Thank you, Mr. Chair.
On the subject of impaired driving, of course there are no two sides. We are all on the same side. Everyone advocates for road safety. The only points of contention relate to the best way to achieve that, while maintaining the integrity of the justice system.
In our view, this bill misses the mark in some crucial areas, I'm going to be addressing three aspects of the bill, which are sentencing, procedural protections at trial, and police searches.
To begin with sentencing, this bill contains mandatory minimum sentences that should be reconsidered. The view that general or specific deterrence can be achieved through mandatory minimum sentences is deeply held, but completely mistaken. The evidence shows that mandatory minimum sentences do not deter any more than proportionate sentences reached through the exercise of broad judicial discretion. This is true, even where mandatory minimums constitute a greatly increased penalty.
As MADD notes in their December 11, 2015 report, “...research during the last 35 years establishes that increasing penalties for impaired driving does not in itself have a significant specific or general deterrent impact.”
While failing to provide a benefit in deterrence, mandatory minimums create significant risk of harm. These include excessively punitive and unfair sentences, and shifting the discretion from the public and reviewable process of the courts to the secret, non-reviewable purview of prosecutors.
As research conducted by the Canadian Sentencing Commission shows, plea bargaining increases in the context of mandatory minimums, and this informal criminal justice system serves no one's interests. It can undermine proportionality, equity, and certainty in sentencing, leveraging guilty pleas regardless of culpability, and insulating the process of criminal justice from transparency, accountability, and constitutional safeguards and review.
I have provided the clerk with the link to our association's comprehensive report on mandatory minimum sentencing for your consideration.
Moving to the second point of procedural protections, statutory presumptions and evidentiary matter, in our view there is a very dangerous assumption that appears to be operating in respect of this bill, which is if we reduce the procedural protections for people who are accused of impaired driving we will make our roads safer. This is wrong. We do not increase public safety by putting accused persons at risk of injustice.
This bill would significantly reduce procedural protections in the trial process for those charged with impaired driving through a variety of means ranging from limiting disclosures to the defence, to imposing evidentiary presumptions favourable to the prosecution. None of the procedural diminishments and rights to the accused in the trial process can be justified.
We adopt the submission of the CCLA, which you will be hearing about in a few moments, with respect to the insufficiency of the evidence on the efficacy of drug testing and drug recognition testing. Procedural safeguards that guard against wrongful conviction are always, obviously, dangerous to reduce, but doing so in a setting where critical evidence is likely to be of questionable reliability should not even be considered.
I'd like to draw your attention to evidence that runs counter to the prominent view in some spheres that appropriate prosecutions of impaired driving are regularly derailed.
The StatsCan report, “Impaired driving in Canada, 2011”finds that, “Compared to most...offences, impaired driving cases are more likely to result in a guilty outcome.”
The 2010-11 StatsCan report cites 84% of impaired driving cases resulting in a guilty finding, and this proportion has been maintained in its stability for the past 10 years. There is some regional variation in this proportion, which we see ranging from 81% in Ontario and Alberta to 93% in P.E.I. This is a much higher percentage of guilty findings than for completed cases in general, which stands at 64%.
The evidence from StatsCan is that, for over a decade, impaired driving cases have produced a much higher percentage of guilty findings than have criminal cases in general. It is unclear to me how MADD's paper in 2015 came to cite figures and conclusions that are so different from and at odds with the data presented from StatsCan.
Finally, on police searches and Breathalyzers, arguably the heart of this bill is to provide for randomized Breathalyzer testing, or RBT. It was only yesterday, I confess, that I was able to access a copy of Peter Hogg's opinion on the constitutionality of RBT. Having now received that, we concur in the opinion of our colleagues at the CCLA with respect to the weight of evidence that was relied on regarding the effectiveness of RBT. We have not been able to review this evidence sufficiently in order to come to a definitive position, but it is nevertheless extremely clear that the evidence is highly contested.
Careful attention to methodology is always needed in reviewing studies, and a selective review of studies is always problematic. It is for this reason that systemic studies are so compelling—because they attempt to correct for methodological shortcomings and selection bias. Thus, in our view, the committee should be giving very serious weight to the systemic study of the Traffic Injury Research Foundation cited in the CCLA's submission. That systemic review found no evidence that RBT substantially enhances road safety over our current regime.
Evidence on this subject is, of course, central to the question of the constitutionality of such a provision. Were such evidence to be produced, RBT would be justified and its potential discriminatory impact would nevertheless still be outstanding.
There is considerable evidence in Canada of discriminatory policing, particularly based on race. Even though crucial data for the assessment is often not collected, we are at a juncture where there is great agreement on the need to prevent police targeting of racialized communities.
Advocates of RBT point out that if it is used most often in the context of sobriety checkpoints, then you have a system that is genuinely random and non-discriminatory in its selection; however, proponents of RBT insist that individual officers also be given the discretion to demand testing of drivers outside the context of checkpoints, arguing that remote or rural areas, for example, have resourcing issues that do not extend to having regular checkpoints. Given that these tests would be administered expressly on the basis of having no criteria for suspicion, such unfettered officer discretion facilitates discriminatory selection of drivers.
In our view, RBT, were it to be clearly justified, should nevertheless be limited to checkpoint situations, which proponents concede constitute by far most of the current uses of such programs in other jurisdictions. This would extract the maximum benefit of such programs while still ensuring that RBT use would not be compounding the discriminatory profiling of racialized communities. It would also further facilitate a basis for assessment and review of the program in order to determine whether any changes are needed or justified.
Those are my preliminary comments.
Thank you.