In response to (a), before 1997, Parliament did not make available to sentencing courts the possibility of a conditional sentence of imprisonment. They first begin to appear in the statistics from the Adult Criminal Court Survey of the Canadian Centre for Justice Statistics in the year 1998-99. Between 1998-99 and 2003-04 there were 38 conditional sentences given in cases of impaired driving causing death and 350 conditional sentences given in cases of impaired driving causing bodily harm.
(i) By province: B.C. death 7, bodily harm 35; Alberta death 7, bodily harm 57; Saskatchewan death 4, bodily harm 22; Ontario death 19, bodily harm 165; Quebec death 0, bodily harm 0; New Brunswick death 1, bodily harm 11; P.E.I. death 0, bodily harm 0; Nova Scotia death 0, bodily harm 5; Newfoundland and Labrador death 0, bodily harm 29; Yukon death 0, bodily harm 4; and Northwest Territories death 0, bodily harm 0.
(ii) By age of person conditionally sentenced: 18 to 24: death 13, bodily harm 110; 25 to 34: death 10, bodily harm 102; 35 to 44: death 6, bodily harm 78; 45 to 54: death 6, bodily harm 38; 55 plus: death 2, bodily harm 17; age unknown: death 1, bodily harm 5.
(iii) By gender: male: death 33, bodily harm 287; female: death 3, bodily harm 18; sex unknown: death 2, bodily harm 0.
(iv) By year:
1998-99—death 3, bodily harm 22
1999-2000—death 3, bodily harm 42
2000-01—death 5, bodily harm 38
2001-02—death 4, bodily harm 80
2002-03—death 12, bodily harm 78
2003-04—death 11, bodily harm 90
Justice Canada Research Section, with the cooperation of the Canadian Centre for Justice Statistics, was able to provide the above information. The raw data exists with the Adult Criminal Court Survey but a special run was required to obtain the data on conditional sentences for impaired driving serious cases. Statistical data for the year 2004-05 is not yet available. Up to 2000-01, the survey covered about 80% of the national caseload. Not included were: B.C., New Brunswick, Manitoba and Nunavut. Starting from 2001-02, the survey covers about 90% of the national caseload. Still not included are Manitoba and Nunavut. Also, data for Quebec represent 80% of the Quebec caseload and data for B.C .represent 95% of the BC caseload.
In response to (b), in January 2005 the Department of Justice sponsored a roundtable of key stakeholders to consider the issue of lowering the legal limit to 50 milligrams per cent of alcohol. There was agreement that this level represents an increased risk of crash. However, that risk is significantly lower than the risk at the current Criminal Code legal limit, which is 80 milligrams per cent. There was disagreement on the instrument that should be used to address the collision risk at the 50 milligrams per cent level with some advocating the use of Criminal Code provisions and others advocating the use of provincial traffic laws.
The Minister of Justice indicated in a meeting with representatives of Mothers Against Drunk Driving held on May 2, 2005 that he had not taken a fixed view on the question of lowering the Criminal Code legal limit from “exceeds 80 milligrams of alcohol” to “exceeds 50 milligrams of alcohol”. He is willing to consider the views of those on both sides of this question. It is noted that all provinces, except Quebec, using their constitutional authority for licensing and highway safety, already have short provincial driving license suspensions imposed at the roadside, typically for those who exceed a provincially established limit of 50 milligrams. There is divided opinion on whether lowering the Criminal Code legal limit would reduce significantly alcohol involved fatality rates. There is concern from law enforcement and prosecutors that resources could be thinly stretched if a new cohort of drinking drivers, 51 to 80 milligrams of alcohol, is addressed by the Criminal Code. Others believe that resources required for criminal law enforcement against a new cohort of cases in the 51 to 80 milligrams range would be offset to some degree by some persons in the group of drinking drivers who otherwise would have been “in excess of 80” lowering their consumption as a result of a new legal limit and others who would have been in the 50 to 81 range also lowering their consumption.
In response to (c), The Criminal Code in section 490.1(1) already permits a court to order forfeiture of property used in an indictable offence. This section has been used in an impaired driving case in New Brunswick, R. v. Waite (2004) N.B.J. No. 455; NBPC 29. For impaired driving causing death and impaired driving causing bodily harm, the prosecution must proceed by indictment. For impaired driving, for driving “in excess of 80 milligrams of alcohol”, and for refusing to provide breath samples, the prosecution may proceed either by indictment or by summary conviction. There is no present plan to expand the forfeiture provision to include cases where the prosecution has chosen to proceed by summary conviction procedure. Nor is there any present plan to introduce amendments that would force police, as a Criminal Code measure, to impound the vehicle of a suspected impaired driver. Some provinces have chosen to use their constitutional head of legislative authority for “property and civil rights within the province” to enact vehicle impoundment legislation.