Justice Committee on Sept. 18th, 2017

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Walker.

Now we will move to questions, starting with Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I want to thank the witnesses.

Ms. Kaulius, certainly you have my condolences on your tragic loss. All members of the committee certainly feel for you and your pain. Unfortunately, there are far too many mothers and fathers, brothers and sisters, friends and neighbours who have loved ones who have needlessly died or been seriously injured at the hands of an impaired driver. It is why to some degree in this big bill, a complex bill, there are some good aspects, although there are some areas that I have some concern with. I will make one observation, which is that I do believe that when you compare Bill C-73 and Bill C-226 and this legislation, there really is a considerable watering down, in terms of penalties particularly, with respect to mandatory minimums.

While we talk about sentencing and sentencing principles, two very important sentencing principles involve denunciation and protection. Certainly, that is relevant when we're talking, as you say, about a very small number of individuals who are hard-core impaired drivers.

I was wondering if you might want to speak to that. Then I will have a question for Professor Hogg.

[Markita Kaulius]

Definitely, the penalties in this new bill are quite a bit lower. There are no mandatory minimums. I've been at this now for six and a half years, almost seven years, and I'm still trying to get something that everybody says should be a no-brainer. This is public safety that people are talking about and Canadians are asking for, and they're wondering why our government does not take this as seriously as it should. They keep asking why our penalties are so low in Canada.

Maybe somebody can address that for me, because impaired driving deaths are the number one criminal cause of death in Canada. It is tying up our courts, but the penalties are so low.

Most people realize.... I mean, it's common knowledge. I work in an RCMP detachment. I hear police officers saying that the criminals come in and they go. It's common knowledge. You can do the crime, because you're not going to serve any time. People are dying here, and these drivers are getting a $100 fine, seven weekends in jail. What does that tell the rest of the public? That tells them they can drink and they can drive, or they can do drugs and they can drive, and the penalties are next to nothing. That has to change, ladies and gentlemen. That has to change.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I have one question for Professor Hogg, and then I will give the balance of my time for Mr. Nicholson.

Professor Hogg, on the recommendation of Families for Justice with respect to implementing a mandatory minimum sentence of five years for anyone convicted of impaired driving causing death, I was wondering if you might be able to comment, offer your opinion on the likelihood that such a mandatory minimum would be upheld in light of recent Supreme Court pronouncements.

[Peter Hogg]

Yes, that is a difficult question, as it turns out, because a lot of mandatory minimum sentences have been struck down on the theory that if they have disproportion.... I do not agree with this reasoning, but what the court has said is that if they were disproportionate for some offenders, then they're cruel and unusual punishment, forgetting the notion that there are a lot of problems with judicial discretion as well. In my mind, there's a lot to be said for mandatory minimum sentences for offences which Parliament has described as extremely important.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Not to put words in your mouth, but if I were to summarize what you're saying, would it be fair to say that it would be arguable, at least?

[Peter Hogg]

Oh absolutely, yes.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

Also, thank you very much, Mr. Walker and Ms. Kaulius. You made a very good point about what's going to happen with respect to impaired driving in this country. With the legalization of marijuana and the combination of that in and of itself with alcohol, we're going to see more impaired driving in Canada. I don't think there can be any argument at all on that. Thank you very much for making that point.

Professor Hogg, you heard from Ms. Kaulius about the lack of serious sentences in many cases and the disparity in this area. Do you have any insight into that and what's happening with our court system?

[Peter Hogg]

No, I don't. I was a little surprised at some of the things Ms. Kaulius said about the very light sentences that are being imposed.

I do think, though, as I've said to Mr. Cooper, that there is a great deal to be said for some mandatory minimum sentences where Parliament is satisfied that the offence is a very, very serious one and should not be left purely to the discretion of judges. I'm quite sympathetic with that notion.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I appreciate that. Thank you for your insight on this.

I think we're probably out of time, Ms. Kaulius, but thank you very much for all your efforts, and thank you, Mr. Walker, for your insight here.

Ms. Kaulius, I know that you have worked on this for years. You have done everything possible to bring this to our attention and to have us do something about this. I don't know if we'll get the chance to see it, but I know you brought a canvas here today....

[Markita Kaulius]

I did. I would like to show it, if I may.

[Rob Nicholson, Conservative, Niagara Falls, ON]

We would be glad to see it.

[Markita Kaulius]

I would like you to take a look at this canvas, please. These are pictures of the families that Families for Justice has been working with. I started with 12 pictures in the first year and added 15 in the second. I added 20 last year, and I added 20 this year. In the six years that we've been waiting, we could have made 60 of these banners. There are 100 faces here.

Please don't let any more people die because of impaired driving. Sheri and I have both lost our children. We're not here because we have anything to gain from this. We're just trying to protect all of you from losing your children and loved ones.

Thank you.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Boissonnault.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

I want to thank all of the presenters today, all the witnesses in this section and before this one, for bringing their testimony to us.

I'm a past volunteer firefighter in the small town of Morinville, which is north of St. Albert, which is to the north of Edmonton. I have responded to motor vehicle accidents. I know what it's like to see people who've been thrown from their vehicles. I can only imagine the pain and suffering that you, the people on the canvas, and the thousands of others who have lost people to impaired driving go through. I lost my sister to a reason that medical science still has no ideas on. She was 20. So to have this done by somebody who ought to have known better, I can only imagine.... I can imagine the suffering. Thank you for sticking up for Canadians and for keeping the rest of us safe.

Mr. Walker, I'm one of those one in four Canadians who is a CAA member. Thank you for keeping us safe on the roads and for boosting my car when the battery doesn't work.

[Jeff Walker]

We're here for you.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Professor Hogg, I'm a person who didn't get to enjoy the trials and the vicissitudes of law school. I'm a member of Parliament who is not from the legal profession. I think it's important for Canadians to understand from a layman's perspective why section 1 matters. Why do we accept in the Constitution limits on our freedoms when there is a particularly strong reason for that to be the case?

As it pertains to the mandatory breath testing, my question for you, which you ably answered in the document that we didn't see beforehand, is why you think that in this case section 1 would pass constitutionality. Could you share with us, so that it's on the record, why you think the random breath test or the mandatory breath test would pass section 1?

[Peter Hogg]

I'm very pleased to do that. I thought at the beginning that I had made an error of judgment in not talking about that, because it is in the paper and it is very important.

Section 1 is the provision that says that the charter guarantees the rights and freedoms set out subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. That is designed to cover the situation where a right may have unexpected consequences and where Parliament may quite legitimately decide to limit the right. The cases under section 1 require four steps to be taken.

First of all, a law under section 1 must have a sufficiently important objective to justify limiting a right. Second, it must have a rational connection to the objective. The third point is that there must be a proportionality between the deleterious and salutary effects of the law so that the price of the infringement of the right is not too high a price to pay.

A lot of laws have been accepted under those provisions, so that when one worries about something being an unlawful detention or the right to counsel being a serious problem, section 1 provides some comfort for a sort of common-sense solution to those kinds of concerns.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

And it's in your estimation that, as written in Bill C-46, the mandatory testing would pass constitutionally under section 1 because we're trying to stop the 1,000 deaths a year that Ms. Kaulius was talking about, and we're trying to prevent the 60,000 injuries a year, and that's better done front-loaded than through the court system later, when the injuries and the deaths have already happened.

[Peter Hogg]

That's exactly right, yes.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Boissonnault.

We're going to Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I too would like to start by saying to Ms. Kaulius how much I appreciate her bringing Kassandra's situation to us, as well as that of all of the other people that we saw on the canvas, one of whom was RCMP Constable Sarah Beckett from my community, who died tragically in exactly this kind of situation. I thank you for putting the 1,000 deaths with their real human faces for the benefit of our committee.

I'd like to start by asking a question of Professor Hogg that I asked of the Canadian Bar Association. They suggested when they came that the entire part 2 should be deleted. They said they thought the impaired driving provisions would not pass constitutional muster. You, of course, have given us testimony to the opposite, but you would acknowledge that there is considerable debate about this, particularly in regard to section 9, section 8, and the like.

The question I'd like to ask you at the outset is the question I asked of the CBA and the Canadian Civil Liberties Association. Would it not make sense in your experience for us to ask the Minister of Justice to send this to the Supreme Court by way of a reference so that we have the benefit of the Supreme Court's decision right now before we start spending a lot of money and time in addressing constitutionality?

[Peter Hogg]

Mr. Rankin, I don't regard that as an easy question to answer. I can see the point. One of the problems with directing a reference before there has been any real experience with the law is that it comes to the court as a rather abstract question. It might be better—and I'm not dismissing the idea of a reference at all—to wait and see, gain some experience with the law, some experience that might lead to changes in the law. The concern is that you go to a court, which is not going to be very well informed about the problem to start with, and you don't have very much experience to bring to it.