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.
Liberal
The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)) Liberal Rob Oliphant
I call to order this 26th meeting of the Standing Committee on Public Safety and National Security.
Thank you, witnesses. I would ask that you indulge us for one minute. We have one piece of committee business we would like to do before we begin our actual work today, and that is to correct something that happened during the last meeting.
I understand that Ms. Damoff has a motion to present.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
I do. It's on the title of our report. A word was put into the record incorrectly. I said “occupational” instead of “operational“ stress.
The motion I have is:
That the motion adopted on September 27 regarding the English title of the Committee's report on Operational Stress Injuries and Post-Traumatic Stress Disorder be rescinded and replaced by the following: That the report be entitled "Healthy Minds, Safe Communities: Supporting our Public Safety Officers through a National Strategy for Operational Stress Injuries”.
I'm sorry about that.
Liberal
The Chair Liberal Rob Oliphant
Is there any discussion? Our report all the way through says, “operational stress injury”. It was a mistake and we simply want to correct it. Thank you.
(Motion agreed to)
We have one other little piece of business we could get done today, which will be helpful, and that's with respect to next week.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Chair, I'd like to move:
That the analysts and the Clerk, in consultation with the Chair, prepare a news release for publication on the Committee's website and for distribution in relation to its upcoming public consultations on Canada's National Security Framework.
(Motion agreed to)
Liberal
The Chair Liberal Rob Oliphant
Thank you.
Thank you, witnesses, for indulging us. That is the last little piece of work to get a study done that we have been working on as a committee.
We have now moved our attention, at least for the moment, to a bill that has been referred to our committee, Bill C-226, amending the Criminal Code and consequential amendments to other acts.
We have with us today three witnesses, two in person and one by video conference. I'm going to suggest that we begin with the video conference, only because when things go wrong, as they sometimes do, it's easier if we have someone else talking while our technical people heal all wounds. I suggest that we start with a 10-minute presentation from Micheal Vonn, the policy director at the B.C. Civic Liberties Association, and after that we'll hear from Michael Spratt from the Criminal Lawyers' Association, and Abby Deshman from Canadian Civil Liberties Association.
We'll begin first with Ms. Vonn
Micheal Vonn Policy Director, British Columbia Civil Liberties Association
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.
Liberal
The Chair Liberal Rob Oliphant
Thank you very much.
That was very clear and helpful.
Who would like to go next?
Abby Deshman Director, Public Safety Program, Canadian Civil Liberties Association
I have been nominated. I'll go first.
Director, Public Safety Program, Canadian Civil Liberties Association
Thank you very much for the opportunity to appear before you today.
I am Abby Deshman. I'm a lawyer and program director with the Canadian Civil Liberties Association.
Like the BCCLA, we fully support the goal of this bill. We know that impaired driving is a serious concern in this country. The government clearly has a strong role that it can and should play in combatting this persistent social problem. We know we can do better. Unfortunately, we don't think that this bill, in its current form, is the right answer.
This afternoon, I'll touch on four specific areas of concern. I do have a written brief, but unfortunately it wasn't here in time for the official translation. It is lengthy—it ended up being 19 pages—but I'll go through what I can.
The four areas are as follows: mandatory minimum sentences and fines; the imposition of consecutive sentences; random breath testing; and the new statutory presumptions in the drug-impaired context.
First, simply put, mandatory minimum sentences do not work. They are ineffective and unjust. Decades of research has clearly shown that stiffer penalties do not deter crime. The mandatory minimum sentencing and fine regime that's in place in this bill will not deter drunk driving. It will, however, constrain our courts and impose unjust sentences on a subset of the population that have committed these crimes. Mandatory minimum sentences are a failed public policy experiment, and we think they should be ended. We did welcome the comments of Mr. Blair in the House of Commons. He said that the new mandatory minimum sentences would be removed or should be removed from this bill and he encouraged this committee to do so. We fully support that step; we think we should go further in Canada.
If you just remove the new mandatory minimum sentences, that will still leave a whole slate of mandatory minimums that were in existence before this bill was proposed, including a set of mandatory minimums that were harshened as recently as 2008 under a previous government. We do not think that they are necessary in order to combat impaired driving.
We similarly believe that mandatory minimum fines are not useful in combatting impaired driving. There is no reason to think that where mandatory minimum sentences do not deter crime that fines will somehow be more effective. In fact, fines operate to discriminatorily target those who do not have as much money as other Canadians.
Mandatory minimum sentences may impose unjust sentences on some Canadians. Mandatory minimum fines will always impose unjust sentences on those who are living on social assistance or disability, whereas they will not be a hardship for wealthy Canadians. That kind of sentencing regime is unfair. We don't think it's necessary. It does not contribute to public safety, and we encourage this committee to repeal the mandatory minimum sentences and fines in this bill.
Of secondary concern is the imposition of consecutive sentences. I know this has been addressed in the House of Commons as well, so I'll be brief, but proposed subsection 320.22 (2)—that's the mandatory imposition of consecutive sentences for impaired driving causing death— is extremely concerning, and, we believe, unconstitutional. The mandatory minimum for impaired driving causing death in this bill right now is five years. That means that one accident, which tragically kills more than one person, will result in 10, 15, 20 or more years of a mandatory jail sentence. For us it's clearly a contravention of the right to be free from cruel and unusual punishment. It needs to be removed from the bill.
Our third area of focus is the expansion of arbitrary police stop and search powers through the introduction of random breath testing. As you will be able to see from our written materials, we have significant concerns about the likely impact and ultimately the constitutionality of this new proposed power. We have looked at the extensive research that has been published relative to the Canadian context in papers as well as Mr. Hogg's opinion. We do not believe that the key question in Canada, the most relevant question in Canada, is answered by the existing literature.
For Canada, what we need to ask is not whether random breath testing is effective; it's clear that it is. It is clear that random breath testing does work. What we need to ask is whether it will be more effective in deterring impaired drivers than is our current regime, which involves selective breath testing and which we have had in place for many, many years. That is the question that is extremely difficult to answer and I think, frankly, it is not possible to answer with regard to the existing international comparators and research.
There are two main problems with the studies and international comparisons that I've seen.
First, while it's true that the introduction of random breath testing has been revolutionary in many countries, the vast majority of those jurisdictions did not have any roadside testing program before they introduced random breath testing, so we're not comparing it to the situation in Canada, which has had decades of RIDE programs in which drivers are stopped on the side of the road; we're comparing it to a situation of having almost no real enforcement at all.
As a result, in Canada we have had our own revolution in impaired driving due to selective breath testing, as well as other initiatives. We've seen the percentage of driver fatalities involving alcohol drop from 62% in 1981 to 33% in 1999, and we are now below that. It has definitely slowed down in Canada in the past 10 years as it has in other countries where random breath testing has been implemented.
Given the significant legal, cultural, and educational shifts that have occurred in this area over the past few decades we do not think that other jurisdictions' early experience with random breath testing is a useful comparator for Canada. We are simply not in the same place as those countries.
Second, while there are a few jurisdictions that did implement selective breath testing first, followed by random breath testing, they also introduced a host of other measures to combat impaired driving at the same time. I have some examples. I'll leave them to the question period if you're interested.
But it is extremely difficult to separate the impact of random breath testing from the other initiatives they also implemented. Many of these jurisdictions drastically increased enforcement at exactly the same time as they implemented random breath testing. They also had very large media campaigns, very large education campaigns, and it's simply not possible to tease apart the impact of implementing random breath testing and all of the other considerable efforts that went on at the same time.
As summarized by the Traffic Injury Research Foundation in 2012:
...the available evidence supports both...[selective breath testing]
—which we already have,
—and ...[random breath testing] and suggests that what really matters is the balance between enforcement levels that are sufficiently high and publicity about the enforcement to establish the required general deterrent effect.
As a result of this review, we view the projected impact of random breath testing implementation in Canada as more speculative than certain, and we view some of the papers that we have read championing random breath testing as overly optimistic assessments of what that evidence actually demonstrates.
On the other side of the scale, we're deeply concerned about the additional impact that an additional arbitrary police search power will have on individuals, and in particular those who come from minority communities. The current proposal would not limit this search power to stationary checkpoints, where discretion is curtailed and therefore the risk of racial profiling or other improper exercises of police powers is reduced. Those who are already disproportionately stopped while driving will now not only be pulled over and questioned, but required to exit the vehicle, stand on the side of the roadway or sit in the police cruiser, and provide a breath sample.
I have never been pulled over to have my licence registration or my sobriety checked, and I have actually never gone through a ride checkpoint. I am not the person who experiences this. But for those individuals who are singled out disproportionately and required to submit to a Breathalyser, they will frequently be...experience that is humiliating, degrading, and offensive. This is not necessarily something that is going to be quick and happen within a car.
This factual background, the speculative benefits of random breath testing in Canada with the significant extension of police powers, underlies the constitutional analysis that we provide in our submissions. You recognize that, again, there are very learned written opinions that have suggested that this power be constitutional. We take a different view.
Our own conclusion is that the implementation of random breath testing as currently proposed would raise significant constitutional issues and is likely an unjustifiable violation of section 8, arbitrary search and seizure, and section 9, arbitrary detention, of the charter.
Finally, I'd like to say a few words about some of Bill C-226's statutory presumptions. You will hear, I think, from the Criminal Lawyers' Association about the elimination of the Mohan test for evaluating officers. That is the requirement that they be certified as experts in individual cases. We share those concerns.
We are also very concerned about the evidentiary presumption related to drunk and impaired driving that is in proposed new subsection 320.32(7). Briefly, that new subsection would use consistent results from a drug evaluation officer, the results that are consistent from the DRE evaluation and the bodily fluid analysis, to establish a statutory presumption that this drug was the cause of impairment at the time of driving. Basically it takes the two results from those two tests and says that if they're consistent, we will presume that this person was impaired by this drug at the time of driving.
Both of these testing mechanisms, though, the DRE evaluation as well as the bodily fluids analysis, are flawed in their own ways. In a Canadian study of DRE evaluations, one in five innocent individuals who had not taken any drugs was wrongfully identified as impaired. That's 20% of people who had not taken any drugs.
Saliva and urine samples are also very limited in their utility. Those who have taken drugs many days, weeks, or even months previously will often receive a positive drug test, depending on the type of drug or the specific bodily sample that was run.
Simply put, you cannot take these two pieces of information and combine them to create a presumption in the way that this bill does. It seems to be trying to mirror the breath-testing regime. The science on breath testing is much more reliable, much more certain, and much less varied than the science on drug impairment. We think if you keep these presumptions in, they will lead to wrongful convictions and imperil the presumption of innocence.
Director, Public Safety Program, Canadian Civil Liberties Association
My last sentence is to thank you very much for your time today.
I look forward to your questions and further discussion.
Liberal
The Chair Liberal Rob Oliphant
Thank you. You used up the time that Micheal had left. That's good.
Our third witness is Michael Spratt from the Criminal Lawyers' Association.
Over to you, and thank you.
Michael Spratt Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
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.
Liberal
The Chair Liberal Rob Oliphant
Thank you.
I often say I'm looking forward to the written submissions and I sometimes mean it. I actually am looking forward to your written submissions.
Thank you, all, for your testimony.
Conservative
Larry Miller Conservative Bruce—Grey—Owen Sound, ON
Mr. Chair, could I just ask for consideration by the committee to move to five-minute rounds? We're half over our hour already, so I'll just throw that out.
Liberal
The Chair Liberal Rob Oliphant
I need unanimous consent to move to five-minute rounds.
No. Okay.
Mr. Spengemann.
Liberal
Liberal
Sven Spengemann Liberal Mississauga—Lakeshore, ON
I was just going to say, if I don't take up the full seven minutes, I'm happy to delegate some time to Mr. Mendicino.
I'm going to take you right to the heart of what I think some of the controversy relates to, and that is the issue of random testing.
This bill brings into conflict or into the discussion two very important currents of thought. One is the level of condemnation of drunk driving offences, which is probably akin to other forms of homicide or racially motivated crimes. It's very high in the minds of the public. Then, of course, our civil liberties, procedural rights, and charter rights....
I'm going to put to you the idea that the very concept of randomness is misplaced here because the human mind rarely, if at all, does anything randomly. So, when we talk about randomness, are we talking about randomness from the perspective of the motorist who or may or may not be caught in a traffic stop or from the perspective of the police officer who has, in my view, full discretion under this bill to decide whether to apply the breath test to somebody or not?
It isn't just racial minorities, I would put to you, who are potentially negatively impacted. It could be old people, young people, women, or people driving pickup trucks. There's all sorts of room for discretion on the part of the officer when she decides whether or not to apply the test. The only way to truly randomize that decision is for her to punch the licence plate into a computer, and the computer, on a binary random selection, spits out a yes or a no to apply the breath test.
I think we're outside of the domain of randomness, and I wanted to ask you if you agree with that, and if we are, if that strengthens the argument—presumably, it does—in terms of not following through with this provision. But if we left randomness in, you'll in see in 320.27(3), it is really only the title of that paragraph that says “random testing”.
Would the bill, as it's currently framed, lead to the possibility of a non-randomness defence? In other words, if somebody was pulled over by an officer and then some research reveals that, yes, she does pull over everybody who drives a pickup truck but not anybody else, would that, in your mind, lead to an avenue of criminal defence that really is an unexpected consequence of the bill?
The second question, time permitting, is to take a broader look at the principles that we're expounding here and let us know your views on how they may or may not apply to the question of legalization of marijuana. In terms of resources of committee time, we're working here on a bill that may well be a forerunner to questions that arise on legalization. We want to get it right, if possible, on both fronts, as early as possible.
Liberal
The Chair Liberal Rob Oliphant
So, those are two big questions I think to, ideally, all three of our panellists.
Mr. Spratt first.
Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
Briefly, the proposition that random testing won't really be random is a common-sense proposition that plays out on our streets on a daily basis. To suggest that defences can be raised based on non-randomness because of an officer's history or other evidentiary matters often places a tremendous burden, practically speaking, on indigent and discriminated-against individuals.
So, that's not an answer, and I don't think that it saves the provision. I think the point you make actually points in the opposite direction.
Liberal
Sven Spengemann Liberal Mississauga—Lakeshore, ON
Sorry to interrupt, but what I was getting at is, would it be likely that a non-randomness defence would develop if the bill is enacted in its current form, in terms of judicial resources and, again, the disparities that you point out with respect to socio-economic status and the ability to raise that defence in court? Is it going to result in a bubble of non-randomness claims if it goes forward?
Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
That will be an issue that is raised, but for all intents and purposes it's an issue that will not be raised, and in my opinion it will not be successful. It provides no solace to individuals who will inevitably be targeted due to this provision.