandfather, and seriously injured the grandmother and aunt. In one fell swoop, he decimated an entire generation of the Neville-Lake family, its legacy and its future. Mr. Muzzo will come up for a parole hearing 18 months into his nine-year sentence. He will have served four and a half months per death. Jennifer and Edward Lake received a lifetime sentence of being without all three of their children.
Over the past several years an average sentence handed down for impaired driving has been two to four years. The average sentence actually served in jail is about six to 10 months.
We continually hear from the public that our justice system is broken and failing. Presently, victims feel that a human life is of no value in our criminal justice system and the victims are hardly considered. After attending many court cases over the last six and a half years, it appears in a court of law that often the investigations themselves are on trial and not the accused. The public feel there is a revolving door at the courthouses across Canada and that the courts are not holding people accountable for breaking the law and are depriving Canadians of their fundamental right to safety.
Parents have told us the message coming from our courts to Canadians is loud and clear and it is unmistakable: criminals have more rights than their victims. Even when writing a victim impact statement, victims have strict guidelines on what they are allowed to say and are limited on the number of pages they can write, while the accused is allowed all of the character references they can submit to court. The accused is allowed to see the victim impact statement before the victim even is allowed to read their victim impact statement. People keep asking us why the sentencing laws are so lax in Canada. We wish we could answer that question. Maybe someone here today could answer that for us. Why are the sentences so low in Canada?
We need stronger deterrents and tougher sentencing laws in Canada. We believe that mandatory minimum sentencing is not for every crime. However, Canadians do believe that when an unnatural death has been caused to an innocent person, the accused should be held accountable for causing a death and receive an appropriate sentence based on the severity of the crime. The sentences that are being handed down by our criminal justice system are inappropriate and need to be changed, and just changing them on paper and not having them ever enforced will not make a difference.
Most people who currently break the laws do so because they know there are very little consequences that will happen to them in our criminal justice system. If a mandatory sentence of five years was handed down, the accused would only serve about 10 to 12 months, which is still a low sentence for killing someone but is better than the six months or the $1,500 or $100 fine that is being given out now. The victim's family receives a lifetime sentence of being without their child or loved one and the victims receive a death sentence. Those who are not killed but who are injured may live a lifetime with extensive injuries or disabilities to deal with.
The convicted person is serving the least amount of sentence after committing the crime of killing or injuring a person. In Canada, impaired drivers will continue, and magnify, with the upcoming changes to marijuana laws. This crime will only grow if there are no mandatory minimum sentences handed down for impaired driving causing death. Considering the upcoming lessened restrictions on marijuana, not to mention the current crisis of opiate overdoses, which also happen in vehicles, the public is fearful of more impaired driving fatalities. Changing the Criminal Code of Canada would cover future deaths caused by both alcohol and drug impairment.
5:25 p.m.
Liberal
The Chair Liberal Anthony Housefather
Ms. Kaulius, at this point you're almost at double your time. Could I ask you to wrap it up, please.
5:25 p.m.
President, Families For Justice
I will. Sorry. I just want to get this one part in here.
With the legalization of marijuana, research has shown that impaired driving stats rose. In Washington state they rose from 8% in 2013 to 17% in 2014. In Colorado they tripled. From 2005 to 2014 they went from 3.4% to 12.1%.
I'll be very brief here, sorry. While we support the random breath testing and the lowering of breath alcohol concentration to .05, we hope that the federal government will make additional amendments to Bill C-46. We know that some people may not agree with changes to the laws, but these changes are being proposed in the interest of public safety to save all Canadians. The public have accepted changes in laws regarding no smoking in restaurants and public places, the mandatory wearing of seatbelts, and we go through tighter security at airports and border crossings because we know it will keep the public safe. We get it and we just do it.
Bill C-46 is an extremely important bill. As the justice and human rights committee, you have an opportunity to make one of the most important decisions in the future laws in Canada. Public safety should be a prime consideration as every citizen deserves the right to their life and safety in their community.
Thank you.
5:30 p.m.
President, Families For Justice
I'm sorry I went over. I apologize. I have a lot to say.
5:30 p.m.
Liberal
The Chair Liberal Anthony Housefather
You deserve the latitude. You've suffered enough. On behalf of all members of the committee, again, we extend our deepest condolences on the loss of your beautiful daughter.
5:30 p.m.
Liberal
The Chair Liberal Anthony Housefather
Anyway, thank you for coming.
We'll move over to Mr. Walker.
Mr. Walker.
September 18th, 2017 / 5:30 p.m.
Jeff Walker Chief Strategy Officer, National Office, Canadian Automobile Association
Thank you very much. Good afternoon. My name is Jeff Walker. I'm the chief strategy officer at CAA.
Let me begin by thanking the members of the standing committee for inviting the CAA to join you today to provide our views on Bill C-46. Our focus of discussion is going to be on the drug-impaired driving aspects of Bill C-46.
The CAA was founded in 1913 as a consumer advocacy organization. We have 6.2 million members in Canada today, and since our inception, we've been advocating for critical pieces of the traffic and road safety network that are currently in place today—everything from stop signs, which were put in place in the early 1900s, to seatbelts and airbags. You name it, and we've been involved all the way along, and we continue to be committed to this aspect of safety in Canada. We represent, roughly, one in four adult drivers in Canada, and we're recognized as one of the most trusted brands in the country.
Although drugs and driving has long been a public policy issue in road safety, only recently has this issue become a major concern to Canadians in light of the government's plan to legalize cannabis. In some of our polling across the country, seven in 10 Canadians have told us that they are concerned about their safety on the roads with the coming legalization of marijuana. Public education about the danger of driving under the influence of cannabis is, and will continue to be, a significant area of focus for us and many other stakeholders in the years to come.
The Canadian Centre on Substance Use and Addiction has reported that, in stark contrast to alcohol-impaired driving, the number of drug-impaired incidents has been rising since 2009. As alluded to by Markita, if you look at Washington and Colorado, it's the same pattern. There is no reason to assume this trend will reverse. What we need to do is minimize it.
CAA is pleased to see that with Bill C-46 the government is committed to creating new and stronger laws to deter Canadians from driving while under the influence of drugs.
The introduction of roadside oral fluid screeners and ensuring that drug evaluating officers providing testimony do not need to be qualified through an expert witness hearing are positive steps forward. These new tools will help police to better detect drug-impaired drivers and ensure that they will face the justice system.
The legislation also creates three new offences for having specified levels of drug in the blood and sets these levels for cannabis. Based on the available scientific evidence, we think that these levels are reasonable for now, but we believe that one of the major things that needs to be done is more investment in scientific research around this question. There are major gaps in the science right now.
As with drinking and driving, driving under the influence of cannabis affects not just those individuals who partake but potentially all road users. Alarmingly, while few Canadians would argue that they are better drivers after drinking alcohol, a significant number of Canadian young people actually believe that driving after smoking marijuana makes them safer and more focused drivers. This is real. I've been there. I've watched the focus groups. It's a problem. For this reason, CAA was pleased to see the McLellan task force report confirm that work must be done urgently to address these misconceptions. Several issues have to be tackled immediately: public education, better funding for law enforcement, more research on science and technology to detect impairment, and the impairing effects of cannabis.
Bill C-46 deals with the law on cannabis quite thoroughly, but it leaves unanswered some key questions such as funding for law enforcement, research, and public awareness. The legislation is a positive step, but it's only the first step. Last week, the federal government announced new funding amounting to $161 million to support Bill C-46. That funding is to be used for law enforcement, bolstering research, and raising public awareness. We're very happy that this announcement was made, but I want to flag something. Half of that money is going to be spread over five years, and if you break it out across the 13 jurisdictions in the country, you're talking about $11.5 million for each of them. That's not a ton of money. Maybe that helps with the science, but if we're talking about public education, there's still a way to go.
We know from our experience with alcohol and other driving campaigns that public education plays a significant role in reducing the amount of impaired driving. A major public education effort is going to be required to make Canadians, particularly young Canadians, understand that driving under the influence of cannabis is likely to impair their ability to control their vehicle.
As I alluded to earlier, our recent polling says that 20% of Canadians age 18 to 34 believe they are the same or better behind the wheel after consuming cannabis. This is not the only misconception about the impairing effects of cannabis. We and other non-profit groups in this country have been left to carry the burden of creating and executing public education campaigns on our own. We're going to continue to do our part, but we want help.
Additionally, the government will need to continue to support the law enforcement community to ensure it has the resources necessary to develop the tools, detection devices, and access to training that it will require into the future.
In conclusion, the CAA, without reservation, supports measures that make Canada's roads safer, and we believe that Bill C-46 is a good step in the right direction. However, to combat drug-impaired driving, three key elements—meaningful legislation, public awareness, and effective enforcement and measurement—all need to be taken care of. If we get all three right, we're going to be in a good place. We need to do it, and we need to do it right.
Provinces, law enforcement, and stakeholders will do their part and the tax revenues that people talk about as coming from this may eventually provide the kind of funding that we need, so it becomes a self-funding thing to be able to take care of these things, but in the near term we need a real down payment to be able to get this right from the beginning.
We cannot wait for legislation to begin this important work that we all have in front of us. It's important and needs to come soon. Again, to your point from earlier, we have a lot of people already consuming cannabis and driving today and there's nothing, so getting this done soon is really important.
Thank you very much.