Justice Committee on Sept. 18th, 2017

[Kathryn Pentz]

Professor Solomon speaks of people stopping and complying with the demand instantly. Knowing the clientele that I deal with, I seriously doubt that this will be the case. I can envision that the testing will take a longer period of time. We will then have more refusals, because people will not be willing to submit to that. Then we will have those refusals going through the system.

We'll also have issues with respect to the demands, that if following these demands there is a Breathalyzer demand, then those cases will again come through the system. We are very concerned that the entire bill, and that section in particular, will lead to increased litigation.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Fair enough.

I don't want to use up all the time. I'll give it to my colleague.

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

Thank you.

Thank you to the witnesses.

Certainly on the question of mandatory breath testing, I approach this with an open mind but a considerable degree of scepticism. We are talking about a very significant change in the law. We're talking about something that will have a significant impact in terms of a serious infringement on individual liberty. When we talk about reasonable suspicion, we're talking about what is, at the end of the day, a very low standard.

Mr. De Luca, you made the comment that the question that should be asked is whether mandatory breath-testing would be an improvement from the current selective breath-testing system. I agree that it's an important question to ask and that it needs to be answered. But I would submit that there's a further question that needs to be asked, even if that first question were answered in the affirmative that indeed mandatory breath-testing would have some positive effect. That's to be balanced against how many individuals who are innocent will have their rights interfered with in order to be able to identify what, at the end of the day, is a relatively small number of individuals who get behind the wheel impaired and cause deaths and injuries. I mean, that group, that demographic, tends to be made up of repeat offenders and hard-core drunk drivers. It seems to me that mandatory breath testing may not be the right approach in order to be able to get at those people.

I'd be interested in your comments.

[Roberto De Luca]

I would first like to emphasize that I agree; I don't think the question of whether or not mandatory alcohol screening or random breath testing is effective settles the question. I mean, it's our opinion that this would ultimately go to a section 1 analysis once the inevitable charter challenge arises if this provision is enforced, and what we know of the effectiveness will go to that inquiry.

But that does not settle the matter. We have a number of concerns that even if it's proven to be effective, it still would fail on the minimal impairments and the proportionality grounds of the section 1 test. For instance, one of the problems we have with the provision, as was mentioned earlier, is that it will very likely sweep up a number of innocent individuals who will be faced with a mandatory breath demand and will not realize that if the demand is instant, they don't have a right to counsel. A number of innocent individuals will very likely assert their rights and be caught up with a mandatory minimum fine of $2,000.

I mentioned in my earlier comments the concern around the increased intrusiveness of a breath demand. One, it's an increasingly intrusive behaviour. It is a bodily sample, and courts have found this to engage section 8. As well, this will have a disproportionate effect on certain individuals and communities.

So I don't think the effectiveness piece settles it, but I do think the lack of evidence is nevertheless problematic.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you to our witnesses for being here and providing your presentations.

Mr. Solomon, if I could start with you, I would like to hear your thoughts on the difference between a checkpoint stop and any routine traffic stop in the use of mandatory alcohol screening. As I understand it, in Ireland the system uses the mandatory alcohol screening for just the checkpoint stops, and I see quite a difference between the two.

I would like to hear your thoughts on how you can then just extrapolate the Ireland experience if we're going to any routine traffic stop.

[Prof. Robert Solomon]

It's my understanding that they use mobile alcohol screening as well, so it's not just at stationary positions that they can demand a breath sample.

All of the leading researchers have concluded that the ability to conduct alcohol screening when drivers are stopped outside of sobriety checkpoints is critically important for several reasons, the first of which is that it reinforces the message that if you drink, don't drive. If you do not have the mobile ability to screen drivers who are stopped, the difficulty is that people will try to evade the system.

The other problem, which many people don't realize, is that the rural population represents 30% of the population but 69% of the incidents of impaired driving causing death. If we don't enact mobile screening, it will increase the overrepresentation of rural road users in impaired driving crashes, deaths, and injuries.

The way mobile screening works in generally almost all countries is that every time a driver is stopped, for whatever reason, they're asked for a breath sample. All stopped drivers are asked for a breath sample. There is no individualizing. If you're stopped, it isn't discretionary to provide a breath sample. The studies clearly indicate that adding mobile significantly increases the deterrent impact of the impaired driving law.

The other point I want to make is we have selective breath testing now, and we have 1,000 dead people and 60,000 injuries. If we continue doing exactly what we're doing, we're going to continue to have one of the world's worst records in terms of impaired driving death or injury. We have to do something. Virtually every reputable traffic safety organization recognizes that mandatory alcohol screening is the single most effective way of reducing impaired driving deaths or injuries.

The other point I want to make is that there are four jurisdictions that did exactly what we would do. Those are Western Australia, Queensland, Ireland, and New Zealand. Going from fairly moderate selective breath-testing stops to mandatory alcohol-screening stops, in each and every case there were significant decreases.

One of the two leading traffic safety experts in this area concluded that in every case, mandatory alcohol screening proved to be superior in its effectiveness to achieving accident reductions by approximately 50% over what was achieved through selective breath testing. The leading scholar in the field, Ross Homel, says, “Nothing in the Australian experience encourages the belief that, without [full use of mandatory testing], roadblocks or sobriety checkpoints are capable of delivering” substantial or sustained reductions “in alcohol-related crash deaths.”

If we do not enact mandatory alcohol screening, next year we'll have another 1,000 impaired driving deaths and another 60,000 injuries.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Solomon. I appreciate your comments.

What I'm trying to understand, though, in addition to that, is that you say this will take away the subjectivity of the police officer by making it a mandatory alcohol screening system, but it will be used for any routine traffic stop the police officer will make. I want to understand this. If there could be a sense that some people are stopped for reasons that are not legitimate, will they not then be more likely to be subject to the mandatory alcohol screening?

I would like to hear your thoughts on that.

[Prof. Robert Solomon]

The legislation says you can't ask for a breath sample unless you are lawfully stopped, so if the stop is not lawful, then the demand will also be not lawful.

Again, this is best practice in terms of mandatory alcohol screening. Best practice in numerous dozens of countries around the world works most effectively if every driver passing the checkpoint is waved in and every driver stopped at a checkpoint is tested. Similarly, in terms of mobile mandatory alcohol screening, every time a driver is stopped, they are asked for a breath sample. If the stop is illegal, there is no right to make the demand, under the proposed legislation.

[Colin Fraser, Liberal, West Nova, NS]

Do I have more time?

[The Chair, Liberal, Anthony Housefather]

You have 40 seconds.

[Colin Fraser, Liberal, West Nova, NS]

To the Canadian Bar Association representatives, I want to turn to something that I hadn't heard mentioned yet, or at least I don't think it was, regarding the changes to the use of the interlock device and the fact that it's an option now that the court can allow the interlock device immediately upon sentencing.

Do you see any merit in that reducing the resolutions that may occur regarding a person entering a guilty plea because they are able to get on right away with being able to drive for work and that sort of purpose? I know the counter-argument can be made, of course, that obviously we want to make sure there aren't false guilty pleas, but I would like to hear your thoughts on whether you think that might remedy some of the court backlog that you're....

[Kathryn Pentz]

We haven't specifically addressed that in our submission, so the CBA does not have a position on it, but I can speak to that from my own personal perspective.

The difficulty with the interlock program is that while it is certainly a great program, it is also an expensive program, so a lot of people can't avail themselves of that. As well, as you mentioned, we would not want to in any way encourage people to enter a plea if they are not in fact guilty, if they do have a viable defence that should be brought before the court. We don't think that that really addresses the concerns we have.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I want to thank everyone for coming.

In particular, I want to acknowledge Professor Solomon. Your decades of research in this area and the contribution you've made is enormous. Thank you.

In your material, at page 3 of your brief, you talk about the concerns the Civil Liberties Association and the Criminal Lawyers' Association have about police discrimination and the targeting of visible minorities. You say their concerns are exactly the opposite to what is true. Yet you speak, I think, about sobriety checkpoints and you say the enactment of MAS would reduce the ability of the police to target minorities or otherwise misuse their authority, and you went on to say, because best practices require that all passing vehicles are stopped, and so on.

I don't understand that. I understand, as my friend Mr. Fraser said, that there's a difference between sobriety checkpoints on the one hand, where everybody is stopped, and the ability that this now gives the police to target minorities if they wish on a random basis. It's random Breathalyzer testing, random alcohol testing. I'm having a great difficulty understanding how you can discard the concerns that the Civil Liberties Association and the defence lawyers have provided.

[Prof. Robert Solomon]

I would find it quite surprising if the police implemented mandatory alcohol screening in a manner inconsistent with what every other country does, or what the vast majority of other countries do. That is, every driver passing along, unless there is a lineup, is waved in, and that's not dissimilar to what happens now. Now in a sobriety checkpoint, when you're pulled in currently, it's up to the officers to use their own subjective judgment in terms of whether to assess your potential sobriety and to decide whether or not there are reasonable grounds to suspect you have alcohol or drugs in your body. That's the individual, subjective judgment of the officer. Under mandatory alcohol screening, the officer has no individual discretion. Best practice is you're pulled in, and if you're stopped, you're asked for a breath sample.

[Murray Rankin, NDP, Victoria, BC]

That's best practices. It may not be the whim that the minority in Ladouceur talked about. The minority in the Supreme Court of Canada were concerned about the possibility of random discretion exercised by police officers according to their whim. Why isn't that equally applicable here?

[Prof. Robert Solomon]

I guess we can always say, just as when I pass through security at the Ottawa airport or when I pass through security here, that an officer could somehow choose to be more aggressive or misuse their power. But that's not the way the system works. Mandatory alcohol screening limits the officers' subjective use of their judgment.

[Murray Rankin, NDP, Victoria, BC]

In the interests of time—I know I have a limited amount, and thank you for that answer—I want to turn to Ms. Pentz from the Canadian Bar Association, and at the same time to Mr. De Luca and ask a very simple question.

You both have made the statement that this legislation is suspect according to sections 8 and 9, and it won't be saved by section 1 of the charter, to which I say, all right, let the courts decide. Sure there's going to be uncertainty, as you point out, with interpretation and the constitutionality. What if the Minister of Justice did a reference case to the Supreme Court of Canada? Put it all out there and let them decide. Wouldn't that be the way to avoid the kinds of concerns that you've expressed? Let the courts say right away what the answer is.

[Kathryn Pentz]

Again, from the CBA perspective, we haven't really taken a position on that aspect of it. Again, going back to my comment, it's not only the constitutionality of it. We have to also look at the implementation and what we're going to get out of it.

I have a short paper here from 2014 from the Canadian Centre on Substance Abuse. If we want the same results as Australia, it says we'll have to do the same types of stops as Australia. It says, “In Australia, at least one-third of all licensed drivers are breath tested in a year.... In Ontario alone, testing one-third of licensed drivers would involve conducting in excess of three million breath tests a year, the equivalent of over 8,200 tests per day.”How are we going to implement that?

[Murray Rankin, NDP, Victoria, BC]

Your testimony was that all of part 2 should be deleted, all the impaired driving changes, because there would be lots of litigation.

[Kathryn Pentz]

Yes.

[Murray Rankin, NDP, Victoria, BC]

It's the most litigated provision. Of course, you're right. I still don't understand why the CBA wouldn't say to send it to the courts on a reference and we'll get to the bottom of it right now.

[Kathryn Pentz]

This isn't the only part that we feel is objectionable. There are other sections that we feel—

[Murray Rankin, NDP, Victoria, BC]

Mr. De Luca.