My colleague Ms. Lee and I would like to thank the committee for providing us with the opportunity to appear before you today.
Ms. Lee and I are both criminal defence lawyers. We practise primarily in British Columbia and also deal primarily in impaired driving law.
The amendments embodied in Bill C-46 are both unconstitutional and unnecessary. They are contrary to the fundamental charter rights and freedoms that are afforded to citizens. The most significantly offending amendments are the sections that deal with mandatory alcohol screening, the prohibition on disclosure and on arguing post-driving consumption, and the increases in punishment.
To begin, limitation on disclosure is extremely problematic. Impaired driving is a highly scientific area of the law. It operates on the presumption that instruments and procedures are accurate; however, that is not always the case.
An accused person has the right to know the entirety of the case against them, and that includes whether or not instruments that were used in the course of the investigation were faulty. They require access to maintenance records in order to determine that. The court has already ruled that these documents are necessary and should be provided to an accused person. This amendment seeks to eliminate this.
The rationale for doing so appears to be in line with attempts to combat the perception of delay in the criminal justice system. The irony here is that this is more likely to contribute to delay. Defence counsels like me will be required to make time-consuming applications in order to access these documents. Crown counsel will have to speak to those, and court time will be allotted to do so.
Instead of limiting disclosure, I would suggest that we adopt measures similar to those seen in some U.S. states, such as Washington, and publish historical Breathalyzer records online. That will allow for free and easy access for the public and will also help to curb delay.
Similarly, the increases in penalties that are contemplated by this bill are likely to exacerbate delays. Increasing punishment while simultaneously introducing a plethora of new, aggravating, and quite frankly unnecessary factors will have the effect, in my view, of deterring accused persons who may otherwise do so from entering early guilty pleas. That will be out of fear of elevated punishment in a more rigid sentencing environment.
Our current penalties are sufficient in order to deter and denounce impaired driving. Moreover, sentencing is best left in the hands of a presiding judge. Open sentences strike an appropriate and meaningful balance between the interests of the community and the individual circumstances of an offender.
Perhaps the most troubling aspects of this bill, however, are the provisions that provide for arbitrary and mandatory breath testing. The justice minister has described this scheme as “minimally intrusive” and has said that providing a breath sample is the same as providing a driver's licence or other documents to police.
With respect, this is not the same thing. The production of a breath sample is physically invasive, it is conscriptive evidence, and it's compelled from a person by law for the purposes of self-incrimination. It is a significant infringement on individual liberties.
We have to remember international comparative examples. Australia, for instance, does have a mandatory breath-testing scheme and does not have a charter equivalent. In that country, there is no bill of rights like the one we have here in Canada to protect citizens.
Moreover, there are legitimate concerns about how this law will be applied, and they cannot be overlooked. There is a real risk that implicit racism will cause visual racial minorities to be disproportionately subject to detention by police for the purposes of these so-called random breath tests.
Quite simply, police officers do not need these measures in order to combat impaired driving. They are already armed with the tools necessary to identify impaired drivers and to remove them from the road in a prompt manner. They require only reasonable suspicion, which is an exceedingly low standard, and of course that's just a suspicion of alcohol in the body, not even that a driver is impaired. As long as they have that suspicion, they are able to compel a roadside breath sample.
It seems that a majority of Canadians also agree that random breath-testing is not necessary. A recent poll I reviewed, conducted by The Globe and Mail and Nanos Research, found that only 44% of Canadians support these provisions.
Constitutional compliance is about striking appropriate balance between individual rights and the interests of society. There is absolutely no doubt that if this legislation is passed as is, it will be vigorously challenged. It is going to cost taxpayers millions of dollars.
The role of our government is to pass good, responsible, socially responsible, and constitutionally sound law.
In my view this bill, as it stands today, is not measuring up.
I will now pass the floor to my colleague, Ms. Lee.
