Mr. Speaker, impaired driving charges represent 11% of all Criminal Code charges according to Statistics Canada. Overall the conviction rate for impaired driving charges is 71%. This is the highest conviction rate among all Criminal Code offences. Nevertheless the impaired driving conviction rate has fallen by about 10% over the past 10 to 15 years.
Anecdotally, prosecutors indicate that impaired driving trials take up 30% to 40% of the trial time in provincial judges' courts. Again anecdotally, some observers believe that fewer accused impaired drivers are pleading guilty to their charges because the consequences of a conviction have increased over time.
One example of the increased consequence for convicted impaired drivers is the 1999 amendment by which Parliament increased the Criminal Code's prohibition from driving anywhere in Canada that applies to a convicted impaired driver.
The minimum driving prohibition on a first offence moved from three months to one year. On a second offence it moved from six months to two years. On a subsequent offence it moved from one year to three years. In addition, an offender will face increased costs for facility insurance. There will also be provincial consequences that can include a provincial driving licence suspension, assessment and treatment for alcohol or drug abuse, and installation of an ignition interlock device once a provincial driving licence is reinstated.
Bill C-452 aims to improve the processing of impaired driving trials. This is a very laudable goal and I commend the member for bringing this forward. However I cannot agree with the specifics of the proposed solution in Bill C-452.
The bill goes against the very base and premise of our criminal justice system. The bill would make three notable changes. First, it would require a court to give reasons if “on all the evidence” it “gives preference to the evidence given by the accused”. Second, it would require the accused to provide that the analysis equipment or procedure was faulty if the accused challenged the result of a breath or blood test. Third, Bill C-452 would extend the time period for taking a breath sample as it relates to the prosecution obtaining an evidentiary presumption so that the time period for the presumption would equal the time period that a peace officer has to demand a breath sample.
I will focus my remarks upon the suggestion that reasons must be given if the court gives preference to the evidence of the accused. In a criminal trial it is not the job of a court to pick which side's evidence it prefers overall. The test for a criminal trial is constitutionally entrenched. It is, did the prosecution prove beyond a reasonable doubt all the elements of the offence? This is called burden of proof and it remains with the prosecution at all times and an accused only needs to raise a reasonable doubt in order to be acquitted.
For cases involving a charge of driving with a blood alcohol concentration that is over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood, Bill C-452 would appear to obscure, if not totally revise, the criminal test. Even if the test for criminal cases were not constitutionally entrenched, it would defy logic for Parliament to create a lesser test for the crime of driving with a blood alcohol concentration that is over the legal limit while having a higher test for every other Criminal Code offence.
Society reserves the criminal law for its strongest disapproval of unwanted behaviour. The criminal sanction carries a high stigma and consequences. The prosecution is therefore required to prove its case beyond a reasonable doubt. This implies that there will be some individuals who have actually done the prohibited behaviour but who cannot be convicted because the evidence and proof of the offence simply do not meet the beyond a reasonable doubt standard.
A court may be left with a high degree of suspicion that the accused did the prohibited behaviour, but unless there is proof beyond a reasonable doubt, there can be no conviction. It has been said that the rationale behind the criminal standard is that it is better that 99 people who committed the offence go free than the one innocent person be convicted.
Practically, if Parliament wanted to eliminate the application of the criminal standard of proof, it could eliminate the criminal offence of driving while over the legal limit and leave to the provinces, under highway traffic legislation, the ticketing and fining of persons who are over the legal limit.
My own view is that driving over the legal limit is very appropriately a criminal offence and should stay in the Criminal Code. It should, and it does, attract Criminal Code penalties.
The flip side of this is that the prosecution will have to meet the criminal test, which is proving guilt beyond a reasonable doubt, in order to secure the conviction.
In my view, we have come a long way in Canada from the days when impaired driving was seen as not a real crime. I am happy to see that many people have now altered their behaviour so that they plan to have a designated driver if they drink alcohol away from home. Some people stay over, or they take a cab home, or they limit their drinking, which is not a bad idea.
I would not want to see us going back to the days when some people would think that having one more drink for the road was somehow funny or clever.
I would hope that all members share my view that eliminating the legal limit criminal offence and relying on provinces to create a driving infraction with some lesser standard of proof would not be the way to go.
We need to keep the legal limit offence in the Criminal Code. We need to keep criminal law penalties for driving while over the legal limit. We also need to keep the proof beyond a reasonable doubt standard for all criminal trials.
Impaired driving is a problem that has no magic solution. Education is certainly part of it.
I firmly believe that to the extent that criminal legislation can be sensibly used as one of the measures to combat the problem of impaired driving, it should be used.
However, as I have previously indicated, Bill C-452 has serious flaws. It is not well-conceived as a measure against impaired driving. My view is that it should not be supported by members in this House.
Having said that, I acknowledge this is a serious area in Canada. More people should be very conscious of what happens, and what can happen criminally in a courtroom, when they drink and drive, and not only what happens to their personal safety and the impact on their employment and on their own families.