Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 10 - Evidence, March 1, 2000
OTTAWA, Wednesday, March 1, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-202, to amend the Criminal Code (flight), met this day at 3:53 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: We have before us this afternoon representatives of the Canadian Police Association, as well as representatives of the Fédération des policiers et policières du Québec. We have received your printed briefs and also the letters that Mr. Prud'homme forwarded to us from cities throughout the province of Quebec in support of Bill C-202. We have letters from Sherbrooke, Trois-Rivières-Ouest, Shawinigan-Sud, Shawinigan, Bromont, Baie-Comeau, Trois-Rivières, Cap-de-la-Madeleine, Saint-Hyacinthe, and the Municipality of Pointe-du-Lac.
I should point out that we have with us in the audience, but not as a witness today, the sister of Richard McDonald, a police officer from Sudbury who was recently killed in a police chase.
Mr. David Griffin, Executive Officer, Canadian Police Association: Today I will open with a few remarks and then Mr. Prud'homme will speak. Following that we would welcome the opportunity to discuss any questions that the committee may have. We have reviewed the transcripts from previous meetings and are equipped to address some of the issues raised in previous meetings. We hope that we can provide any assistance required by the committee in reviewing this bill.
We have provided a brief from the Canadian Police Association and I must apologize. We have just realized that we have an incorrect version of the bill at tab 1. However, you will find at the other tabs some information that we think may be of assistance to the committee in understanding some of the issues regarding police pursuits and the practices in other jurisdictions in Canada.
The Chairman: We have copies of the correct bill.
Mr. Griffin: Yes, I understand. The Canadian Police Association represents front-line police officers from across Canada. In addition, we have membership from all 10 provinces, the RCMP, the CN Railway Police and Canadian Pacific Railway Police. We welcome the opportunity to appear before the committee in support of Bill C-202. We believe that we can make an important contribution to your discussions concerning this issue and other issues of justice reform by bringing forward the views and concerns of front-line police officers. As professionals who dedicate their lives to community safety and reduction of crime, our members are acutely aware of risks presented to the public and police when an operator of a motor vehicle seeks to avoid apprehension by failing to stop for a police officer.
We take pursuit situations very seriously. The July 1999 death of our colleague, Sudbury Regional Police Sergeant Richard McDonald, is a poignant reminder of the human costs of such reckless and irreversible behaviour and reinforces the need to impose greater consequences for drivers who choose to place the lives of themselves and others at risk by fleeing a police officer.
Constable Richard Sonnenberg of Calgary died under similar circumstances in 1993 and Constable Dominique Courchesne of Joliette, Quebec died under similar circumstances in 1998. They are not the only police officers to have been killed during police pursuits but just the most recent examples.
As indicated by the Chair, Rick's sister, Marlene Viau, is here with us today to convey her family's support for this bill. Marlene, Rick's wife Corinne Fewster-McDonald, and the McDonald family hope that we can learn from this tragedy, and they are working with police officers, members of Parliament and like-minded citizens to examine ways to avoid future tragedies.
Marlene wants to give her brother a voice. As the president of the Sudbury Regional Police Association, Rick travelled to Ottawa eight months before his death to lobby government concerning this very bill. Rick believed that this bill could save lives. Marlene is here today to carry Rick's torch.
However, it is not just police officers who are placed at risk in pursuit situations. According to a recent report by the Ontario Ministry of the Solicitor General and Correctional Services, more than one quarter of pursuits result in damage, injury or fatality. Nearly half of all pursuits, approximately 43 per cent, result in one or more incidents of damage, injury or fatality. Approximately 9 per cent of pursuits result in injury to occupants of a pursued vehicle, 5 per cent result in injury to a police officer, 1.5 per cent result in injury to third parties and, fortunately, less than one half of 1 per cent result in death. Those statistics relate to real human costs. Thirty-three people were killed in Ontario from 1991 to 1997, and 2,415 were injured. That is just in Ontario.
Among other things, police officers are required in law to investigate crime, enforce rules of the road, apprehend offenders, and cause charges to be laid and presented to the Crown for prosecution. In the course of those duties, police officers are expected to stop motorists for a variety of reasons, including traffic violations and criminal code offences. Persons who have committed a criminal offence, such as robbery, break and enter, theft or drug offences, will often use a motor vehicle as their means of transportation or flight from a crime scene. Police officers are trained to exercise caution when stopping any motor vehicles because otherwise routine traffic violations may be a symptom of a much more serious incident.
When the operator of a motor vehicle fails to stop the vehicle when signalled and chooses to flee from the police, the situation presents inordinate risks to the public, the police officer and the occupants of the pursued vehicle. Virtually all Canadian police services and provincial agencies have established policies to govern the factors to be considered by a police officer before initiating or continuing a pursuit. Typical factors to be assessed by a police officer include the following: the seriousness of the offence; the weather and road conditions; the area travelled and the presence of other motorists or pedestrians; the risks to public safety versus the need to apprehend the offender; the apparent age of the driver; and the manner in which the vehicle is being operated. A split-second decision of a police officer in these circumstances will often be the subject of intense scrutiny and can result in disciplinary or criminal consequences.
In 1997, 30 per cent of Ontario pursuits were called off by a police officer or supervisor based upon those criteria. For example, if the driver of the vehicle has been identified and can be apprehended at a later time without presenting a risk to the public, a decision may be made to discontinue that pursuit. Unfortunately, the conduct giving rise to police intervention is not always de-escalated by police discontinuing a pursuit. It is not uncommon for the reckless driving to continue, even after the police have disengaged, with tragic consequences for the offender or innocent third parties.
We submit that policies that bar police pursuits are flawed for this very reason. Having the knowledge that police will not pursue a reckless driver will cause more people to step on the gas pedal as opposed to the brake pedal when police are trying to stop them. We suggest that when offenders perceive that the police are less likely to give chase, the more likely it is that an offender will attempt to avoid apprehension.
Unfortunately, the Criminal Code of Canada does not presently provide sanctions for the operator of a motor vehicle who chooses to engage the police in a pursuit. Current dangerous driving provisions of the Criminal Code do not provide an adequate sanction for such reckless conduct, and criminal records resulting from these convictions do not distinguish the specific nature of this offence. They do not set out in the record for future occurrences that the offender was in fact trying to evade the police.
We submit that the appropriate legislative response is to support the measured response of Canada's police officers by introducing significant consequences for those offenders who attempt to flee police in a motor vehicle. The Canadian Police Association supports the measures proposed under Bill C-202. The introduction of meaningful criminal consequences combined with strategic measures adopted by local police authorities and police services will provide a balanced, measured response to this significant public safety concern.
I will now turn it over to my colleague, Mr. Prud'homme.
[Translation]
Mr. Yves Prud'homme, President, Fédération des policiers et policières du Québec: I would first like to thank the Committee for giving us this opportunity to discuss a bill that the Canadian Association and the Fédération des policiers et policières municipaux have undertaken to defend on behalf of their members.
The Fédération des policiers et des policières municipaux du Québec represents virtually all the men and women who have decided to work to ensure the safety of their fellow citizens, specifically 8,000 police officers, including 4,100 officers in the Montreal Urban Community.
For some time now, the Federation has been under pressure from its members to protest against the current legislation's lax approach to drivers who refuse to obey a police officer when told to stop. We believe that fleeing the police is a criminal act, particularly when you examine the consequences of such acts, which result in a loss of human life and considerable damage to property. Such incidents endanger the safety of both the public and our members. Yet someone who decides to flee the police risks nothing from a criminal standpoint as the situation now stands. I would refer you to our brief with respect to paragraph 249(1) of the Criminal Code which reads as follows:
249(1) Every one commits an offence who operates:
a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;
Clearly, the conditions under which this provision applies are very restrictive in terms of the charge itself. We believe that this provision contains many loopholes. Furthermore, it does not address the pressing need to sanction the totally unacceptable conduct of a driver who may ultimately be responsible for the death of an innocent person with no involvement in the event itself.
Adding such an offence to the Criminal Code would send a clear message to the people living on the fringes of society. We are convinced that passing Bill C-202 would have a deterrent effect on such individuals, who are flouting our laws and regulations.
It is important to realize that these rules and regulations are essential tools that allow police officers to do their job properly. Where there are gaps, it becomes far more difficult for them to ensure public safety.
The penalties associated with the issuance of driver's licences are certainly not adequate at this time. The Criminal Code and the Highway Traffic Regulations do not come down hard enough on these offenders. We sometimes have the feeling that there is more of a focus on limiting the powers of police officers. But you must understand our position. We believe that not enough is being done to limit the actions of people who commit these criminal acts, and who now have things easy.
In 1998, in the MUC alone, there were 81 high-speed police chases. That figure does not include high-speed chases that were terminated because we were unable to arrest the fleeing drivers. But in the MUC alone, 4,100 police officers were involved in 81 high-speed chases in a large urban community such as the MUC.
[English]
The Chairman: Is it 1991 or 1981?
Mr. Prud'homme: 1981.
The Chairman: In the last year?
Ms Christine Beaulieu, Coordinator of Communications, Fédération des policiers et policières du Québec: 1998.
[Translation]
Mr. Prud'homme: In 1998. The MUC represents 47 per cent of municipal police officers operating in Quebec. You may recall, and Mr. Griffin referred to this, that in Joliette, a police officer by the name of Dominique Courchesne was killed in July of 1998 as he was pulling up a spike strip to end the pursuit. In an unfortunate twist of fate, an SQ patrol car hit him and killed him. And yet the fleeing driver who initiated the pursuit was not charged with anything under the Criminal Code, even though he triggered the entire event. Such is the current Criminal Code.
During the summer, in Trois-Rivières-Ouest, a Mr. Bois fled the scene with a patrol car. He caused the death of two innocent bystanders who weren't in any way involved in the event. He drove onto Highway 40 in the wrong direction. These are all recent events in Quebec. They have resulted in a number of municipalities making representations to the Quebec Union of Municipalities to have them pass resolutions in support of the representations being made by the Fédération des policiers et policières municipaux du Québec and the CPA to the government on Bill C-202.
The Federation is asking the Senate to amend the Criminal Code along the lines proposed in Bill C-202 in order to make criminal behaviour that currently goes unpunished a criminal offence, so that we can in fact ensure the safety of all Canadians, including our brothers and sisters who are directly involved in these events.
Senator Beaudoin: You say that the existing legislation is not targeted enough. So this bill fills a vacuum.
Mr. Prud'homme: Exactly.
Senator Beaudoin: If someone does not obey a police order and flees, there is nothing you can do because Section 241.(1) is very general. There are far more motor vehicles in use than there are trains, and the time has come to fill that vacuum.
I agree with the principle behind this bill. There were some questions about the sentencing issue, but it seems to me the judge could base his sentence on the specific circumstances. He has a great deal of latitude, so that penalties and sentences are not automatic. I'm thinking of paragraphs (3) and (4), where we find the terms: dangerous driving, bodily harm; dangerous driving, death. It does go up to fourteen years. Based on your experience, is that adequate?
Mr. Prud'homme: I would just like a clarification about your question. Are you asking me to comment on the bill or on the current provisions?
Senator Beaudoin: I would like to know what currently exists, and how this bill would improve things.
Mr. Prud'homme: As far as sentencing is concerned, the Senator is absolutely correct; the judge always has some latitude. Yet by adding the clauses proposed in Bill C-202, you have the added element of access to parole, which we see as an important element. Let's take the example I mentioned earlier in Trois-Rivières-Ouest where the individual fled with the patrol car, driving in the opposite direction, and refused to obey the order of the police officer on site. When he was convicted, because he was found guilty, he was charged with dangerous driving, car theft, and so on. Had Bill C-202 been in place, an additional charge could have been laid against this individual for refusing to obey an order from a peace officer, with the sanctions set out in the bill.
At the present time, when a policeman tries to intercept someone driving a stolen vehicle, that person can be charged with dangerous driving, as provided under Section 249 of the Criminal Code, which is very vague, very broad and includes what we see as a great many loopholes, as well as under the Highway Traffic Act, which provides for the issuance of fines. But none of that appears in an individual's file, so that if we do manage to catch the individual and arrest him, no mention is made of the circumstances under which he or she was arrested. Refusal to obey an order is never recorded in the file of either a repeat offender or any other person arrested under similar circumstances.
We believe that making this a totally separate offence will send a clear message and fill the vacuum that currently exists in Section 249. I should also point out that as far back as we can remember, the maximum fourteen-year sentence has never been given by any judge on a charge of dangerous driving.
Senator Beaudoin: And how many such cases arise every year, for example in Quebec or Ontario?
Mr. Prud'homme: It has been very difficult to get that information, for one simple reason: refusing to obey an order is not a criminal offence. As a result, we don't have any statistics on such occurrences. Furthermore, it is one thing when we actually manage to arrest the fleeing driver, but so many more of them -- 30 per cent and up -- are able to escape for a variety of reasons.
Police departments follow very strict procedures in this area. Depending on the circumstances, a policeman may have to terminate the police chase, with the result that quite a few such cases -- about 30 per cent -- are never recorded because the fleeing drivers are never arrested. I represent some 130 police organizations in Quebec, in addition to the MUC, and figures like these are hard to find because to begin with, it is not now considered to be a criminal offence.
I even did some checking with the Sûreté du Québec, and I can tell you that on the very same weekend that the events in Trois-Rivières-Ouest occurred, two other chases took place in Laval involving Sûreté du Québec and Laval police force officers.
We have not even been able to get some figures from the Sûreté du Québec. I believe Mr. Griffin has managed to compile some for the rest of Canada, but for the MUC per se, the figure is 81.
[English]
Mr. Griffin: At tab 5 of our brief, we have provided a copy of the report prepared by the Ontario Ministry of the Solicitor General. In Ontario they did require, and have required for a number of years, that the police forces submit a report dealing with every pursuit. As a result, they have been able to compile statistics since 1991. You will see they have looked at the numbers in a variety of ways; the report talks about the type of incident, the age of the driver, and the type of offences that the drivers were fleeing from. These statistics point to some fairly basic conclusions, which I discussed in my opening remarks.
With respect to sentencing, I should like to emphasize a couple of points. I know some members of the committee have had apprehensions about the level of this life sentence and also the issue of the 14 years. One point is that I think, for this crime, the penalty must be as severe as or perhaps even more severe than what the person is trying to run away from. Take for example the case of someone who strikes a child, leaves the child for dead and then tries to avoid apprehension and takes off. You would expect that there would be a consequence for not stopping and then for taking off if a police officer took pursuit, because that driver is trying to avoid something very serious.
My second point is that there is no minimum penalty here. For example, criminal negligence causing death also carries a life sentence, but if the offender uses a firearm in commission of that offence, there is a four-year minimum sentence. We submit that the use of a motor vehicle can often be as lethal as the use of a firearm. We submit that there have been circumstances in which we would like to have seen a minimum, but we feel that the bill is balanced.
The essential elements of the offence are such that it captures a whole range of situations, from a young offender who takes off from the police and within a very short distance is stopped, to someone who can lead the police, as in the case of Constable McDonald, on a chase of 32 kilometres. Constable McDonald was trying to lay a spike belt to stop the chase when the vehicle struck him. There is one extreme to another.
We think that the range is necessary. We think that the life sentence sends an important message. The life sentence does not mean that persons will be imprisoned for life, but it means that they will not be eligible for parole for seven years and, after seven years, they are essentially paroled for life. If they repeat that type of behaviour in the future, it is much easier for police to hold them to a higher standard than someone who is not on parole.
Senator Fraser: I am fascinated by these statistics, which we had hoped to get.
[Translation]
Mr. Prud'homme, with respect to the 81 MUC cases, have you collected any information about the nature of the crimes committed by the individuals who were pursued by police? Is the situation pretty well the same in Montreal as it is in Ontario?
Mr. Prud'homme: Within the MUC area, a few people were injured in 1998, and there was a lot of damage, but there were no deaths.
Senator Fraser: But do you have any indication of the age of the individuals who were driving the vehicles being chased by police?
Mr. Prud'homme: No. Most of the fleeing drivers had violated the Highway Traffic Regulations and were in possession of a stolen vehicle. We make the decision to intercept a vehicle when there is a violation of the Highway Traffic Regulations, and the vehicles were all stolen.
Senator Fraser: All of them. That is very interesting.
[English]
I have been trying to figure out the philosophical underpins of this bill, although the word "philosophical" is probably too great. There seem to be two. One is that it would, we think, enable police to avoid some high-speed chases. However, if the majority of the cases involve people driving stolen cars, then you cannot identify them. That is to say, you will not avoid many high-speed chases if you are dealing mostly with stolen cars; is that right?
Mr. Griffin: That varies. Certainly, there are statistics. We have tried to overload you with information.
Senator Fraser: Yes; I just started to look at it.
Mr. Griffin: I would point you to tab 5, pages 7 and 8. There are two charts that put it in context. The first lists the types of offences people are fleeing -- that is, where drivers commit a most serious offence that gives rise to a pursuit.The second chart outlines the characteristics of the driver. Certainly, there is a concern not only with police pursuits, but with youth involved in driving accidents in general.
On page 8, the statistics show that young offenders commit only 20 per cent of the pursuits, but they are involved in accidents in 30 per cent of the incidents where there is injury or death. It demonstrates, as you will find in other reports on impaired driving and other traffic fatalities, that inexperienced drivers are a problem. If the police officers can identify the driver, they are more likely to stop the pursuit. If the police officers are aware that the driver is a young offender and the reason they are trying to stop the vehicle is not serious, then they will stop the pursuit. However, we cannot say, in every situation, that this will eliminate police pursuits. Once you have decided to disengage, it makes it easier to charge the offender if you can identify that offender later. If you find the vehicle abandoned and have fingerprints, then you can charge the driver at a later date.
Senator Fraser: I am talking in terms of the likely response of a police officer who sees someone run out of a bank, leap in a car and drive off fast. If you know, statistically, that that person is probably driving a stolen car, then you cannot just take the licence number; you will probably go after that person.
Mr. Griffin: That is right.
Senator Fraser: Prevention, then, will not be a big portion of this bill, because, as my colleague Senator Andreychuk pointed out at our last committee hearing, the very young tend not to think in terms of consequences. They just panic and go. The main purpose from your point of view, then, becomes punishment.
Mr. Griffin: Is not necessarily punishing offenders but demonstrating that there are meaningful consequences for their conduct. Certainly, there is the issue of deterring a repeat offence if a person is stopped, arrested, charged, convicted and sentenced. There is the aspect of deterrence not only to that individual but also to their peers by sending a message that this is serious business.
Recently, I read a report that was prepared by Mothers Against Drunk Driving in conjunction with a traffic injury research foundation. They stated that over one third of all teenage deaths are caused by traffic accidents. While only 4 per cent of teenaged drivers are found to be drinking, 40 per cent of the drivers that are killed in accidents have been drinking. Again, this goes back to this issue that while there is a small percentage of incidents, because they are either inexperienced or bad drivers, teenagers are at a much higher risk.
I would agree that education is a big part of this. Mothers Against Drunk Driving advocates raising the minimum drinking age, going to graduated licensing systems, extending the learner's permit for drivers for a longer period of time, restricting the periods when they can drive unsupervised so that they cannot drive in the evening, instituting a zero tolerance policy against drinking, placing limits on the number of passengers, introducing higher testing requirements, providing better driver education programs, and offering better education about alcohol and drugs. Those are all things we support. They involve mass communication, public communication and advertising that will reach a significant number of individuals.
If every driver education program stated, "If you flee from the police, there are serious consequences," that would be a positive step. There will always be that small percentage of drivers who do not heed those warnings. What frustrates the police in these situations is that the risk that they present to our members, to members of the public and to themselves is grave. Yet right now there is not much in the way of consequences to respond to that behaviour.
The Chairman: I would remind our guests that Senate committees are different from House of Commons committees. You do not have to address your remarks through the chair of the committee. You can speak directly to any senator.
Senator Andreychuk: You said only 4 per cent were found to have consumed alcohol.
Mr. Griffin: Yes. In random roadside tests, 4 per cent of teenage drivers had been drinking, whereas 40 per cent of drivers 45 years old and older had been drinking. Relative to the rest of the population, the incidence of drinking and driving for teenagers is low.
Senator Andreychuk: What about drugs? Alcohol is not the teenage problem that drugs are in certain areas.
Mr. Griffin: Drugs are certainly a concern. We are advocating better screening methods to test drivers for drugs. Short of a blood sample, it is very difficult for a police officer to ask for a drug test.
The Chairman: I want to make sure I have that correct. You said that 4 per cent of teenagers stopped have been drinking and 45 per cent of people in the 45-plus age bracket have been drinking?
Mr. Griffin: I typed this out so that I would not get it wrong, but I did. One third of all teenage deaths are caused by road crashes; 400 teenagers are killed every year in vehicle accidents; and teenage drivers have the lowest incidence of alcohol consumption by age group -- and, it is less than 4 per cent -- compared to 25 per cent of adults in the category of age 46 to 55. That is the good news. The bad news is that 40 per cent of the teenage drivers killed in accidents have been drinking, and 30 per cent of the teenage drivers killed in accidents have blood alcohol levels that exceed the legal limit.
The Chairman: They do not know the responses, in other words.
Senator Poy: Mr. Griffin, you were talking about young offenders and teenagers, and you also mentioned earlier that if the police officer can identify the driver, he would stop the pursuit. Therefore, this bill really does not cover young offenders, am I correct? The police feel that there is no point in pursuing.
Mr. Griffin: It does cover young offenders. For every offence against the Criminal Code, a young offender can be charged under the Young Offenders Act. The question of the penalties arises.
The penalties are different for young offenders who are convicted of an offence. They could be convicted of this offence, but the penalties would be different. For example, the maximum penalty for causing bodily harm may be only three years. For a young offender charged with causing the death of another person, where life imprisonment is a maximum, the judge can decide that that young offender will only serve between 5 years and 10 years, without parole for first degree murder. There are variances, but they can still be convicted of an offence under this bill when it is enacted.
Senator Poy: What I do not understand is that you mentioned that if the police officers can identify that the driver is a young person, they will stop pursuing. Why? That person can still be charged.
Mr. Griffin: In my presentation I listed the criteria that officers must consider when they are initiating a pursuit. Do they know who the person is? If they know who the person is, and if by stopping the pursuit they are not leaving a situation of risk, then the best advice to those officers is to stop that pursuit.
If the offender is a young offender and there is a risk that he or she is going to commit another crime or perhaps has kidnapped someone, they will not necessarily stop the pursuit, but that is a factor the officers must consider. I submit that if it is a young driver and they know who the driver is and there is no risk to the public by stopping the pursuit, then the police officer will stop that pursuit.
Senator Poy: How would a police officer be able to make that judgment instantly, unless there is a call through to him that there is a robbery or a killing or anything? How does he make that immediate judgment?
Mr. Griffin: That is the difficulty the police officer faces. We argue that a police officer has seconds, fractions of a second, to make that decision. An inquest or a court may decide later after years of review that the officer made the wrong decision.
I have been in police pursuits; I am sure Mr. Prud'homme has been in police pursuits. It is a scary situation. You are praying to God that that person is going to stop that vehicle or not going to kill someone. If the officers involved can find a way to resolve the situation and put an end to that risk, they are going to do that.
Senator Poy: For those who have committed crimes and are fleeing the police, this bill is not going to stop them; they are still going to do the same thing, right? If they have robbed a bank, they are going to run. They are not going to stop just because of this bill. What would really be the target of this bill? It is not the real criminals to whom we are sending the message.
[Translation]
Mr. Prud'homme: That is the message we are sending to all those individuals who don't comply with our laws and regulations. Of course, when we conduct an investigation, we generally end up finding the individual who triggered the pursuit. In the Trois-Rivières-Ouest incident, when we arrested Sylvain Bois, had the provisions of Bill C-202 already been in place, he would have been charged with a separate criminal offence. We see this as a way of sending a clear message to people who are flouting our laws and regulations.
We cannot tell you there will never be another high-speed chase. Unfortunately, there will always be offenders in our society. However, if we have an opportunity to charge the people we manage to arrest with a separate criminal offence, whatever the circumstances, this might prompt people who might otherwise be tempted not to comply with a police officer's order to think twice before ignoring it. That is what is important.
Five years ago, a police chase along Saint-Joseph and Delorimier Streets in Montreal ended in the death of a Quebec athlete. Even though the two MUC police officers involved had good reason to do what they did, the media accused them of playing cops and robbers.
The police are receiving conflicting messages. What are they supposed to do about a fleeing criminal who has just committed robbery or is holding a hostage, and worse still, driving a stolen vehicle? Within the MUC area, for example, policemen on the road are supervised by a sergeant who can communicate with them at any time and direct them to stop the chase if he believes that is necessary to avoid endangering public safety. But under the uniforms are ordinary human beings, who sometimes make mistakes, and depending on the circumstances, you can imagine the kind of things that happen.
I brought with me our police department procedure, which sets out very strict parameters for patrol officers. The first step is to try and deter the driver from going any further. If the officer realizes, as he tries to pass a vehicle, that a teenager or minor is behind the wheel of the stolen car, and has just gone through a red light, he starts to try and pull him over. He may decide not to give him chase. Police chases are not an automatic thing; they depend on many different factors.
But if we send a clear message to the public that a youth who has stolen a car will be charged, not only with car theft and possibly something else, but with another criminal offence, and that he may also be charged for refusing to obey a peace officer's order to stop, maybe people will think twice about doing this kind of thing and there will be fewer police chases. That is what we believe.
When a policeman initiates the chase, he may arrest the fleeing driver, or he may decide not to give him chase. The information will go out on the telecommunications network and via radio, and other officers may try to intercept him using a different method, depending on the context.
[English]
Senator Pearson: It is helpful for us to have what you might call practitioners appear before us. We can ask you questions that we might not be able to ask of officials.
I am interested in the response to the last question. It seems to me there is value in having the criminal charge there because even though the person committed a criminal act and ran away from it, it might be easier to make the other charge stick. That is because it will be clearer that the offender ran away from a policeman. Thus, it has a value of that sort.
Do you have any experience with people in boats trying to run away? How valuable do you consider the use of helicopters in that regard?
Mr. Griffin: I do not believe the bill covers boats.
Senator Pearson: Yes, it does.
Mr. Griffin: I know there was some discussion about it in one of your previous sessions. I think the offence is set out under clause 1, proposed subsection 249.1(1), which concerns motor vehicles. There is a reference in the bill to subsection 259(2) of the act, which talks about vessels, rail cars and everything else. That allows this to be an included offence under criminal negligence, dangerous driving, manslaughter and those types of offences. That does not mean that an offender can be charged with this offence for operating a vessel, which in your example is a boat. I do not believe "motor vehicle" covers boats.
The Chairman: The definition of motor vehicle in the Criminal Code refers to a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment. Thus, "motor vehicle" must include boats.
Senator Pearson: Have you had any experience in this regard?
Mr. Griffin: I know it was discussed. Unlike pursuits on public roads, it is not as frequent an occurrence. People in boats generally have a bit more room to manoeuvre than people in motor vehicles on a two-lane highway, for example. Thus, it was not a priority for us. Perhaps down the road we will come back to it.
As far as helicopters are concerned, we support their use. In Calgary, after Constable Richard Sonnenberg was killed in an attempt to put down a spike belt, his family was involved in a fundraising campaign. As a result, the private citizens of Calgary bought a helicopter for the police service. The difficulty is that most jurisdictions cannot afford helicopters. It is not just a question of the cost of buying the equipment but the cost of staffing the helicopter, fuelling it and keeping it in the air. In the large urban centres like Montreal, Toronto, Vancouver, the possibility exists. A proportion of these offences happens outside major centres where a helicopter would not be a realistic solution. We support wholeheartedly the use of helicopters, as well as the use of other technology.
The Chairman: In Calgary there are back lanes and helicopters can prowl up and down the back lanes behind the houses.
[Translation]
Mr. Prud'homme: Our target throughout this process has been motor vehicles, including automobiles, and so on. The definition of motor vehicle, with the exception of railway equipment, is a vehicle that is driven, powered or propelled in some way. Isn't a boat propelled? I'm neither a lawyer nor a lawmaker. But our representations were aimed at motor vehicles, such as cars, motorcycles, and so on.
Would this apply to the use of boat patrols in the MUC area, for example? As far as using helicopters is concerned, we're obviously not opposed. It's an additional means for us. Not that long ago, the MUC police rented a helicopter and that set off a wave of protests from residents of Montreal, because it made a lot of noise at certain times of the day. That is certainly a good idea, but it does not make Bill C-202 any less relevant, because it is the message we are delivering with this bill that is so important in our view. With a helicopter guiding our officers on the ground, we are able to arrest someone. And in addition to having to answer a charge of robbery, possession of stolen goods, or whatever, that individual would be charged with refusing to obey the order of a peace officer.
We believe in access to parole: that is important. And this charge would appear in the file of individuals living on the fringes of society. All of those things will be a plus for public safety.
Senator Joyal: As regards the deterrent value of the bill, logically, if we want to effectively educate the public, when an individual takes his driver's test, should that test not include a section where the applicant has to answer questions about criminal offences associated with driving an automobile?
We place a lot of emphasis on the Highway Traffic Regulations. An applicant is given a copy of the regulations and asked to read them. There is a written test and a mark is given based on the number of correct or incorrect answers. What I'm wondering is whether the written test should not include a section where the applicant is required to answer questions about criminal offences associated with driving an automobile? Someone who gives the wrong answers to questions about the Criminal Code poses a far greater immediate danger, in my view, than does someone who is unfamiliar with the Highway Traffic Regulations. Deterrence must have some spinoff effect. We have to ensure that people who are given a driver's licence are well informed of their specific obligations and responsibilities in relation to the criminal law. If an applicant cannot demonstrate adequate knowledge or awareness of that information, I see that as a good reason to refuse to issue him a licence. A licence is a privilege that can be taken away under certain circumstances. We should be assessing applicants' knowledge on the basis that this bill must act as a deterrent. If that is the case, we have to ensure that people are aware of its provisions. Everybody does not read the Criminal Code. How can we give full effect to this bill without ensuring that applicants are made aware of these provisions and that their knowledge of them is tested? I see that as an essential component of this bill.
Mr. Prud'homme: I fully support what you are suggesting. We are such strong believers in prevention that the Fédération des policiers et des policières municipaux appeared before the Quebec Parliamentary Committee during consultations on road safety. We suggested that the Minister of Transportation and the Committee hear from various stakeholders and put in place a year-long "Operation Go Home" program. We have seen a significant drop in cases of impaired driving since we strengthened the penalties and put in place incentive and prevention programs.
We question applicants about the Highway Traffic Regulations but we totally neglect the issues associated with drivers who flee. Police officers sometimes have trouble understanding the messages that the politicians seem to be sending the public. At one time in Quebec, a youth had to take a driving course in order to get a licence. I have a hard time understanding why that regulation was repealed barely two years ago. We have to lobby our representatives in Quebec City. We could include the questionnaire, to make it clear to people that a driver's licence is a privilege in our society, the same way possession of a firearm is. There are certain requirements that must be met, and if you don't meet them, the privilege is withdrawn.
[English]
The Chairman: Mr. Prud'homme, did I understand you to say that in Quebec you no longer have to take a test to get a driver's licence?
Senator Joyal: You do not have to take a course.
Senator Fraser: You have to take practical lessons before you get your learner's permit. You have to pass a theory test based on a very complete book, but it does not include a section on criminal offences.
The Chairman: This may be something that we should bring up with the officials and that I should personally bring up with the Minister of Justice. She can take it up with her provincial counterparts. It is an excellent suggestion.
Senator Poy: I think this is a very important bill. I need to understand the situation at the present time, without Bill C-202. If a hardcore criminal, like a bank robber, is fleeing the police and is caught, he or she will be charged with bank robbery. What other charges would that person face, without Bill C-202? Would he face a dangerous driving charge?
Mr. Griffin: That would depend on the police decision, based on the evidence of the particular driving. The committee discussed the example previously of the driver who drives at 100 miles per hour but perfectly straight, does not miss any turns, signals every lane change and stops for a light. Is that dangerous driving or is it merely speeding? It depends on the circumstances. Another excellent example is when the driver does not directly cause the death of another person but indirectly causes death. Would that act be captured under the charges available at the present time?
If the bank robber killed two people before he left the bank, someone could argue that he is already subject to life imprisonment; why slap on all these other offences? The difficulty for victims and for police officers is this question: Once you have killed one person, do you then have a licence to continue killing?
The vast majority of these offences are not committed by bank robbers or hardened criminals but by people who exercise bad judgment. We certainly agree that education is a very positive step in encouraging people to make the right decisions, but those who do not should still have to face some consequences.
Senator Poy: Am I correct that, under this bill, the person charged with fleeing would face a heavier sentence? Fleeing the police is an additional offence, a new offence; is that right?
Mr. Griffin: That is right.
[Translation]
Mr. Prud'homme: Under the terms of Bill C-202, dangerous driving could mean speeding or possibly running red lights. Depending on the circumstances, you might or might not be convicted, but your file would contain the words "dangerous driving".
If you stole a vehicle, your file would say: "dangerous driving" and "theft of a motor vehicle". The fact that the words "dangerous driving" appear in the file does not explain the circumstances in which the dangerous driving occurred -- the simple fact that you refused to obey a peace officer's order to stop your vehicle. In such cases, it would be preferable that the individual not be accused of dangerous driving, but rather of having refused to obey the order of a peace officer.
A repeat offender's file might only include the dangerous driving offence and he could be given access. However, his file would not relate the circumstances in which the offence occurred. He may have caused the death of another person. But that would not explained, nor would the fact that in order to arrest him, we had to mobilize 15 patrol cars for 15 or 20 minutes, or that we required a helicopter, and so on. In our view, these facts are very important.
At the present time, an offender's file does not contain any of this information -- hence the need for a separate offence that clearly denotes a refusal to obey the order of a peace officer.
Under Section 253, with respect to impaired driving, it states:
Every one commits an offence who operates a motor vehicle, boat, aircraft...
If we specify in Section 253, motor vehicle, boat, aircraft, it is unlikely that a boat will be considered to fit under the definition of motor vehicle.
[English]
The Chairman: Mr. Prud'homme, you said that there is a strict framework for pursuit. Do you anticipate that this bill will alter that framework, that the rules the police work under will change as a result of this bill?
[Translation]
Mr. Prud'homme: The rules will remain just as strict as they currently are. Police departments ask their officers to follow the rules under these kinds of circumstances. We believe this will result in far fewer police chases, particularly if, based on Senator Joyal's suggestion, we start training people and sharing information. Once he is aware of the issue, a 12 or 14 year old who borrows someone's vehicle to go for a ride may decide to obey the order of a police officer to halt. The number of police chases will most certainly drop.
[English]
Mr. Griffin: One of our concerns is that, because of all the negative publicity that follows these types of tragedies, the first reaction in many communities is that the police should not pursue. We believe that sends a message to those who might be inclined to flee from the police that there is less likelihood the police will pursue. We think this bill sends a message in response that, if you do not stop for the police, there will be much more serious consequences, and we think that message is necessary to achieve the goal of reducing the number of pursuits.
The Chairman: Thank you very much for appearing before us.
Honourable senators, our next witnesses are from the Department of Justice, Mr. Hal Pruden and Mr. Donald Piragoff.
Mr. Donald Piragoff, General Counsel, Criminal Law Policy Section, Department of Justice Canada: Given the hour, we will not make an opening statement but simply be available to answer questions. A few have already been raised with the Canadian Police Association and senators may want to ask some of those of us as well -- such as, for example, the questions with regard to motor vehicles, vessels or aircraft. Both of the new offences apply only to motor vehicles and not to vessels or aircraft.
The Chairman: That in spite of the definition in the Criminal Code?
Mr. Piragoff: Yes. There are definitions of "aircraft" and "vessels" in the Criminal Code, and the Code specifically differentiates in some offences between vessels and motor vehicles. Some offences apply only to vessels. For example, failure to keep a lookout for a water skier and towing after dark apply only to vessels and those particular provisions of the Code use the word "vessel". There are other provisions of the Code that say "motor vehicle, vessel or aircraft".
Senator Andreychuk: Would that cover things like snowmobiles?
Mr. Piragoff: Yes.
Senator Andreychuk: Why would you not include motor boats? The previous witnesses said that it was not an issue in the wide open spaces, but chases in boats are not uncommon. Why would we not be consistent and include them?
Mr. Piragoff: I can answer part of the question, Senator Andreychuk, and perhaps Mr. Pruden can answer the other part. This issue was discussed in the other place. This is not a government bill but a private member's bill, and it is the intent of the private member to cover only motor vehicles. Whether the department would have gone further is a moot point.
Mr. Pruden can discuss what happened in the other place because he attended committee hearings there.
Mr. Hal Pruden, Counsel, Criminal Law Policy Section, Department of Justice Canada: As Mr. Griffin began to say, members of the Commons Justice Committee asked whether vessels ought to have been included. My recollection of the response then is that the big concern is with motor vehicles and that vessel chases are not viewed by the police as the extensive problem that motor vehicle chases are seen to be.
Senator Andreychuk: From an educational point of view, if you are going to say that fleeing is fundamentally wrong, should you not be consistent?
Senator Pearson: I understand that it was not the intention of the author of the bill to include that, but it is interesting to raise it, particularly in view of the comments about such things as our border controls. On the St. Lawrence River, for example, there is smuggling going on that sometimes results in boat chases, and it may happen that someone drowns because of that.
Mr. Piragoff: The intention of the private member's bill was to address high-speed chases on highways or in cities. While theoretically we can all agree that speeding chases can occur on boats and fatalities could occur, I do not think statistics have shown that that is a problem. I think that is why the private member restricted his bill to the motor vehicle situation.
Senator Pearson: I accept that. It was just a question. When discussing the budget, we mentioned that we were going to spend more time protecting our borders. I just wanted to have it on the record.
Senator Cools: The witness is saying that the private member perhaps did not contemplate the inclusion of the word "vessel". Does the witness believe that the bill would be enhanced by the addition of the word "vessel"?
Mr. Piragoff: Any decision to include vessels would need to take into account a number of factors. For example, the Canadian Police Association indicated that there are guidelines with respect to undertaking chases with motor vehicles. There are protocols. Each of the provinces has established some protocols. The new offence would take place within the context of an administrative scheme within the police departments with respect to protocol when chases should occur and when they should not occur.
In addition, the public is well aware that when you see lights and hear a siren when you are on a highway, you should pull over to the side of the road. Whether that same type of context exists with vessels is another question that must be answered. Will a boat automatically pull over or stop if a police boat comes beside it with a siren? The vessel must understand that the police want it to stop, which means there have to be certain protocols. I am not aware of what protocols exist with respect to chases of vessels. I think if you are going to create an offence, it should be within the context of what other types of protocols exist to put that offence into existence.
With respect to the offence, the bill does talk about failure to stop while being pursued. That, of course, presupposes that the police are conducting a pursuit and have not stopped the pursuit or are not simply pulling a car over or pulling a boat over.
Would adding the word "vessel" enhance the bill? The direct answer is yes, it would enhance it, but only subject to the question of what other protocols exist so that it is not simply an amendment in a vacuum. There must be something else in provincial legislation or provincial training of police officers that also will help support such an offence.
Senator Fraser: You are probably aware that there has been quite a lot of discussion in this committee about the fact that the maximum sentence under this bill is life imprisonment. It is pretty heavy-duty stuff. How does that fit in with the range of sentences that the Criminal Code now calls for in other offences? For example, how would it compare with sentences for first degree murder, second degree murder, manslaughter, and criminal negligence causing death?
Mr. Pruden: Let me start with the non-murder homicide offences that exist. Section 249 sets out an offence of dangerous driving causing death, and the present maximum penalty is 14 years imprisonment. Section 255 of the Criminal Code sets out the penalty for the offence of impaired driving causing death, and at present the maximum sentence is 14 years. The Criminal Code also has an offence of criminal negligence causing death where the maximum penalty is life imprisonment. Manslaughter carries a penalty of life imprisonment. There is no minimum for any of these offences.
At that point, one could make the observation that if I were prosecuting an offence of dangerous driving causing death during a police chase, I could characterize it as a species of aggravated dangerous driving. If the penalty for simple dangerous driving causing death is 14 years and it is easier for me to prove that offence, as a prosecutor why would I want to go to the trouble of proving the aggravated dangerous driving causing death if the penalty is the same? We do see a certain logic to having a higher penalty for the aggravated -- aggravated by a police pursuit -- dangerous driving causing death.
Senator Fraser: This is even simpler than dangerous driving. This is just failure to stop when ordered.
Mr. Pruden: No.
Senator Fraser: One can conceive of a situation where the person might not be driving that dangerously, yet, through an unfortunate series of circumstances, someone dies.
Mr. Pruden: That is not the way the clause is written. It is tied specifically to dangerous driving. It is tied specifically to paragraph 249(1)(a), dangerous driving.
Mr. Piragoff: Senator, there are two offences.
The Chairman: I will read 249(1)(a) so that we have it on the record.
Dangerous operation of motor vehicles, vessels and aircraft
249. (1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place...
Senator Fraser: In other words, you are already driving dangerously and you have failed to stop.
Mr. Pruden: That is right.
Senator Fraser: And you cause a death.
Mr. Pruden: You will have the aggravated dangerous driving offence, aggravated by the police pursuit, and the death caused by the dangerous driving. In that sense, there is a logic to having a penalty that is higher for the offence of aggravated dangerous driving than for the offence of dangerous driving causing death that is not aggravated by a police pursuit.
Senator Fraser: Do you know if those were roughly the parallels that people had in mind when this was drafted?
Mr. Pruden: I am not sure I know what you mean by "parallels".
Senator Fraser: When considering what sentence to allow or prescribe under the law, one looks at what the law already provides in other circumstances, so that we do not suddenly impose death for shoplifting when we do not impose death for other offences of a similar nature. Would those be the categories that you were looking at? You were looking at what is already done for dangerous driving, and you just said move this over and apply it as it stands to failure to stop.
Mr. Pruden: That would be my expectation of what the private member did.
The Chairman: I would point out that in his testimony before us, Mr. McTeague, who drew this up, compared this as being similar to dangerous driving or criminal negligence. This is what I wrote down when he appeared before us.
Senator Buchanan: We talked about vessels. Mr. McTeague did not include motor vessels in the bill. Unless I am way off base here, does clause 4 not extend the present Criminal Code section to include pursuit of a motor vessel? It does include subsection 249(1), and the accused may be convicted of the offence under subsection 249(1).
The Chairman: Are you speaking of clause 3?
Senator Buchanan: No, clause 4.
The Chairman: There is no clause 4.
Senator Buchanan: I am sorry. Why do I have this one?
The Chairman: You are looking at the one from the police association. When the representatives from the police association appeared before us, they said that they had the wrong version of the bill.
Mr. Piragoff: Clause 1 of the bill amends an existing provision of the Criminal Code. It adds proposed subsection 249.1(3) to an existing provision.
Senator Buchanan: That is fine. That clears that up.
I think this is an excellent bill. I think it fills a void in the Criminal Code. I agree with Dan McTeague, MP; I agree with the Canadian Police Association; I agree with the Quebec federation of municipal police officers. After the death of a young mother in the Halifax-Dartmouth regional municipality, who was killed when her car was in a collision with a stolen van being pursued by the police, I have no hesitation whatever in agreeing to this bill 100 per cent.
Senator Cools: Hear, hear!
The Chairman: Senator Buchanan, I trust you will be here for clause-by-clause study, then.
Senator Buchanan: Yes.
Senator Beaudoin: I still think that we must read proposed section 249.1 in the context of section 249. It creates a new offence. It does not change the applicable principle, but it is much more particularized. It is a new offence, but it must be read in that context.
Concerning the discussion on the question of the use of the word "vessel", I do not think the members of Parliament intended to cover anything other than a car. If we leave the bill as it is, as a criminal law expert, do you think that it can cover something other than a car? That is my only question.
Mr. Piragoff: A definition of "motor vehicle" has been read out already.
Senator Beaudoin: Yes.
Mr. Piragoff: As the chair indicated, it talks about "propelled" or "drawn by". It is a generic definition. The case law would interpret, and has interpreted, "motor vehicle" to include things such as snowmobiles, for example. Motorcycles have also been included in that definition. It is up to the courts to interpret what is included by "motor vehicle". The fact that the code is specific and uses the term "motor vehicle" as opposed to "vessel" is a clear indication by Parliament that it is talking about two different things.
Senator Beaudoin: That is what I think. You said that in addition to the definition of "motor vehicle" under the lexicon here, there is jurisprudence on this. In what direction is that jurisprudence going?
Mr. Piragoff: It has included a snowmobile.
Senator Beaudoin: That is the only addition?
Mr. Piragoff: Motorcycles have also been included.
The Chairman: What about ATVs?
Mr. Piragoff: Yes; all-terrain vehicles have also been interpreted to be within the terms of the definition.
Senator Beaudoin: That is clear in the jurisprudence?
Mr. Piragoff: Yes.
Senator Fraser: I am still fussing here about sentences. Dangerous driving causing death gets you a maximum of 14 years; dangerous driving causing death if you have failed to stop for a police officer will get you a maximum of life. The difference between 14 years and life is simply that you failed to stop for a police officer. Is that not an extreme increase?
Mr. Piragoff: There are two aspects. You have raised a point. When we looked at the bill, we had to wrestle with that. At the request of our minister, we had some discussion with Mr. McTeague prior to the bill going into committee in the other place.
As you indicated, the current offence of dangerous driving causing death is 14 years. This is considered to be an aggravated-type of dangerous driving causing death. The provision is not only failure to stop the vehicle but it also requires that there be intent to evade the peace officer. It is both the intent to evade and a failure to stop without reasonable excuse. In the course of that type of conduct the person also commits dangerous driving, and in the course of committing that dangerous driving they also cause death. It is an aggravated form of dangerous driving causing death.
Currently, under the existing Criminal Code provisions, judges can take into account the fact that the dangerous driving may have occurred in the course of a high-speed police chase. The more aggravated the circumstances are with respect to that police chase, the higher the penalty will likely be. However, as indicated by the previous witnesses, when that offence is recorded in the court records, it is recorded simply as "dangerous driving causing death". There is no indication that it was dangerous driving causing death as a result of a high-speed police chase. It is simply "dangerous driving causing death". There was a concern that there should be some further particularization.
Senator Fraser: It is the degree of the particularization that concerns me, and whether this is not a rather extreme increase solely because someone chose to evade the police. In other circumstances when people choose to evade the police, with what are they sentenced? Is it resisting arrest or running away?
Mr. Piragoff: I will go back and try to answer both your question and the question raised by Senator Poy. What is the philosophical basis behind the offences? There are two offences. The first offence, under clause 1, proposed subsection 249.1(1), is the simple offence of failing to stop without reasonable excuse and with the intent to evade.
There are offences such as speeding. Speeding, by itself, does not cause harm. There are offences of impaired driving. Impaired driving, by itself, does not cause harm. Most impaired drivers get home. The statistics show they get home safely at night, but it creates a risk on the highway. This is the same situation. Where a person intends to evade the police, he or she has made a choice to engage in a risky behaviour. It is not simply dangerous driving where a person has some negligence or is inadvertent. They are kind of driving fast and weaving and not paying attention that they are in a school zone. This is not simply negligent behaviour; it is dangerous driving that has occurred as a result of an intentional act, which is to evade the police. It is because of that intentional aspect, the intentional causation of the risk that subsequently materializes into dangerous driving that then causes death or harm, that this is a higher, aggravated form of dangerous driving.
Is the jump from 14 years to life justifiable? There is nothing else in our criminal law between 14 years and life.
The Chairman: I would point out that section 220 of the Criminal Code, which is referred to in this bill, addresses causing death by criminal negligence. It states:
Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
Therefore, the bill is compatible with criminal negligence causing death.
Senator Fraser: I do understand that, Madam Chair. I just find myself troubled by this enormous gap.
This is my last question. When someone is not operating a motor vehicle, when they are running away from a police officer, is that not also an offence?
Mr. Piragoff: Merely running away is not an offence; resisting a police officer is an offence. You must engage in some kind of conduct that is physical resistance of a police officer.
Senator Fraser: What would be the maximum sentence for resisting arrest?
Mr. Piragoff: It is equivalent to an assault, I believe. I would have to check.
Senator Beaudoin: I think that we have to take into account proposed subsection 249.1(1), when running is without a reasonable excuse and in order to evade. There is a mens rea that has to be established. To use the words of Senator Moore, there are two tests here. For example, if you say it is to evade a police officer, that is not good enough. There is also the part about without reasonable excuse. The protection is all right, in my opinion.
Senator Fraser: We are saying that it is not a simple cosmetic addition of the word "risk".
Senator Beaudoin: Is that the correct way to construct that paragraph? If it is an addition, I have no objection. There is the mens rea, because it is a new offence, let us face it. That is why they wrote this bill, and I think they are right. However, it has to be worded so that it applies if the motor vehicle fails to stop without a reasonable excuse and in order to evade the police officer. It is a strong protection in that sense, because you would have to establish the mens rea, and the accused can always claim to have had a reasonable excuse. However, he would have to establish that it was "reasonable".
Mr. Piragoff: Senator Beaudoin, you raised the point about proving mens rea. Mr. Pruden indicated that if the penalty stayed at 14 years, which is the same penalty as dangerous driving causing death, prosecutors would not charge or prosecute this offence because they would need to prove "without a reasonable excuse"; they would need to prove intent to evade, yet the penalty would be the same. Why make life difficult for oneself as a prosecutor if there is no benefit at the end of the road?
The new offence, as you indicated, has certain aggravated elements built into it in terms of the mens rea -- lack of excuse, intent to evade. The culpability here is the risk that it creates to the public, and if that risk materializes, then it is an aggravated form of dangerous driving. It is more serious than dangerous driving, which simply occurs as a result of negligence. It is dangerous driving that has occurred as a result of an intentional act to evade police.
Senator Beaudoin: That is the way you read it.
Mr. Piragoff: Yes, and also without reasonable excuse. That is the justification for a greater penalty, because there are those factors that aggravate the conduct. There is some element of intention involved and not just simply negligent driving, careless driving.
The Chairman: Did I hear you correctly that there is no intermediate penalty between 14 years and life presently in the code?
Mr. Piragoff: That is correct. The current scheme within the code has nothing between 14 years and life.
Senator Cools: I think that is a point.
Senator Moore: That is a maximum. There is a range, so cannot you say that there is nothing. There is something. The court, given the circumstances, must look at the case and decide whether it should be ten years or twelve years. There is a range.
Mr. Piragoff: That is right, senator.
The Chairman: That is for the judge to decide.
Mr. Piragoff: The judge can decide.
Senator Beaudoin: As my colleague said a minute ago, there is the word "vessel" in clause 2 of the bill, proposed new subsection 259(2), and there is also the Navigation Act.
The Chairman: I know it is there. It is also in clause 3, proposed new subsection 662(5).
Senator Beaudoin: Does that qualify your answer?
Mr. Piragoff: No, senator.
Senator Beaudoin: I just want to know if I am in a car or a boat.
The Chairman: I think we are all in this boat together.
Mr. Piragoff: Clause 2 and clause 3 deal with provisions that apply to a number of provisions -- sections 220, 221 and 236. These include offences such as criminal negligence causing death and criminal negligence causing bodily harm, which do not refer to any mode of vehicle, aircraft, vessel, and criminal by use of a weapon, for example. Some of the sections, such as section 249, refer to motor vehicle, vessel and aircraft. Section 250 and section 251 talk only about vessels and aircraft, I believe. That is the reason why at the end of clause 2, which is proposed new subsection 259(2), and also at the end of clause 3, proposed new subsection 662(5), there are the key words "as the case may be", which basically says you look at the case.
What is the offence being charged? If it is an offence with respect to a vessel, then the prohibition order is "as the case may be". If it is an offence that only applies to motor vehicles, such as the new offences, then the prohibition order is only applicable as the case may be to that type of offence. That is why the provisions exist.
The Chairman: I would point out that that is why the proposed new subsection 259(2) in clause 2 of the bill is identical to the Criminal Code except for the addition of 249.1.
Senator Beaudoin: The question is one of drafting. Do we need those paragraphs? We know what the purpose of the bill is. It is a very good idea, but do we need those paragraphs?
Mr. Piragoff: Those paragraphs do the following two things. Clause 2 provides that if a person is convicted of the new offence of failing to stop for a police officer or causing death or harm as a result of dangerous driving as a result of a police chase, the judge may prohibit the person from operating a motor vehicle for a period of time. Therefore, it is another penalty.
Senator Beaudoin: It is another one?
Mr. Piragoff: It is another penalty. The provision in clause 3 says that, if you are charged with a greater offence, such as criminal negligence causing death or criminal negligence causing bodily harm, and the prosecutor is not able to prove that offence, the court can substitute the lesser offence of dangerous driving, for example. Clause 3 provides that if the Crown charges manslaughter or criminal negligence causing death but is not able to prove that, the judge can return a lesser verdict of the new offence.
Senator Buchanan: Would that be only with respect to a motor vehicle?
Mr. Piragoff: Yes.
Senator Pearson: I am still considering the vessel, not because I want it back in this legislation but because it has raised the fact that we are looking at some new situations. I would appreciate it enormously if you could indicate to me where in the Criminal Code that particular type of problem is dealt with; and if it is not, should the Code be changed?
The Chairman: Perhaps we should ask Mr. McTeague to bring in another bill.
Senator Pearson: We are getting into the issue of increasing numbers of immigrants being trafficked to Canada. The issue has a lot to do with trafficking; it is not the issue of immigrants but rather the issue of the trafficking in human beings across from Canada to the United States. The initial stage of this trafficking often occurs in boats.
The Chairman: This is difficult to answer because it really does not apply to this bill. Perhaps you could give us the answer in writing and I will transmit it to the committee. Or, if you can answer off the top of your head now, that would be great.
Mr. Piragoff: I do not know. There might be regulations under other federal legislation concerning shipping that provide an offence for a ship that fails to give way or fails to stop on instructions. That might exist. I do not know. I would have to check with the Department of Transport. It would be in another area of federal legislation that governs vessels.
Senator Pearson: I would appreciate that.
The Chairman: Thank you very much, gentlemen, for appearing this afternoon.
The committee adjourned.