Evidence of meeting #64 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 impaired.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Mario Harel  President, Director, Gatineau Police Service, Canadian Association of Chiefs of Police
Ed Wood  President, DUID Victim Voices
Superintendent Charles Cox  Co-Chair, Traffic Committee, Chief Superintendent, Highway Safety Division, Ontario Provincial Police, Canadian Association of Chiefs of Police
Gord Jones  Superintendent, Traffic Committee, Canadian Association of Chiefs of Police
Sarah Leamon  Associate Barrister and Solicitor, Acumen Law Corporation
Kyla Lee  Associate Barrister and Solicitor, Acumen Law Corporation
Michael Spratt  Member, Partner, Abergel Goldstein and Partners LLP, Criminal Lawyers' Association
Marc Paris  Executive Director, Drug Free Kids Canada
Arthur Lee  Community Liaison, Students Against Drinking and Driving of Alberta

4:45 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Sarah Leamon

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.

4:50 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Kyla Lee

Thank you.

I want to thank the other presenters for their comments, and I certainly echo what they've said about random breath testing. As a Métis I am very concerned about how this is going to affect people from the aboriginal community. We see in B.C. already basically an offence of driving while native, and that's only going to get worse.

We also don't need this law. Statistics Canada has been tracking impaired driving rates since the 1980s, and there has been a consistent decline over the years. The laws we have are working. There is a correction in this issue. It is taking place. Provinces also have adopted administrative measures that are working, or so they say. I take issue with that, but they do say they're working.

Dealing with the administrative laws in British Columbia, which is one of the areas our office handles frequently, I see first-hand every day the way that giving police unfettered power causes abuses of that power. In British Columbia there is no practical ability to challenge the demand for the breath sample under our administrative scheme, so we have de facto mandatory random breath testing in British Columbia already, and all it has led to is a reduction in policing skills and a reduction in respect for charter rights from police that invades other areas of criminal law.

If we pass this law in its current iteration and allow police the ability to conduct random breath tests and to engage with drivers for the purposes of random testing, all we are going to be doing is saying that the charter doesn't matter if we worry about the type of offence. That can't be what we are supposed to have in a legal system in a free and democratic society. Living in a free and democratic society means we have to strike a balance between individual liberties and protection of the public. Sometimes that balance is going to lead to cases where people are put at risk, but that's a risk we take to protect the rights and fundamental freedoms we have as Canadians, and we need to keep that in place.

It's also illogical. There's a significantly concerning aspect about this law to me, and that is that there is a reasonable suspicion for saliva testing for the drug-impaired scheme, but there is no reasonable suspicion standard for alcohol-impaired driving. There's no justification for having one standard for drugs and a different standard for alcohol. Do you have more rights because you use drugs than if you drink? It doesn't make sense.

Not only does this law fail to strike a balance, but from my perspective it will almost inevitably lead to convictions. This law is designed to convict people charged with impaired driving, rather than to let them have the right to a fair trial. My colleague has spoken about the limits on disclosure that will impede an individual's ability to get the evidence necessary to prove their innocence. Mr. Spratt has spoken about the limits this law creates on the ability to challenge the breath test results in the absurdities of the law. This law is designed to convict, and that's not what our legal system is supposed to do. It is supposed to create a process by which a person can have a fair trial.

Because we have an introduction of random breath testing, we're going to see the end of things that the Supreme Court of Canada has tried to put to rest earlier this year. The recent case of Alex, talking about how issues related to the presumptions aren't related to the validity of a breath demand, is just going to go back to the court. We're never going to put other issues to rest, because we're going to have less to challenge as defence counsel and less for accused persons to challenge.

I'm particularly concerned about the elimination of a defence of post-driving consumption. I can tell you that I probably run more impaired driving trials in British Columbia than any other lawyer right now, and I have never in all my time practising run a bolus drinking defence, a post-driving consumption defence. Mr. Spratt is quite right that it does not come up. It is not a frequent thing. We also have laws in place that address this problem when it's used to obstruct an officer's ability to investigate. We have seen police officers in British Columbia convicted of obstruction and sentenced to jail time for engaging in post-driving consumption to skew breath test results.

We don't need this law. We don't need this change. We have a system in place, and it creates a “guilty until proven innocent” mechanism. Again, dealing with the roadside prohibition scheme in British Columbia, I have seen the way that “guilty until proven innocent” works. You have triers of fact who end up distrustful of the evidence of the so-called “guilty party”. It's difficult to have a fair hearing. I can only predict that this pervasive attitude will infect the court system as a whole, and it has the danger of creating an unconscious bias against accused drivers.

These proposed changes will not work. Our justice system depends upon safeguards against wrongful conviction, respect for charter values, and an overall desire to create laws that make sense to address real problems and not imagined ones.

Thank you.

4:55 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

Mr. Cooper.

4:55 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you to the witnesses.

It's good to see you back, Mr. Spratt. I know you've become a thoroughly frequent witness before our committee.

On the issue of random breath testing, let me just say at the outset that I'm quite skeptical about random breath testing.

To play devil's advocate, Ms. Leamon, you mentioned that police already have all the tools they need to combat impaired drivers. You correctly note that the standard of reasonable suspicion is a low one. It's merely the suspicion that someone has alcohol in their system, and not that they're at .08, and not that they're impaired.

On the other hand, we have heard from multiple witnesses, including from the law enforcement community, who have cited statistics indicating that somewhere in the neighbourhood of 50% of the time that someone is impaired and is stopped at a routine check, or in the course of a traffic stop to check insurance and so on, they pass through.

How would you respond to that assertion, when law enforcement officers say they need this because 50% of the time someone who is impaired is going through and nothing further is done?

5 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Sarah Leamon

Thank you, Mr. Cooper.

Certainly that could be a concern. However, in my practice, I don't see it.

Police officers have the training, and if they don't have the training and they feel they can't detect impaired drivers with the resources, the tools, and the skills they already have, then we have a problem.

Police officers are able to stop a vehicle for almost any reason in this country, and they're able to engage with the motorist. They can make observations of that motorist about how they look and how they're acting. They can even go so far as to have the motorist blow in their face, or blow into their hands and put breath into their face. That has been ruled by the B.C. Court of Appeal to be a valid measure to be deployed by police officers.

Once they detect an odour of liquor on the breath, no matter what that order is—faint, moderate, strong, stale, or fresh—that, according to the Alberta courts, is enough to make that ASD demand at the roadside. Couple this with the fact that police officers can also ask questions of drivers. They can ask them whether they have been drinking and when their last drink was.

More often than not, drivers are forthcoming. I certainly see that when it comes to my clients. They're more than willing to start talking to a police officer and explain to them, “Oh, but I only had a drink two hours ago.” Well, guess what. Now the officer has a reasonable suspicion and they are able to issue that ASD demand.

5 p.m.

Member, Partner, Abergel Goldstein and Partners LLP, Criminal Lawyers' Association

Michael Spratt

If I could add to that, if the argument is that there are so many drivers who are very intoxicated, but such seasoned drinkers perhaps that they can escape even this very low standard, the problem is that randomly stopping people isn't going to catch those drivers. You're fishing in a very big pond, and you're not going to catch those drivers without stopping everyone.

Proponents say, “Well, it can be used at a RIDE checkpoint.” There are a few issues with that. That doesn't cure the constitutional infirmity that's there, because we know, and the courts have told us, that police discretion or crown discretion doesn't cure something that's unconstitutional.

If we just employ these random testings at checkpoints, I think there might be a different section 1 analysis going on under that sort of regime. With the amount of extra time it takes to do these tests, even if it's 30 seconds or a minute per driver, it could lead to detentions at these RIDE checkpoints that might not be saved under section 1.

There are some problems with overbreadth, underbreadth, the reliance on discretion. Ultimately, you're giving police a power that we know from past experience will operate disproportionately and probably unconstitutionally.

5 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Picking up on that, Mr. Spratt, at the end of your testimony, you expressed the opinion that random breath testing would not be saved under section 1. As you pointed out, we heard from Professor Hogg, who made the argument before the committee that it was his opinion that it would survive.

Could you perhaps elaborate on the basis upon which you've concluded that it's unlikely to be saved under section 1?

5 p.m.

Member, Partner, Abergel Goldstein and Partners LLP, Criminal Lawyers' Association

Michael Spratt

I think if you look at the rosiest, most positive example you can, Professor Hogg might be right. If we're talking about a very brief interaction with somebody on the roadside that happens infrequently, I think there's an argument that it could be saved under section 1. Arguing from that very rosy example is to argue from a place of privilege that a lot of people in our society don't experience.

I think that the section 1 analysis fails when you actually look at what the reality is going to be. We're fooling ourselves if we say that this is going to be different from carding or from the Ottawa police and their traffic stops.

When you look at how it's actually going to play out, it's not going to be a brief stop to reach in and give a roadside in a car. Again, it's going to be removing someone from the car, searching them, shining a flashlight in the car, not letting them have any access to counsel. It's perhaps having them sit in the back of a police car, running their name and information through the system, perhaps asking other questions that can be used against them later on. That's sort of the intrusion that we're looking at.

When there's evidence, as there will be—there's going to be evidence that that intrusion happens more often, all the time, disproportionately to vulnerable and visible minority members of our communities—I think it will change the analysis quite a bit from a sterile, best-case scenario, academic analysis.

5:05 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Kyla Lee

I'd like to pick up on what Mr. Spratt is saying. There's also the comment he made about the right to counsel.

We just went through this in the Supreme Court of Canada in 2005 because of the refusal to comply offence. The Supreme Court of Canada in R. v. Orbanski and R. v. Elias went through the analysis again and the section 1 analysis about roadside testing. They found that even though there is the limitation on the right to counsel, and even though there is a refusal offence, it's still saved by section 1 because of those three requirements: reasonable suspicion, forthwith, and use immunity.

In B.C., and now recently in Ontario, we see the elimination of use immunity through administrative schemes. If we're taking away those other steps, keeping refusal as an offence and not allowing people the opportunity to consult with counsel first.... I can't see how it's going to pass that when you factor in that there is still a refusal offence.

5:05 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

Mr. Ehsassi.

5:05 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Thank you ever so much to the witnesses for being here. It's a great pleasure to have you. We've heard compelling testimony over the course of the past three days, and yours is obviously very helpful, as well.

I have to say that I was somewhat perplexed. I had the benefit of reading your brief. The first sentence of the brief from Acumen Law Corporation reads, “Bill C-46 purports to solve a problem that does not need a solution.”

Do you think we have a problem, or do you think we don't have a problem whatsoever?

5:05 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Kyla Lee

I don't mean to say that we don't have a problem with impaired driving. It's that we don't have a problem that needs a solution because we already have a solution that is working. If you look at the Statistics Canada numbers, the rates of impaired driving, and the way that the provinces are also collaborating to address the issue, you will see that it's a problem that doesn't need a solution. There's already a legislative scheme in place that works.

People are convicted of impaired driving all the time. People are acquitted all the time. That's just evidence that what we have is a working system.

5:05 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Just so I understand.... So, we do have a problem?

5:05 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Kyla Lee

There's always going to be a problem with impaired driving. If you create a different legislative scheme, it's not going to stop impaired driving.

Statistics and studies into decreasing rates of impaired driving have found that really the only mechanisms that consistently work are consistent, visible enforcement of whatever law is in place, and education of the public about the law and the fact that if you violate it you will get caught. It's that perception that has the most significant effect. It doesn't matter what the law is.

Changing the law is not going to solve impaired driving. Changing the law is not going to, in my view, make a difference. All it's going to do is create a different, unnecessary solution.

5:05 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

In summary, you're saying it's unnecessary and unconstitutional.

With regard to it being unnecessary or to trying to identify if we have a problem or not, we've heard testimony from Professor Solomon that we're talking about approximately 1,000 deaths every year. We're talking about almost 60,000 Canadians being injured. We heard heart-wrenching testimony from mothers of young victims. They have explained to us that the victims, the almost 60,000 victims, are disproportionately young Canadians.

To me, that seems like we do have a problem. Does that not indicate to you that we have a problem?

5:05 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Kyla Lee

I don't see this law as changing that. Yes, there are people who are being injured and people whose lives are being lost, and that's incredibly tragic, but we can't put that ahead of the charter. I know that's a difficult thing to think about, and I know that's a controversial statement to make, but we have to balance everything. We can't forget we have a charter just because there are tragic stories. We saw that in British Columbia in its first iteration of the immediate roadside prohibition scheme, which was enacted in response to a very tragic death of a two-year-old girl. We saw that law being found unconstitutional because it violated the charter. We need to remember that, even though there are tragic situations taking place every day on our roads, the charter still exists, and whatever we do has to be charter compliant.

5:05 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

I completely agree with you. We can all agree that the charter exists. But insofar as charter analysis is concerned, we also heard from the pre-eminent scholar, Professor Hogg. Leaving aside the Oakes test and section 1, he said it doesn't offend section 8, or even section 9.

5:10 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Kyla Lee

I don't see how he can come to a conclusion that it doesn't offend section 8 and it doesn't offend section 9 when our Supreme Court of Canada has already ruled that the measures now in place offend section 8 of the charter, that the measures now in place offend section 10(b) of the charter. The proposed bill is stripping away more protections.

5:10 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Okay, so you disagree, but I didn't see any case law in your brief. There was case law in Professor Hogg's brief, so it's easy to try to follow up.

5:10 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Kyla Lee

Our brief cited Orbanski and Elias. It cited Thomsen. It cited a number of Supreme Court of Canada decisions finding that approved screening device testing violates.

5:10 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Okay, you're saying that the police actually have sweeping powers, that they can essentially do what they wish, but we also heard testimony that about 40% of impaired drivers get away with not being detected at all. We heard this from Dr. Brubacher, from a hospital in British Columbia. What would your answer to that be?

September 20th, 2017 / 5:10 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Kyla Lee

I'm very curious to know how they determined that number, if they're getting away without being detected.

5:10 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

They had done extensive statistical analysis.

5:10 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Kyla Lee

Right, but statistics can be easily manipulated to say what you want them say. The fact is that if we have a legal system in place that appropriately balances charter rights and that appropriately deals with the issue of impaired driving while maintaining charter rights, some people are going to escape detection. It's just a fact that we're going to have to live with. I come here with this unpopular opinion, and I know it's unpopular, but it's one of the realities of living in this country: we get to have a charter, which means we sometimes have to have sacrifices to public safety and other things. These sacrifices, though, are all in support of protecting this free and democratic society in which we live.

5:10 p.m.

Member, Partner, Abergel Goldstein and Partners LLP, Criminal Lawyers' Association

Michael Spratt

Can I add something?