Mr. Speaker, I want to commend the member for Lakeland on this timely initiative.
Speaking as a former prosecutor and also as the director of constitutional law for the province of Manitoba, I have had quite a bit of involvement in terms of the difficulties involved with the prosecution of impaired driving offences. I have worked with the former justice minister in Manitoba, James McCrae, who implemented, as a politician, the first administrative licence suspension program in Canada. Manitoba, indeed, is a leader.
I had the honour to work with the attorney general at that time, as the director of constitutional law, in researching the existing problems with the law, developing a new system, and coming up with a system that has led Canada in terms of reducing the number of drunk drivers, and more importantly, deaths, injury and property damage caused by drunk driving.
One of the difficulties--and why the Government of Manitoba had to use its powers under property and civil rights--was because the federal government was unwilling to move in terms of making meaningful amendments that would stop impaired driving. It was very frustrating.
Speaking as a prosecutor, I recall that one of the most difficult charges to prove was impaired driving. When we look at impaired driving without any blood alcohol testing device, it is very difficult to prove. That is why I have expressed this concern about the decriminalization of marijuana. It will create additional difficulties if that encourages the more widespread use of marijuana.
However, when it comes to per se impairment, that is when someone blows into a breathalyzer machine and it reads over .08, one is presumed to be impaired. The theory was great. The technicalities though, that have developed, have been just astounding.
If we look at the legislation in the Criminal Code and the case law in annotated Criminal Code, perhaps Martin's Annual Criminal Code , there are many precedents cited, all dealing with technical defences on how to avoid convictions under the Criminal Code. It is very frustrating.
As a prosecutor, I would have much rather prosecuted a serious assault. Proving assault causing bodily harm or other serious assaults, indeed, somebody even suggests murder is easier to prove than .08 because of the technical nature of these defences.
Judges have been ingenious in developing ways of avoiding convicting individuals. Some of the ways that have been developed by judges, at the urging of defence counsel, are the two issues that this bill addresses: the Carter defence and the last drink defence.
The Carter defence is basically using expert evidence to rebut the evidence produced by the breathalyzer. The last drink defence is essentially the defence saying that an individual was at a party, quickly chugged three or four drinks and then got in the car and tried to make it home before getting over .08 alcohol absorbed in the blood. This is absolute foolishness and yet judges accept it as a matter of course.
Not only is it foolish, it is dangerous. We have seen these kinds of defences accepted by judges in this country. I do not blame defence counsel for raising these ridiculous arguments because judges apply these defences. If we had judges who would say, as they should, that this is nonsense and just put away these defences, then we would not be worried about the kind of amendments that my colleague from Lakeland, who has been such a strong fighter in this area, has put forward. We would not need these kinds of defences.
Specifically, we addressed these two defences in Manitoba's administrative suspension law. When I drafted that Manitoba legislation, we eliminated these two defences. We said that if the police were to catch people and they blow into that breathalyzer and it shows .08, the defences of when they had their last drink or the expert evidence that could be called to rebut that would simply not be available. The breathalyzer was conclusive evidence that their blood alcohol level at the time of the reading was in fact the level at the time they were stopped while driving.
What that does is put a little bit of fear into people who wonder if they should risk it. They could always chance getting a stupid judge. We should try to eliminate not the Carter defence and the last drink defence, but the defence we are talking about of how many judges buy this nonsense. That is the real defence.
In the Manitoba legislation we simply stated that we did not have any room for stupid defences like these. It was conclusively proven. As a result of that--and I make no apologies about the tough stand that the Conservative government in Manitoba took--we have seen a decrease in death, injuries and property damages.
I can look my constituents in the face and say we have saved lives and we have kept families together. That is what we need to do federally. We need to make it clear that this is a crime. There is nothing funny about drinking and driving, and killing people.
If only we could rely on the common sense of judges to do what is right. To do what is implicit in the legislation, we have to come up with these technical kinds of defences.
The effort by my colleague from Lakeland is an excellent effort. It needs to be done. But the moment we put this in the Criminal Code, I can already see the gears working in the minds of the criminal defence bar, saying “What other stupidity can we come up with that we can actually get a judge to buy?”. It has become quite a challenge. Lawyers would not go to all this trouble and go to all this length if judges did not buy these defences.
I am encouraged by this initiative. I support this initiative fully and I want every member in the House to take this amendment seriously. If we can pass this kind of amendment, it will decrease the ability to get away from one's responsibilities as a licensed driver on the road and increase accountability. It will decrease deaths, injuries and property damage.
