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

5:10 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Yes.

5:10 p.m.

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

Michael Spratt

With respect to seasoned drinkers who aren't detectable on the roads, stopping cars at random isn't going to assist in detecting them. Reversing the onus and creating this new impaired after driving provision isn't going to detect those individuals. Removing the three-hour time limit and having an automatic read-up of impaired rates by math isn't going to help detect or catch or prosecute those individuals. What those things certainly will do, however, is attract charter challenges and bog down the courts, and ultimately, there's a good chance especially when we're looking at convicting people who may not have had any alcohol in their system while they were driving it will result in wrongful convictions and charter litigation. That's what it will do.

5:10 p.m.

Liberal

The Chair Liberal Anthony Housefather

I'm afraid, Mr. Ehsassi, you're well over six minutes now.

Mr. Rankin.

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

NDP

Murray Rankin NDP Victoria, BC

Thank you, all of you. Who knew that constitutional law could be such exciting testimony and very lucid as well?

I want to jump in where my colleague left off. I was there on Monday when Professor Hogg testified. He did a report, a legal opinion, several years ago, but it was about checkpoints, where everybody is treated the same. I said to him that here we have random breath tests, where we can arbitrarily, at whim, choose people whom we want to go after. I asked him, if the evidence were like the evidence in Toronto where 8.3% of the population is black yet 25% of the cards police wrote in a three-year period were against blacks, or if the evidence in the context of Ottawa's data race collection program were as you say it was, if that would change his section 1 analysis. His answer was yes, it might. He also concluded that in his judgment, to be fair, that section 8, which is on unreasonable search and seizure, didn't need to go to section 1. He didn't think there would be a problem; he thought the courts would be sympathetic. But he did say the section 9 and 10(b) analysis would go to section 1. If this evidence, the kind that you've described in Ottawa and I've indicated in Toronto were present, he suggested the courts might conclude there would be a constitutional problem.

I needed to put that on the table. That's what he said, in my memory, anyway.

I want to ask you how you would feel and what your legal advice would be vis-à-vis everybody getting stopped at a checkpoint as opposed to randomized breath tests. Would that be satisfactory to you, or would you treat it exactly the same way?

5:10 p.m.

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

Michael Spratt

It certainly would be preferable. That's the ideal solution: treating everyone the same. Then there can be no argument that police are using it as a ruse to pull people over or further other investigations. It would take that distasteful notion right out of things. But we would need to see how it plays out on the ground, because one of the reasons that RIDE checkpoints passed the constitutional test is because of the invasiveness and the brevity and things like that.

The same is true when you're looking at screening devices for drugs. We don't really know how long a saliva test is going to take, or we don't really know exactly the mechanics of it. If everyone is stopped at a RIDE checkpoint on a busy New Year's Eve, and it extends the detention of everyone at that checkpoint by 30 minutes or an hour and now it's not just a brief stop at a checkpoint but a longer stop at a checkpoint, then that might change the constitutional analysis even under that scenario.

5:15 p.m.

NDP

Murray Rankin NDP Victoria, BC

Go ahead, Ms. Leamon.

5:15 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Sarah Leamon

Thank you, Mr. Rankin.

One of the other issues as well, though, has to do with section 10(b), of course, as you rightly pointed out. When those rights are suspended at the roadside, a motorist doesn't have access to counsel, which is normally afforded to people who are, of course, embroiled in a police investigation and they have the right to that. They have the right to that forthwith.

If officers are collecting breath samples on the roadside without providing section 10(b) rights, I'm very uncomfortable with those samples being used as evidence later on. These are evidentiary samples at this point. For that reason, people should be provided with their section 10(b) rights at the roadside and able to contact counsel prior to deciding what they're going to do. Again, as my colleague Ms. Lee pointed out, if we keep the offence of refusal on the books, so to say, but there's still no access to counsel at the roadside, we're caught in a very difficult catch-22. It does, in my view, raise some very serious constitutional questions.

5:15 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Kyla Lee

I think another issue, too, is that we'd have to look at the location where these random checks are being set up. If you're setting them up in communities that are primarily populated by minorities, if you're setting them up at the exit to the reserve every week, that's going to be a problem. You're just moving the problem by putting it in a particular location; you're still doing the same thing.

5:15 p.m.

NDP

Murray Rankin NDP Victoria, BC

Thank you, that's helpful. That would be evidence that a court would have under section 1, and that might well, as Professor Hogg said, tilt the balance in favour of a finding of unconstitutionality.

I want to talk to you, Ms. Leamon, about your interesting suggestion from the United States that the maintenance records for the various devices be put online, so that everyone would have the opportunity to see them. I thought that was a very helpful suggestion because it would provide, as I understand it, greater transparency and would not, presumably, violate the Stinchcombe principles that you were talking about. Is that correct?

5:15 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Sarah Leamon

Yes. We have seen that being employed in Washington state and, to my understanding, employed very well, to the benefit of really all parties to a criminal proceeding and to the public. We want to make sure our police officers are doing things correctly. We really do. I feel my role, often, as a criminal defence lawyer is to make sure that police officers are conducting themselves properly according to the charter, providing motorists and other people with those charter rights, but also that they're maintaining equipment, such as breath testing equipment, in a proper way. That transparency really helps. I think it helps assure the public, and there's no reason why we can't use the benefit of the Internet to do this.

5:15 p.m.

NDP

Murray Rankin NDP Victoria, BC

I was taken by your point that the government obviously wants this to go through because of the delays that have allegedly been taking place. I thought you made an excellent point when you said defence counsel is just going to make applications despite that and it's going to take more time and cost more money, so why wouldn't we just put it online and make it available? It seems to me that needs an answer from the Department of Justice. I hope we'll get that.

Finally, I want to ask you—

5:15 p.m.

Liberal

The Chair Liberal Anthony Housefather

You're out of time, but you can have a short question.

5:15 p.m.

NDP

Murray Rankin NDP Victoria, BC

I have a quick one. Most people think this government is opposed to mandatory minimum sentences, but you point out that there are mandatory sentences in Bill C-46. Is that correct?

5:15 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Sarah Leamon

We are seeing that the sentences are being increased substantially. Also something that really struck me when I was reviewing this bill were these new aggravating factors that are now meant to be considered. Some of them, quite frankly, lack definition and clarity. I am a little bit apprehensive about how those are going to be employed by our courts.

They are going to dissuade people from entering an early guilty plea when they might otherwise do so. That is going to create delays. Where an accused person feels they have nothing left to lose, then they are more likely to run that trial, and it does take an immeasurable amount of resources to do that.

5:20 p.m.

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

Michael Spratt

I think if you want to really tackle delays, look at the minimum prohibition period.

5:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Spratt, I'm sorry but we're way out of time on Mr. Rankin's questions and we have to move to Mr. Fraser.

In one of your other responses maybe you can throw it in.

5:20 p.m.

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

Michael Spratt

I'm sure I can make that work.

5:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

Okay.

Mr. Fraser.

5:20 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Thank you all very much for being here. I have very much enjoyed listening to your presentations.

On the last point, though, with regard to saying that the sentences are increased substantially in this bill, I know Mr. Rankin's question was on minimums. There is no introduction of new minimums in this, is there?

5:20 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Sarah Leamon

There are no new minimums, but we are seeing a much wider range of sentences.

5:20 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Yes, but when there is a wider range of sentences, that doesn't necessarily lead to people saying that they're going to roll the dice at trial because what's the point of not going to trial if they're going to be pleading guilty and having a minimum sentence? You agree that raising the maximums just gives the court more discretion in imposing a fit and proper sentence without limiting the ability of the accused to argue on sentencing.

5:20 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Sarah Leamon

I'm sorry but I can't agree with that. Just from a practical perspective, as a criminal defence lawyer, I know that where my client is seeing more jeopardy in terms of what kind of sentence would be handed down to them and where the initial crown sentencing position is a much higher, harsher sentence, they aren't motivated to enter an early plea. So, I do see these things, certainly, contributing to delay and, again, I want to point out those aggravating factors, because these are things that are properly considered by our courts already. There is no reason for them to be codified here.

5:20 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

On the issue of delay, just very briefly, on the interlock device and the introduction of getting rid of the mandatory prohibition for at least three months, do you see that having any ability to resolve impaired driving cases more quickly?

5:20 p.m.

Associate Barrister and Solicitor, Acumen Law Corporation

Sarah Leamon

I think that Mr. Spratt has indicated that he is very enthusiastic about this.

5:20 p.m.

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

Michael Spratt

Yes. In Ontario we actually have seen that, because if you plead guilty in first 90 days, you can take advantage of the interlock system and get your licence back early. There is a lesser prohibition. There are a few problems with that. It's available only to people who have money. That's a problem. The other problem is that, on the one hand, it can resolve things but it can also act as a bit of a perverse incentive to maybe plead guilty when you're not guilty.

One of the things you could do—which would be really great and which would clear up the courts and be equitable financially and just in terms of fairness—is to look at the mandatory minimum prohibition periods and whether there could be exceptions built into that to allow people to keep on working or to do other valuable things under some conditions that might actually help resolve files, take into account disparate income levels, and make sure that people don't lose their jobs. I had a client who was unable to drive his wife to cancer treatment because of the minimum prohibition. He was the only one who drove and he lived in the country. There could be some fairness introduced in that measure as well, and I think that might help resolve matters, because there might be an incentive there for everyone to resolve.