I'll try to be as efficient as that.
I guess the first step is to dispense with my normal pleasantries and get right to the heart of things. This is a massive bill, and we won't have enough time to cover everything. I submitted a 32-page brief. I decided to one-up my friends here. I did crib a little bit of their work, though, so credit should be given. In typical criminal lawyer standing, I submitted it late last night. It's not yet been translated, but I'm happy to answer questions and follow up if anything comes up.
The CLA supports legislation that's fair, modest, and constitutional. While the CLA supports the objectives of protecting society from the dangers of impaired driving, we are unable to support this bill in its current form. The CLA cannot support legislation like this in its current form, or actually not much of this legislation at all. Nonetheless, in my written brief I offer some suggestions for amendments should this committee come to a different conclusion.
This once government bill, now introduced as a private member's bill, requires a real enhancement of scrutiny and study commensurate with the massive changes it brings to the Criminal Code in relation to impaired driving and related offences. Changes as fundamental as those proposed in this bill should be the subject of extensive review, full justice department reports, broad consultation, and ideally an examination by a body such as a law reform commission.
I do adopt the submissions of my friends as our own, in addition to what I'm about to say.
In our view, any provision of this bill that imposes mandatory minimum sentences, fine or jail, must be removed, and current mandatory minimums should be examined. Mandatory minimum sentences are an ineffective method of achieving the principles of sentencing. Minimum sentences are a one-size-fits-all solution that sacrifices fairness and proportionality without any resulting increase to public safety. Minimum sentences result in economic costs, place undue burdens on the correctional system, and, perhaps more importantly, they devalue the principles of judicial discretion and basic fairness. The mandatory minimums contained in this bill are unconstitutional.
We are also deeply concerned by the new random breath-testing regime. Increasing police powers does not come without societal cost. The experience of carding or street-checking—disproportionate arrest and charging of visible minorities for marijuana offences—makes this clear. The exercise of police authority can and does disproportionately affect visible minorities.
There are opinions, which I'm sure this committee will hear, that come to a different conclusion and suggest that the random breath-testing measures in this bill are constitutional. I would suggest that the evidence that those opinions rely on should be examined very carefully. Even if that evidence is correct, it's only the most charitable view of the circumstances of those random breath tests that will pass muster. I give an example in my paper of some situations that would not pass muster at all and that I think would be offensive to many members on this committee.
Bill C-226 also represents a significant expansion of state powers and contains numerous evidentiary shortcuts. I don't want to minimize it, because they're not really shortcuts. They're shortcuts to the pre-existing shortcuts. Those shortcuts risk trial fairness. They include, as outlined in my paper, number one, charges to the very offence of driving with a blood alcohol level of over 80 milligrams. That would no longer exist. It would be having a blood alcohol level of over or equal to 80 milligrams within two hours of driving. These are massive changes.
The de facto reverse onus provisions included in this bill are problematic. The presumptions about blood alcohol level represent a dangerous shortcut that needs careful evaluation. The relaxed standards with respect to obtaining breath samples for the purposes of screening should be of concern as well, as is the complete relaxation and abdication of any judicial oversight with respect to the evaluation of expert evidence that this bill, in some cases, makes definitive with respect to guilt or innocence.
These shortcuts will impact trial fairness. They will engage significant charter concerns. Ultimately, and perhaps more importantly, these shortcuts will devalue and limit the quality of evidence that's presented in our courts.
Finally, there are some sections to the bill that are unquestionably unconstitutional such as the amendment that permits the use of compelled statements for the purposes of grounds to make a breath demand.
The Ontario Court of Appeal and the Supreme Court, over the last 15 years, have found this to be a violation of the charter that's not saved by section one. There's no need to have a Supreme Court reference on the section. We already have it, and the results are not good.
In light of the breadth of this bill and the massive changes the study detailed here—but limited—that this bill will receive, we simply cannot support this legislation, and I would urge the committee to carefully examine our written submissions along with our detailed suggestions for amendments should this committee see fit to approve any of these sections.
Thank you.