Public Safety Committee on Sept. 27th, 2016

[The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

Today we are starting our consideration of Bill C-226, which has been passed at second reading and referred to the Standing Committee on Public Safety and National Security. This reference, which has come to us, is an act to amend the Criminal Code (offences in relation to conveyances) and the Criminal Records Act and to make consequential amendments to other acts that are indicated in the bill.

This is a private member's bill, and Mr. Blaney, the proposer of the bill, is not here yet. He will be coming at some point during our study of the legislation. However, to kick us off, we thought it would be helpful to have officials from the Department of Justice. We have also requested that an appropriate witness from Public Safety be available for your questions.

As I mentioned to the committee members, we won't be having opening statements from the witnesses. However, they are available for committee members to question with respect to the substance and issues related to this private member's bill.

We welcome Carole Morency, director general and senior general counsel of the criminal law policy section at Department of Justice; Greg Yost, counsel from the same section; and Talal Dakalbab, executive director general at the Parole Board of Canada.

Thank you very much for joining us. We have questioners and we're in a seven-minute round. We begin with Mr. Mendicino.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you very much, Mr. Chair, and I thank the witnesses very much for their anticipated testimony this afternoon.

Bill C-226, which is an act to amend the Criminal Code (offences in relation to conveyances) and the Criminal Records Act and to make consequential amendments to other acts, is essentially about our criminal law justice approach to driving under the influence of alcohol.

As I read the bill, it can be broken down into several general buckets or categories. One is the introduction of random Breathalyzer testing. The second is the introduction of mandatory minimum sentences for offences under this particular category of offence, applied, some might argue, more strictly than in the past. Third is another category of technical provisions that have an impact on the way these offences are both investigated and eventually prosecuted in the event that charges are laid.

The area I'd like to focus on first is the one addressing mandatory minimum sentences. As I assume most if not all of you will know, the Supreme Court of Canada recently commented on mandatory minimum sentences and on how in certain circumstances they can be vulnerable constitutionally. I'm looking in particular at proposed section 320.19, proposed paragraphs 320.2(a) and 320.2(b), and proposed subsections 320.21(1) and 320.21(3). I don't think we need to go through them verbatim, but looking at them through that lens, given that there are a number of provisions, could you comment generally on whether the introduction of a mandatory minimum sentence regime in the context of this bill might be vulnerable to a similar constitutional challenge.

[Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice]

There will undoubtedly be a constitutional challenge to any higher mandatory minimum penalties.

I think it would be fair to say that the bill introduces a higher mandatory minimum penalty for a fourth offence by someone reconvicted of impaired driving. It also introduces higher mandatory minimum penalties when you proceed on indictment. There are also a number of changes for the mandatory minimum penalties coming in for causing bodily harm and causing death offences, and they're extended beyond the impaired driving to dangerous driving and other offences. There are actually a large number of new mandatory minimum penalties in the bill.

We are, of course, aware of Supreme Court jurisprudence. The people who supported higher mandatory minimum penalties in the past considered that a gradation—going first, second, third, starting at a low level of $1,000 fine, and working towards a one-year minimum on a fourth offence—would be defensible.

I'm not going to say it would be upheld, but it would be defensible, and the same would be true if it were extended to dangerous driving and other offences. That was the reasoning behind that, which I'm sure you realize was the case in the previous government's Bill C-73.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Would either Ms. Morency or Mr. Dakalbab like to comment?

[Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice]

I'd like to affirm that, as you know, the Supreme Court recently pronounced on the issue of mandatory minimum penalties, the most recent case being R. v. Lloyd before April of this year, and before that, R. v. Nur. In both of those instances, the Supreme Court pronounced in a more fulsome way on how an MMP may run afoul of the charter and slightly tweak the analysis that they had been using to that point.

That said, some mandatory minimum penalties have been upheld in the past, including by the Supreme Court. There's no question that moving forward, to the extent that mandatory minimum penalties are being proposed—and remember that this is a private member's bill and not a government bill—that will be in the new environment of the Supreme Court's pronouncement on mandatory minimums.

I believe the parliamentary secretary to theMinister of Justice has indicated, as part of the second reading debate, that the government would not be supporting higher mandatory minimum penalties as proposed by this bill with the exception of these mandatory fines.

The committee may also be aware that the Minister of Justice is currently reviewing the whole Criminal Code approach to the use of mandatory minimum penalties. That review has, of course, not only been informed by the round tables she's been engaging in with stakeholders across the country as part of the criminal justice system review but also been part of a specific review of the issues of mandatory minimum penalties, and has been conducted in light of Supreme Court jurisprudence.

There are indeed issues and how the Supreme Court will address the issue will indeed be a bit of a new territory for it moving forward.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I'd like to build on both of your answers.

Citing the recent Supreme Court of Canada case, the majority wrote as follows. This begins at paragraph 35 of R. v. Lloyd:

If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.

Another solution would be for Parliament to build a safety valve that would allow judges to exempt outliers for whom the mandatory minimum [sentence] will constitute cruel and unusual punishment.

Set aside the last sentence. I guess the first sentence begs the question of whether or not the author of this bill— you take it from the introduction of these MMPs—believes that the current regime does not sufficiently either deter or denounce this particular category of offence, and that the introduction of these MMPs does not offend that principle that I just referred to, namely, that it doesn't cast the net too broadly.

Can you respond to that?

[The Chair, Liberal, Rob Oliphant]

I'm afraid you're over the time. It was a long introduction.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you, Mr. Chair. I'll hope that one of my colleagues will pick up on that.

[The Chair, Liberal, Rob Oliphant]

All right.

Mr. Miller.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Thank you, Mr. Chairman.

Thank you to the witnesses for being here today.

I want to touch again on what Ms. Damoff talked about, the constitutional rights in here. I want to be clear. Random breath-taking is what we're talking about here in a nutshell. It's being able to stop anybody at any time. It could be for good reasons; it could be for bad reasons. In your opinion, I think I'm hearing that it would probably or definitely be challenged under the Charter of Rights and Freedoms. Is that correct?

[Greg Yost]

Again, I would say we would expect a challenge. I would say, however, that the power to stop someone at random flows out of provincial legislation and common law, and it has been upheld by the Supreme Court of Canada on several occasions.

What is different here is that instead of, when the person is stopped, the police officer developing a suspicion of alcohol in the body by smelling alcohol or whatever in order to justify an approved screening device demand under mandatory alcohol screening, as it's called in Ireland these days, the police officer will present the approved screening device to the person and demand that they provide a breath sample so that he can get a scientifically valid indication of whether or not they are above the legal limit.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Just on that, before I go to the other witnesses, Mr. Yost, is what I think you just said not already happening today? I just went through a spot check last Thursday night in my riding. Of course, I wasn't drinking. They do them all the time, but unless they can see, or smell, or suspect that I've had alcohol or something, the officers can't go any further. Obviously, if I'm sitting there with an open drink of some kind in the vehicle, then they can do it. Is what you just said not already possible today?

[Greg Yost]

The random stopping is definitely possible. I think we all know that if an officer indicates to us that we are to stop and pull to the side of the road, then we are obliged to do so, and that's under provincial law.

As I said, once you roll down the window, he'll start asking you some questions about whether you've had a drink, and he'll ask you to show your driver's licence and your registration. That police officer is looking for clues, such as the smell of alcohol, your fumbling with your documents, or something to develop the suspicion of alcohol. Only then can he ask you to provide a breath sample into an approved screening device. Under what's called random breath testing, the police officer, for whatever reason he may have pulled you over, purely randomly, can say, “Show me your registration and your licence, and, by the way, prove your sobriety by blowing into this approved screening device”. That's the fundamental difference.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Okay, but here in Ontario an officer has to have a reason. Mind you, sometimes they stop people without good reason. We all hear about that every now and then, but under the law, they are not supposed to be able to stop you without good reason, such as, for example, your licence plate light is out; a tail light is out, or you're swerving on the road. Is that not true?

[Greg Yost]

I'm not an expert on the Ontario Highway Traffic Act. I do know they run RIDE programs in which they pull everybody over at random. I shouldn't say everybody. They fill it up, and they talk to those people, and then when they're finished with them they bring in some new people. I am aware of several court cases in which the police, as part of an anti-drinking and driving campaign, have started to pull drivers over at random—generally in the wee hours of the morning in the party section of town—and they're doing it to check for sobriety. That's their reason, and that's been upheld by the courts.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Okay, thank you.

Ms. Morency or Mr. Dakalbab, do you care to comment on the constitutional aspect of it or on the rights part of it?

[Carole Morency]

I wouldn't have anything to add other than the fact that impaired driving provisions in the Criminal Code today and historically have been among the most litigated parts of the Criminal Code. When there is a reform in this area, be it small or significant, as private member's Bill C-226 proposes, it's reasonable to expect that there will be charter challenges. That does not mean that provisions would necessarily fail because of the charter challenges, but it is a reality.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Do you have anything further to add?

Do you know of any province or place, even in another country, where this law is in place? I'm not aware of any, but I'm just asking.

[Greg Yost]

There are laws for various types of random breath testing. It's hard to be sure in how many countries. I have a document here from the World Health Organization that claims there are 121 countries that have some form of it. I'm dubious of that number. A paper was produced by Professor Chamberlain, the legal adviser to MADD Canada, who might perhaps be one of your witnesses. He listed 73 countries with a form of random breath testing; that I do know. The department's discussion paper in 2010 included a recommendation by the European Commission that random breath testing be conducted in all countries in the commission as part of an overall program to combat impaired driving. I have the laws of the seven states of Australia here. They all have purely random breath testing. I say that because there are some places, and Ireland is one of them, where they have it at a check stop. They bring the people in and they blow, but they do not have any roving police officer pulling people over. Australia has what I would call purely random breath testing. Let's just say running random breath testing checkpoints in rural Canada could be difficult.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Am I out of time, Mr. Chairman?

[The Chair, Liberal, Rob Oliphant]

Yes. We might come back to you again.

We will continue with Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Mr. Chair.

I also have questions about mandatory prison sentences. If Bill C-226 had one element that was not up for debate, it would definitely be drunk driving. It's important to point that out. We all agree that we have to reduce the number of drunk driving cases and the resulting tragic consequences.

This is our first meeting on this bill. So we have not yet had an opportunity to hear MADD's testimony. Unless I am mistaken, that organization said that one of its concerns about Bill C-226 is that mandatory prison sentences may lead to a drop in the conviction rate because, ultimately, it's all or nothing.

In that spirit, if judges were given some discretion, do you believe that drunk drivers would be convicted more often? Judges actually have the discretion to make their decision based on the circumstances that, tragedies notwithstanding, can still vary from case to case.

[Greg Yost]

Judges currently have discretionary power with respect to mandatory minimum sentences, which are already part of the Criminal Code. For a first conviction, the penalty is a $1,000 fine. The sentence is 30 days of imprisonment for a second conviction and 120 days for a third conviction. In the case of a summary conviction, the prison sentence can be up to 18 months, and up to five years if the prosecution proceeds by indictment.

If the bill were passed, added to those first three sentences on summary conviction would be a fourth penalty consisting of one year of imprisonment. Maximum sentences would be increased practically throughout the legislation. That should not lead to any issues in terms of the charter because judges' discretionary powers would not be limited. Those powers may actually be slightly increased.

I don't know what MADD said about the possibility of judges refusing to convict someone if they feel that the mandatory minimum sentence is too high.

A clause of the bill empowers a judge—if no bodily harm or death was caused—to delay the sentencing to allow the offender to attend a treatment program to resolve their substance abuse problem. If the individual manages to resolve their problem, the judge would not be required to impose a mandatory minimum sentence. The Criminal Code currently contains a similar provision, but it is not in force in British Columbia, Ontario, Quebec or Newfoundland and Labrador. So the bill would extend this idea to the entire country.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Okay.

I am curious about something.

You said that this would not be an issue in terms of the charter, and I understand that. When we talk about mandatory prison sentences, we are also talking about the effectiveness of measures. Yet there has been no drop in the number of drunk driving cases over the last 10 years.

Do you think this measure is ineffective in the justice system?

[Greg Yost]

I will not criticize judges. I won't do that.

Over the past two or three years, we have started to see a drop in the number of cases. It's true that a lot of progress was made in the 1980s and 1990s, when records were set in this area.

In 2009, the Standing Committee on Justice and Human Rights called for higher penalties for repeat offenders and individuals with a high blood alcohol level. Naturally, the government at the time accepted that recommendation. So we tried to respond to that request or recommendation. That is why Bill C-226 does not provide for higher mandatory minimum penalties.