Evidence of meeting #26 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was evidence.
A recording is available from Parliament.
4:15 p.m.
Liberal
4:15 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Thank you, Mr. Chair.
Mrs. Deshman, I'd like you to expand a little on something you mentioned that I think is important. You said that similar legislation had been adopted in other jurisdictions where there had been media and education campaigns.
We think that one of the biggest weaknesses in the bill is that we do very little to prevent people from getting in their cars. We can impose penalties after the fact, but our objective remains ensuring that no one dreams of getting behind the wheel after drinking too much alcohol.
I'd like you to talk about how it worked. How could we incorporate those suggestions and methods to better correct the situation?
4:15 p.m.
Director, Public Safety Program, Canadian Civil Liberties Association
I can go through some of the other measures the other jurisdictions had in place when they moved from selective breath testing to random breath testing. New Zealand, for example, when it implemented random breath testing in 1993, increased their enforcement, so that they had 1.5 million breath tests annually in a country of 2.3 million registered vehicles. That's a massive number of breath tests. That year, 7 in 10 licensed drivers were pulled over.
To increase that level of enforcement would send an incredibly strong message of denunciation. It would have an incredibly powerful impact as a deterrent, regardless of whether you have selective breath testing or random breath testing. Imagine what a powerful symbol that would send across the country.
Similarly, Ireland has drastically increased enforcement and they had massive publicity campaigns. They lowered alcohol regulatory requirements in New Zealand. In Australia, they said that at the very minimum, one in three drivers needs to be pulled over annually, ideally, one out of two.
Those are all measures that are within our power, within the existing legislative regime, that have had enormous impacts in other countries. They would have some of the denunciation impacts that you are very concerned about as I am.
4:15 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Thank you.
My other question has to do with minimum sentences. Any of you can answer.
Correct me if I'm wrong, but I think that someone who assesses the consequences of drinking and driving isn't really concerned about the severity of the punishment, but rather the chances of getting caught by a police officer and the speed with which sentencing occurs. Is that correct?
Could we rectify what is before us in this bill? I'd like to hear everyone's opinion on this.
4:15 p.m.
Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
Yes, the evidence definitely supports that contention. When individuals are engaging in a crime, they're not necessarily thinking of the mandatory minimum sentence or the likely consequences, and that might be even more so in the context of impaired driving.
It's not the punishment necessarily, according to experts, that deters crime. It's the criminalization of the conduct itself, and the likelihood of being detected. This bill falls down on various aspects of that analysis as well.
4:20 p.m.
Director, Public Safety Program, Canadian Civil Liberties Association
I agree. It's the likelihood of detection and the swiftness of the punishment. That is what the literature suggests. An increased enforcement would allow for both of those to occur, especially if swift punishment happens under provincial driving suspensions as opposed to a lengthy criminal process. Those punishments can be equally effective in deterring many individuals.
4:20 p.m.
Policy Director, British Columbia Civil Liberties Association
I'm not an expert in this kind of research at all, but what I have seen indicates very clearly that the key component here is enforcement. We do realize that's a resource-intensive solution to the problem, but it does appear to be the one that is ubiquitous upon all jurisdictions that have seen massively improved road safety.
4:20 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
There are several lawyers around the table. I'm not one of them, so if you'll bear with me I do have another question.
My reading of these situations is that the judge's discretion has always been important and that mandatory minimums take away from that. I've read that some folks are concerned with this bill. By imposing the mandatory minimum despite the fact that society is moving toward more and more disdain for drunk driving, as Mr. O'Toole rightly pointed out, there is a risk that by sort of forcing a judge's hand you actually get the opposite effect, and that some folks might get off free because the judge feels they don't deserve the mandatory minimum. Is that a potential consequence of what we have in front of us?
September 29th, 2016 / 4:20 p.m.
Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
That's a consequence of the inevitable and likely successful constitutional challenge. It's also a consequence of many of the other provisions, including the evidentiary shortcuts, the watering down of requirements such “as soon as practicable”, the officer having a reasonable belief that the motor vehicle was operated within a certain time, of the reading-back provisions. All of those shortcuts as well are all pathways to courts not sanctioning people who may truly be guilty and would have been captured under the existing legislation.
4:20 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
My final question would be on police resources that were mentioned. How does that play into what we have before us? I mean, we sometimes hear there are certain jurisdictions where resources can be an issue. Does that amplify some of the problems you have all brought up?
4:20 p.m.
Director, Public Safety Program, Canadian Civil Liberties Association
I think all of the studies I've read say that enforcement is critical. There are interesting cost analyses, which I am not an expert in, that try to look at the benefits in terms of the health care costs versus the dollars spent on the enforcement costs, but you'd have to talk to other witnesses about that.
4:20 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Thanks very much.
I agree with much of what you've said today, but I'm going to try and play devil's advocate here.
Bolus and intervening drinking defences, I take it, are extremely rare. We had the Department of Justice attend before us and I think they said they accepted that. Still, when they were before us, justice said that courts have referred to these defences, this behaviour, as reckless. Who would have drinks and use that as a defence in the wake of a charge for impaired driving?
Is there a way to amend the legislation and eliminate these defences, or significantly curtail them, and keep it constitutional?
4:20 p.m.
Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
I think there would be a way to do that through specific amendments that may contemplate it. The problem is, as you've put it, you consume a bunch of alcohol and you get in a car, you're still absorbing that alcohol. When you get pulled over, you've yet to absorb enough to put you over the legal limit, but if that officer pulled you over 10 minutes later, you would have been over the legal limit.
This is obviously highly morally blameworthy behaviour, there is no question about that, and there certainly can be some limited amendments that might allow a court to consider that absorption rate, with the proper expert evidence, to say that if you had been over the limit within a certain time of driving, if you were caught driving.... Amendments of that nature and that limited scope may correct the problem.
What this bill does, unfortunately, is to eliminate this bolus drinking and sort of after-driving drinking defences problem, which is rare. I've consulted widely with people who do a lot of work in this area, and they are rare defences. But what the bill does to eliminate those rare defences is that it criminalizes, and will criminalize, people who have driven with no alcohol in their system—
4:25 p.m.
Liberal
4:25 p.m.
Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
—and had a drink after. Or people who had no alcohol in their system, or some alcohol in their system but not close to the legal limit, who had a drink after, and then were unable to comply with the exceptions, including hiring a toxicologist to read back their readings. So it not only creates unfair situations where stone-cold sober driving is criminalized, but it also penalizes those individuals who can't afford to mount that sort of evidence to overcome those very repressive exceptions.
4:25 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
I'd like to move to RBT.
Ms. Deshman, I appreciated your argument. There are a number of studies, there's conflicting evidence, and so if we took it to section 1 there's perhaps not enough justification there on the evidence.
Picking up on what Mr. O'Toole said, if it were limited to a RIDE check, do you think it might be constitutional?
4:25 p.m.
Director, Public Safety Program, Canadian Civil Liberties Association
I think the scope of the power you're looking at would be very different.
If you only implement random breath testing, I think there are still serious questions about whether that's actually going to have any impact in the absence of all the other measures that we're looking at.
Limiting it to RIDE stops is something that we put in our recommendations as an alternative.
I would also like to see, not only limiting it to RIDE stops, but actually having those RIDE stops be randomized. If you cannot test every single driver running through that RIDE stop, then make sure it's every fifth driver—
4:25 p.m.
Director, Public Safety Program, Canadian Civil Liberties Association
—or every sixth driver, so that we really do eliminate many of the profiling concerns that we've raised in our bill. That would be quite a different proposal, and I think my analysis might well be different.
4:25 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Ms. Vonn, do you have a different analysis, or would you largely agree with Ms. Deshman?
4:25 p.m.
Policy Director, British Columbia Civil Liberties Association
No. I largely agree with that. We came to the same conclusion.
4:25 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
As the representative of a Toronto riding, I'm certainly very concerned about racial profiling. I contacted Professor Hogg over the summer and went through his brief to MADD. We spoke about the case of Orbanski.
In that case, it appeared one of the accused was stopped randomly and given a screening breath test, and then went on to be charged.
Do the police not have existing powers to pull folks over on a random basis and administer a screening breath test? What's the additional concern with RBT?
