THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Wednesday, February 28, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, met this day at 4:15 p.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
The Chair: Welcome, honourable senators and distinguished guests. It is my pleasure to open the meeting this afternoon. We are studying Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts.
We have a distinguished group of guests this afternoon. As you understand, you are a large number and we have limited time, so I would like to call upon you individually to try to focus on the essential points that you want to put on the table.
Then, of course, in the process of discussion you’ll have an opportunity to come back. I would suggest that you zero in on what you consider to be the essentials.
We are pleased to welcome Ms. Kathryn Pentz and Mr. Jonathan Leebosh, from the Canadian Bar Association.
From the Canadian Civil Liberties Association, Michael Bryant; from the Canadian Association of Crown Counsel, James Palangio; and from the Canadian Criminal Justice Association, Howard Bebbington and Françoi Boillat-Madfouny.
I dare not refer to the lord’s feudal right, but Ms. Pentz, you have the floor.
Kathryn Pentz, Secretary, Canadian Bar Association: Thank you for the invitation to discuss Bill C-46.
The CBA is a national association of over 36,000 lawyers, law students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. That is what brings us here before you today.
The CBA Criminal Justice Section consists of experienced lawyers who are in criminal courts on a daily basis as both prosecutors and defence from all parts of Canada.
With me today is Jonathan Leebosh from the Immigration Law Section. Members of the Immigration Law Section deliver professional advice and representation about the immigration system to thousands of clients in Canada and abroad. After my brief comments, he will address some concerns about the impact of Bill C-46 on immigration law.
The CBA Criminal Justice Section is extremely concerned over the effects of Bill C-46 on the efficiencies of the criminal justice system. Impaired driving is one of the most extensively litigated areas of criminal law, and every aspect of the present legislative scheme has been subject to intense constitutional scrutiny.
While impaired driving offences are still regularly challenged in court, the issue is largely one of factual analysis and the law is settled. Bill C-46 will change this. The law will no longer be settled and the new provisions will be challenged and interpreted by the courts.
The volume of this litigation alone has enormous implications for the justice system in terms of costs, delays and uncertainty in the law. At a time when the justice system is struggling with justice efficiencies, cases are being dismissed across this country for failing to comply with the Jordan time limits and the litigation triggered by the implementation of Bill C-46, this will only compound the issue of court delays.
The CBA does not view Bill C-46 as offering any significant improvement over the existing legislation, certainly not one that would offset its negative impact on justice efficiencies.
Drug-impaired driving is a major concern to Canadians. In theory, the per se limits introduced in part 1 of Bill C-46 should help combat this issue. Unfortunately, the reality is that science has shown that specific limits do not equate with impairment. While this will identify drivers who have drugs in their system, it will not identify drivers who are impaired. Habitual users may not be impaired at five nanograms, yet casual users may be quite impaired at a much lower level.
A major concern of the criminal justice section is the constitutional issues raised by Bill C-46, most notably subsection 320.27(2), which establishes mandatory roadside testing.
The raw data used to support the constitutionality of this provision may be persuasive. Other jurisdictions have had considerable success in reducing impaired fatalities by the introduction of random testing.
Australia is often cited as a model example, but we must remember firstly that Australia does not have a charter of rights and freedoms and secondly that Australia’s success was achieved upon a change from no testing to random testing. When Canada went from no testing to suspicion-based testing, we also had a significant decline in our rates, so we should not expect the same percentage Australia enjoyed.
Introduction of mandatory testing will impose hardship on the criminal justice system both in resources and delays in the court system. We are by no means convinced this hardship will yield any significant results.
We must remember that legislation is not the only way to combat the issue of impaired driving. Public education plays a major role. Insofar as legislative amendments, the CBA Criminal Justice Section has and continues to urge a cautious approach to any legislative change in this area.
Jonathan Leebosh, Member, Canadian Bar Association: I will be very brief and focus in on the immigration impact of the proposed changes in section 320.19 around the maximum penalty for driving under impairment.
The increase in the maximum penalty under this section to 10 years is significant. It will bring impaired driving offences under the serious criminality provision of the immigration section. This could very well lead to a potential finding of inadmissibility of permanent residents of Canada, people who have well established here for many, many years. A single impaired driving offence in Canada could cause a permanent resident to be issued a deportation order and lose their permanent resident status.
An impaired driving offence outside Canada currently has no impact on permanent residency. Under the proposed provision, a foreign impaired driving conviction could result in a deportation order without even a right of appeal for the permanent resident.
This proposed provision will also place a significant strain on government resources, negatively impacting the ability of immigration and border officers to expeditiously process applications and impede the flow of legitimate travellers at the border. It will have a significant impact, we expect, on the tourism or travel industry into Canada as well.
We recommend amending the maximum penalty to 10 years less a day. That will take it out of the serious criminality provisions. This would protect Canadians from impaired driving without triggering the serious immigration law consequences. Thank you very much.
The Chair: We will now hear from the Canadian Civil Liberties Association, Mr. Bryant.
Please follow the examples of our other guests as we have limited time.
Michael Bryant, Executive Director and General Counsel, Canadian Civil Liberties: The Canadian Civil Liberties Association has been fighting for our freedoms for more than 50 years.
The Canadian Civil Liberties Association was founded in 1964. It is an independent, national, not-for-profit, non-governmental organization. We engage the judicial, executive and legislative branches of the state wherever they exercise power at the expense of Canadians and their civil liberties.
Our September 18, 2017, brief to the House of Commons Standing Committee on Justice and Human Rights is 19 pages of brilliant detail authored by Dr. R. De Luca. I will spare you a close reading of that, but I commend it to you.
As the thirty-fifth Attorney General of Ontario, I tell you that this bill is truly an affront to the many provinces in the country and to our federalist system, wherein British Columbia, Ontario and Quebec have quite different approaches to dealing with impaired driving.
Instead of taking the best of those approaches or a combination of those approaches, Ottawa has decided that it knows better. It is to come up with its own approach that supposedly will make us safer but most definitely will be a step backward for civil liberties in Canada.
It is the most illiberal of bills, being punitive to the poor and lends legal authority to justify systemic discrimination. It will also jack up demand upon provincial legal aid resources with no corresponding aid to Legal Aid Ontario and their national counterpart.
I will deal with two sections in particular. The first one is regarding mandatory screening or random breath testing. This is legalized carding. That’s what it is. When you set up a random breath test at Jane and Finch in Toronto, in parts of Winnipeg and Vancouver, in the Muslim neighbours of Maple, and in ethnic neighbourhoods in Halifax, it will feel to all those residents as if the police are targeting them because of the colour of their skin, the language they use or the religion they share. It means a proliferation of racial profiling depending on where the random breath testing takes place.
Proposed subsection 320.27(2), we submit, ought to be removed. It is a huge shift in our criminal justice system. It is a warrantless search without cause and a warrantless seizure of our very breath and bodily fluids without cause. This is a dramatic departure from the way in which this country and our Charter of Rights and Freedoms have operated.
It will now be a crime for an individual to refuse a warrantless without cause seizure of their breath. It will be no defence that they didn’t know about Bill C-46.
In conclusion, on the mandatory fines of $2,000, I am sure senators are aware that $2,000 is an unpayable fine for a distinct population in the country. It is a fundamental principle of justice in Canada that if an individual cannot pay a fine, a judge ought not impose a fine upon a person. A mandatory fine flies in the face of that. This chamber, of all chambers, knows that principles of deterrence don’t work and are routinely disproven by criminology.
As such, we recommend the removal of subsections 320.19(3) and (4) and call for the amendment of subsection 320.19(1)(a) by adding the word “presumptive” to the words “minimum punishment.”
Lastly, the bill’s retrospective punitive approach is a step backward, crippling the innovative, rehabilitative courts in Quebec, Ontario and many other provinces. It is a step backward, crippling Indigenous sentencing circles because it takes away from those courts the ability to deal with particular offences because of the mandatory penalties.
Bill C-46 continues the wilful blindness of Parliament to the contribution of alcoholism and addiction to impaired driving. Thank you.
The Chair: Thank you very much, Mr. Bryant. You are exemplary.
I would like to invite, from the Canadian Association of Crown Counsel, James Palangio.
James Palangio, Crown Counsel, Canadian Association of Crown Counsel: Honourable senators, it is a pleasure to appear before you on behalf of the Canadian Association of Crown Counsel.
The CACC is comprised of organizations of Crown prosecutors, civil lawyers and notaries employed by the Crown in the federal government and each of the provinces. These member organizations represent front-line prosecutors and civil government lawyers in each province, as well as the federal prosecution service and the Department of Justice.
I have been asked to appear before you by the President of the Association, Mr. Rick Woodburn, on account of my expertise in impaired driving law. As I am appearing on behalf of the CACC, the views or opinions I express here today should not be taken as necessarily representing those of my employer, the Attorney General of Ontario.
I began my career as a Crown attorney in northeastern Ontario 25 years ago. I have practised in small towns and large cities across the province. In my current role as counsel at the Crown Law Office, Criminal, I have argued several significant impaired driving cases before both the Ontario Court of Appeal and the Supreme Court of Canada.
For the past 22 years, I have taught impaired driving law to new and experienced Crown counsel from Ontario and across Canada. For the past 14 years, I have participated in the FTP working group on impaired driving, the body responsible for developing the impaired driving reforms introduced in 2008 in the Tackling Violent Crime Act, and those in the bill before you now, some aspects of which have been almost 10 years in the making.
As Canada moves forward with cannabis legalization, significant changes to the country’s impaired driving laws are both necessary and inevitable. Parliament has also chosen this opportunity to modernize, simplify and streamline Canada’s alcohol-impaired driving laws by enacting the most sweeping changes to these provisions in half a century, by recognizing the evolution of the science behind modern approved instruments, and what we know so far about drug-impaired driving.
Among these changes, Parliament has criminalized the act of consuming large quantities of alcohol shortly before or while driving, also called “bolus drinking”, an act described by the Supreme Court of Canada as irresponsible toward public safety and pathological. Parliament has also sought to curtail the act of post-driving drinking in certain circumstances, which the same court has labelled as an act of mischief intended to thwart police investigations and demonstrative of a cavalier disregard for the integrity of the criminal justice system.
Among the many provisions aimed at streamlining trials is the statutory introduction of a simple arithmetical calculation to determine a person’s blood- alcohol level where the taking of breath or blood samples is delayed beyond two hours.
Appellate courts have accepted, based on 50 years of expert testimony, that the human body eliminates alcohol at a rate of not less than 10 milligrams per 100 millilitres of blood per hour. This newly codified calculation will eliminate the need for costly and time consuming expert testimony and greatly assist in reducing court delays and needless litigation.
If the experience in other free, democratic and diverse societies is any indication, mandatory alcohol screening promises to be the most effective deterrent and life-saving aspect of Bill C-46. There is overwhelming evidence that trained police officers cannot always detect alcohol in the body of a person, either through their sense of smell or through questioning. As a result, many drivers who would otherwise be subject to current screening measures avoid detection. Mandatory alcohol screening is intended to overcome these limitations by identifying additional drivers who have alcohol in the body and may pose a risk to public safety.
Driving is a strictly licensed, highly regulated, inherently dangerous activity. For most Canadians, the riskiest thing they do on a regular basis is to get into a car. Reducing this risk through deterrence has long been the overarching objective of Canada’s impaired driving regime. The deterrent aspect of mandatory alcohol screening and other aspects of Bill C-46 should not be underestimated. Deterrence not only increases public safety, but also reduces the number of charges coming into the justice system, thus reducing delay.
No doubt the science and the knowledge surrounding drug-impaired driving are progressing, but they are nowhere near our current level of understanding for alcohol. As our understanding of drug impairment evolves, so will these provisions.
The CACC has proposed amendments in our written brief intended to minimize the impact of litigation anticipated in the wake of Bill C-46 coming into force and to resolve issues that are currently unsettled before Canada’s courts. They are intended to reduce the demands on court time and to ensure trials are decided on their merits, unencumbered by litigation over pointless technicalities.
We have made these recommendations cognizant of the fact that the code’s driving provisions work harmoniously with one another as a whole to achieve Parliament’s objectives and that any proposed amendment must take into account the effect that amendment has on the overall scheme.
My hope is that my appearance here today can assist you with the more technical aspects of the bill or impaired driving law in general. Thank you.
The Chair: To conclude the presentation will be Mr. Bebbington, to be followed by his colleague.
Howard Bebbington, Chair, Policy Review Committee, Canadian Criminal Justice Association: I would like to start by noting, perhaps of interest to the committee, that the CCJA will be 100 years old in 2019.
We are an independent, national voluntary sector organization, working for an improved criminal justice system. We have 700 members across the country, representing various perspectives on the criminal justice system, including criminologists and other academics, lawyers, police, victim support workers, probation officers, parole officers and other correctional workers, et cetera.
We exist to promote rational, informed and responsible debate to develop a more just, humane and effective criminal justice system. We publish, every year, the Canadian Journal of Criminology and Criminal Justice. Every second year, we host the Canadian Congress on Criminal Justice.
Senators have our brief so I don’t propose to go through it in any detail, but I do want to start by applauding the federal government for its efforts to update and modernize what is a difficult area of law that has been highly litigated and has been conducive to a great deal of delay before the system. We think it is particularly important with the advent of the legalization of marijuana.
However, we do have several problems with the bill. Our major concern is with the evidentiary basis for the so-called per se offence, the blood drug concentration offences. We firmly believe that criminal justice policy must be evidence based, but we have very significant concerns about the evidence base for the per se offences.
The committee need look no further than at the evidence that has already been led before the committee, starting with the Minister of Justice in her appearance on January 31. In her testimony she admitted quite candidly that the science around drug-impaired driving and recognition of levels of impairment with an individual is not as advanced or as exact as alcohol-impaired driving. She referred to the need to continue to follow the science. She referred to blood drug concentrations of both two nanograms and five nanograms, both of which exist in different jurisdictions. Apparently, Canada will adopt both for different purposes, but, again, we question the science of choosing those levels or any levels as representation of impairment.
I would remind the committee of Senator Carignan's reference to the studies by the American Automobile Association, conducted in partnership with the International Association of Chiefs of Police. Their conclusion was that there is no correlation between the two. It depends on many factors.
In our organization we are not scientists. We are not biologists. We are not toxicologists, but we do question seriously the evidence base for the per se offences and suggest that the government might want to delay the implementation of those provisions until such time as the science is better.
The second point I would like to make, and hopefully briefly, is the use of regulation to establish the blood drug concentrations. We believe it is critical for the criminal justice system that norms establish the line between innocent and criminal behaviour be in the law, just as the BAC is now. We believe it is important for those levels to be publicly debated before Parliament. We also believe it is important for accessibility, both for the public and the legal profession.
I will call on my colleague François Boillat-Madfouny to speak to my third point with respect to mandatory alcohol screening.
François Boillat-Madfouny, Member of the CCJA Policy Review Committee, Canadian Criminal Justice Association: I will be very brief. Essentially, CCJA believes that there are many alcohol-impaired drivers on the roads, and that mandatory alcohol screening would significantly reduce that number. If we look at the different Commonwealth and European jurisdictions that have enacted such laws with notable success, we believe that it may be an interesting way to work.
Mandatory alcohol screening may also serve court efficiency purposes by lessening the evidentiary burden of the Crown. We recognize the Charter risks of mandatory alcohol screening. Yet CCJA believes there are good and valid arguments that could justify the violations under sections of the Charter.
Fortunately, our courts will be the ones to make that decision, but the CCJA believes that there are good and valid arguments.
Mr. Bebbington: I have two other points. We are very concerned about the continued use by the government of mandatory minimum penalties, notwithstanding the clear chronological evidence against that.
We would suggest one need look no further than at the Department of Justice documentation under their website. If you look under the subheadings “Why are we transforming the criminal justice system?” and “Less discretion for judges”:
. . . some suggest mandatory minimum penalties provide certainty in sentencing and help to ensure people are treated equally. In practice, though, they often make it hard to ensure the punishment fits the crime.
The Department of Justice goes on:
Studies in the United States and elsewhere show they do not deter crime. Recent data suggests they result in shorter sentences, fewer guilty pleas, and longer trials ( including more Charter challenges). More victims are forced to testify and backlogs increase.
Again, those are the words of the Department of Justice as posted.
We think the evidence is quite clear. The Supreme Court of Canada has spoken in Nur, in Lloyd, and in the Ontario Court of Appeal in the past year in a case called Morrison, dealing with sexual offences against children where a mandatory minimum was struck down. There cannot be a more serious offence.
The Chair: Conclude, please.
Mr. Bebbington: I apologize. The case law is clear. We suggest that mandatory minimums are bad law and bad policy.
On one final point, we really would implore the federal government to increase its support and funding for drug treatment court, treatment programs and other restorative solutions in the hope of finding a more humane and lasting solution to some of these problems.
Thank you; my apologies.
The Chair: No, that is fine.
Senator Dupuis: My first question is for the Canadian Bar Association. I thank all of you for being here to enlighten us on the problems you foresee with this bill.
You say that you are concerned by new, costly legal proceedings this legislation will trigger, that this will give rise to many constitutional court challenges. You say that the government should delay the implementation of limits as such, of specific data. In your opinion, once the science is steadier, would you be readier to accept this type of limit, or do you feel that in any case there will be constitutional challenges, as there have been regarding alcohol?
Ms. Pentz: I think there would be court challenges in any event, but we would have better arguments to put forth to the court and better evidence. As was mentioned, it has to be evidence-based.
At this point in time, the experts are saying we really cannot get a correlation between a level of drugs in one’s system and a level of impairment.
We are very concerned the per se limits themselves will not achieve the purpose we would have hoped. Some people who are impaired will fall through the cracks, and some people who are not impaired will be found to be over the limit yet not impaired. Those are our concerns.
If the science evolves, our concerns would have to be reassessed.
Senator Dupuis: Is your position concerning random consumption tests due to the fact that these tests are completely random? Does that mean that you would agree if these were done using roadside checkpoints announced in advance? Would your position be the same, or would you consider that in any case, whether they are announced or not, random tests challenge civil liberties?
Mr. Bryant: The problem is that the police are able to skip a very critical step.
It is not the fact that they are random. It is the fact that they are mandatory.
Senator Boisvenu: My question is for Mr. Palangio. Since I will only be asking one question, I will allow myself one comment for Mr. Bryant concerning minimum sentences.
Driving under the influence and causing death triggers a $1,000 penalty for a first offence. For a second offence, the penalty is $2,000. That is difficult to swallow for victims’ families.
Mr. Palangio, some Statistics Canada representatives appeared before our committee a few weeks ago to inform us about the delays in cases involving driving under the influence of drugs. Those delays are twice as long. In addition, the cases of driving under the influence of alcohol have almost doubled in the 18-to-34 age group over the past few years, even though there has been a reduction in consumption.
This morning, I was listening to a report from an eastern Quebec region that said that only three police officers have been trained in drug detection. The Crown attorney stated that because of the complexity of the current act and the lack of resources, a lot of charges may be dropped because the people in the field are not ready.
In your experience, because of the complexity of road tests, particularly for marijuana, how will police officers act in the field over the coming months? Police officers and Crown attorneys are very concerned, because the system is not ready to absorb the impact of this legislation.
Mr. Palangio: There has been a big push toward getting more SFST-trained and DRE-trained officers ready for the legalization. The problem is that it is a complicated process in terms of setting up classes and having officers come from across the country, or across the province, to attend those meetings.
They have started. If the question is, “Do we have enough on the ground for the coming into force of legalization,” I don’t think we do. We’re doing the best we can to get those officers trained and ready to go.
Senator Gold: Welcome, everybody. My question is about random mandatory breath testing for alcohol, so I will direct it to the Canadian Civil Liberties Association, of which I am a former member and friend of the late and lamented Alan Borovoy in an earlier life. I will also direct it to the Canadian Bar Association, of which I am a member as well.
In both your briefs you stated you don’t think that these provisions will pass constitutional scrutiny. Could you perhaps elaborate more on that?
In particular, how would you respond to Professor Hogg’s brief and analysis? Notwithstanding the prima facie infringements on a number of rights, we can disagree about section 8. I don’t want to get into the weeds too much, but this is constitutional by virtue of section 1 of the Charter.
Mr. Bryant: . I would say that Professor Hogg gave his opinion to Mothers Against Drunk Driving in 2010. He did not have in front of him the opportunity to review the 2012 Traffic Injury Research Foundation proceedings that summarized all the evidence.
At page 6 of our brief we say that the existing research does not provide evidence that random breath testing is more effective than the status quo, SBT.
In other words, if the test ends up boiling down to the reasonable limit, and in turn to whether it’s proportional and an effort to tailor the infringement on the one hand to the remedy on the other hand, there’s a less unconstitutional way of doing it which has been proven to be effective in the past.
In that sense, I don’t know whether Professor Hogg had that at the ready. The gist of it is that it was already a close call when the Supreme Court of Canada made the ruling because the court found liberty and dignity at stake in having somebody provide a breath or urine sample. This was a significant infringement of section 7 liberty and security of the person.
It required a significant tailoring and a careful effort of provinces to put together systems that went out of their way to avoid the unconstitutional search and seizure that arguably was necessarily called for in this act. It skips over the critical first test that has to be found in every other warrantless detention, search and seizure, and that is that there be reasonable and probable cause.
Senator Gold: If I may, the brief Professor Hogg submitted to the House of Commons committee was dated September 14, 2017, so at least his analysis is current.
Mr. Bryant: Do you mean his testimony?
Senator Gold: His submission to the standing committee.
Mr. Bryant: It was based upon a paper that he wrote in 2010, but perhaps I am mistaken.
Senator Gold: Professor Hogg is an eminent constitutional scholar, the greatest of his generation.
Mr. Bryant: Yes.
Senator Gold: Despite that he is an emeritus professor, he remains up to date in law and jurisprudence. I would assume his opinion is fully informed by both case law and the difference of opinion as to how to weigh the evidence of the efficacy of random breath testing.
Mr. Bryant: Infallible?
Senator Gold: No one is infallible.
Mr. Bryant: Right.
Ms. Pentz: What is concerning is that when we look at the studies from other jurisdictions it’s difficult. We are looking at Australia and other countries and saying that we can replicate those results here.
There are a lot of reasons why it won’t work here. Part of it is because of the nature of our country and our population. Stats show that in metropolitan cities there’s a higher incidence of impaired driving. We have to look at all the specific factors that are unique to our country.
Australia is always seen as the poster child for this, but we have to look at the resources they deployed. Studies show that in Australia they did a significant number of samples. They tested one-third of all drivers in a year. That would translate to three million drivers tested in Canada and 82,000 tests a day in Ontario alone.
We can imagine the resources required for that, and we don’t have the resources. If we don’t have the resources to implement the program properly, any sort of deterrent effect will not be achieved.
Senator Gold: I stand to be corrected on this, but we’ve heard testimony to the effect that the government does not expect the same drop-off in impaired driving as in Australia because we’re starting from a different point. Nonetheless, at least in their analysis of it, there will be a significant drop-off and a significant number of lives saved.
In an attempt to compare apples to apples, they have taken that into account. Is that your understanding as well?
Ms. Pentz: I think they’ve certainly tried to. I am not sure if it has been successful.
Senator Carignan: My question is addressed all of our witnesses. I also have trouble with the limit as such, because of the evidence we hear about the lack of scientific data to establish a distinction between the limit and impaired faculties. I am worried about the accumulation of situations and the chain of events.
Let’s take the example of a police officer who stops someone. He will ask him to submit a sample in order to detect cannabis. The offence occurs in the two hours after he stops driving. At least two hours may have gone by. The person is asked for a saliva sample which is inserted into a device. The device detects the presence of a substance, but not the quantity. How can we have reasonable grounds to believe that there is an offence in the presence of 5 nanograms if the device does not measure the quantity?
So the officer concludes that there is an offence, and then the investigation proceeds a bit further. The individual is asked for a blood sample. So now the person has stopped driving for more than three hours. According to certain studies, we know that the level of THC in the blood may drop by 75 per cent in 30 minutes. We still have not seen the link between the blood sample and the offence. Afterwards, we have an offence prescribed by regulations. I have not often seen criminal offences where the actus reus was in the regulations rather than in an act adopted by Parliament.
Correct me if I am mistaken, but I think that this way of doing things is completely arbitrary. We are creating a false sense of security due to the fact that a law exists. However, the principle will be rhetorical, as the accumulation of arbitrary circumstances and irrational elements will mean that the courts will annul that part of the proceedings.
Mr. Bryant: Exactly, I would say, whether or not what you just described falls within the Constitution and if Professor Hogg is correct that it is constitutional.
Senator Carignan: Professor Hogg has not provided an opinion on this.
Mr. Bryant: I realize that. Regardless, that doesn’t mean necessarily that it is an excellent policy. Instead, whether or not it complies with the Charter, the point is it engages in the kind of leaps of logic that you’ve referred to in your question, and I agree with you.
Senator Carignan: On the threshold issue, experts have told us that the device will detect three types of THC, but will not detect opioids, because too many people take medication and we run the risk of having too many false positives. Is there not a type of discrimination there against those who take cannabis for medical reasons, and those who take another, opioid-based product, given that they will not be the subject of tracking?
Ms. Pentz: These are the types of arguments the CBA is concerned will be raised and will create considerable backlog despite the fact the goal is to streamline the process. We are concerned about these types of arguments in court.
I think the intent was to try to mirror the alcohol provisions where we have the roadside screening which gives the grounds to make the breath demand. It is difficult to compare alcohol and drugs in that regard.
Mr. Palangio: I think the evidence before this committee has established, at least as of today, that the oral fluid screening devices will not provide grounds to go further. They do not provide evidence of impairment, or a correlation between what is in the blood.
Having a drug in your saliva is not an offence. For officers to move forward to make an arrest and make a further investigatory demand, they need reasonable grounds to believe an offence has been committed.
Mr. Bebbington: With all of the undoubted constitutional litigation and the delay that all of the factors you have referred to will cause, one also has to consider the great confusion in the mind of the public.
It’s extremely hard to understand how this could help to combat a potential risk of drug-impaired driving. We agree with your points.
Senator Eaton: Alcohol is subject to mandatory testing but drugs are not. The THC limits for Criminal Code offences are set in regulation. It looks like the law is ahead of the science.
Am I right about that? If so, what are the legal ramifications?
Mr. Palangio: I think that’s probably fair.
Senator Eaton: Science is chasing the legislation. I have another question to which you could reply more fulsomely, perhaps.
The mandatory alcohol screening applies only to motor vehicles and not to conveyances such as aircraft or trains. I would think the risks are greater with some of these conveyances that are carrying many passengers or hazardous materials. Why wouldn’t they be included in the mandatory alcohol testing?
Mr. Bryant, are you exploding with rage at the thought of a pilot being mandatorily tested?
Mr. Bryant: No. Higher responsibilities go with those particular professions, meaning that there are drug testing and alcohol testing regimes in place for them.
Senator Eaton: There are already.
Mr. Bryant: That’s right. Also, the criminal negligence offences would capture all manner of such conduct by a pilot in that case. I believe that’s why the focus was on drivers.
Senator Eaton: Does anyone else have anything to add?
Mr. Palangio: In our brief we recommended that this committee amend to provide that the mandatory alcohol screening would apply to operators of all conveyances.
Senator Eaton: That’s what I thought.
Senator McIntyre: Thank you all for being here today and answering our questions.
I have a question about the interlock system. The interlock device is an option that the court can allow immediately upon sentencing. It has a positive and a negative side.
On the positive side, if one enters a plea of guilty, my understanding is that in the first 90 days one can take advantage of the system and get his or her licence back.
On the negative side, my understanding is that it applies more to individuals who are financially well off. In other words, it is an expensive program.
With that said, and taking into account disparate income levels and fairness, do you think we should be looking at the mandatory minimum prohibition for the purpose of determining if there could be an exception built into the system to allow certain individuals to keep working, keep their jobs or do other valuable things under other strict conditions?
Ms. Pentz: Certainly, a way to ensure people can continue with their employment as long as we’re satisfied that they will not be committing any further offences of impaired driving should be encouraged.
You are quite right. It’s an expensive proposition and it’s only those with money that can currently take avail of that process. Unless there is some investment perhaps in a less expensive type of equipment, I don’t know there’s any other way around that.
Mr. Bryant: We could not even imagine right now the many other fact situations that will be facing the courts. The problem with mandatory minimums is that it completely removes the ability of the judge to tailor the punishment to the offence.
As has been referred to, not by myself but by my friend representing the Crown attorneys, the point was technicalities, as he referred to them. They will continue to be pursued by defence counsel, and it’s because of the mandatory minimums. It is because of the complete absence of any alternative than the one in which they must go to trial. There’s zero incentive for pleading guilty under mandatory minimums.
We will continue to get what some consider to be facetious arguments which will inevitably become part of the jurisprudence. The courts don’t like mandatory minimums, and they will try to find ways to get around them. Better that we make an amendment, as you propose, to put in the word “presumptive” instead of “mandatory.”
Senator McIntyre: Yes, we have mandatory minimum penalties but we also have mandatory minimum prohibition.
What I am referring to is mandatory minimum prohibition. This is really the crux of the matter as far as the interlock system is concerned.
Mr. Bebbington: It always surprises me that as a society we’re not prepared to consider further use of the interlock ignition devices, often because if we require manufacturers to place them in cars there would be a cost. Yet we’re prepared to contemplate and incur the cost of putting people in jail for sometimes long periods of time after the offences occur.
I would suggest it is something that needs to be explored from a variety of perspectives.
Senator Pratte: I also have doubts about the per se limits. However, we have to recognize there is some rationale behind them.
One part of the rationale is that from experience reported by police forces it is more difficult to detect drug-impaired drivers. It is more difficult to charge them and, if there are charges, it takes longer to process those charges in court.
From statistics reported by Statistics Canada, those charges result in fewer guilty verdicts. That’s obviously a problem which per se limits might address successfully or not.
If not through per se limits, how do we address this challenge of less detection, fewer charges and fewer guilty verdicts for drug-impaired drivers?
Mr. Boillat-Madfouny: The CCJA would say we’re not necessarily against that approach of per se offences. It is just that presently the evidence is not there yet. That’s why we recommend to delay it.
For different reasons, you cannot import the logic that we have regarding alcohol-impaired driving to drug-impaired driving, specifically THC-impaired driving. There are many differences. For instance, THC blood concentrations do not adequately portray proximity to use the same way it does for alcohol, or the presence of THC in the driver’s blood does not reflect psychoactive influence the same way the presence of alcohol does. These per se offences presume that cannabis impairment and THC impairment equate to road dangerousness, which is not yet proven.
We’re saying that we have to wait until we have evidence and science that give a valid basis to these types of offences which have great consequences to someone who is declared guilty. Even under a summary offence, the consequences of having criminal convictions are huge.
If there’s no impairment, if you’re not even dangerous on the road, why would you have to be subjected to these consequences?
Senator Pratte: I am not here to argue with you, but one of the problems is who decides when there’s enough science.
For instance, the Drugs and Driving Committee of the Canadian Society of Forensic Science apparently recommended to the government those limits, and the government decided to accept their recommendations.
That’s one committee. Is that enough science or not? I don’t know.
Mr. Bryant: I would suggest, under the circumstances, that it ought to be left to the court to decide, for the court to assess the science, to the court to assess what are the arguments, and for the court to hear from an expert and allow for cross-examination of the expert.
Through that process, until such time as science is at a level where Parliament can be confident that per se will be both reliable and constitutional, we continue to let the courts make that decision.
Mr. Bebbington: Parliament decides. The courts will decide if the question is posed in the context of a real case, but before we get there the question is whether you’re satisfied with the science.
We’re not suggesting there isn’t good science and hard work being done. We don’t believe it’s there yet for the purposes of the certainty required for a criminal prohibition with the consequences of a criminal conviction.
I must say, with respect, you get a chance to decide that in this context, whether you’re convinced by the science. I believe you’ve heard evidence on both sides.
Mr. Palangio: There is no evidence for taking the blood sample within two hours, which is a requirement for the per se offence. If the blood sample is taken outside of two hours, it will not be admissible to prove the per se offence.
For that reason, the bill has also beefed up the provisions having to do with DRE officers by making their opinion admissible, which is the opening the Supreme Court identified in Bingley, and by introducing a presumption, rebuttable of course, that if you find the drug in the bodily fluid, it’s deemed to be the drug causing impairment.
There are two things going on. It’s not just the drug per se level. It’s also beefing up the DRE provisions.
Senator Batters: From many of you today we’ve heard significant concerns. In your considered opinions, you find the random alcohol testing provisions in this bill to be highly likely to violate the Charter.
Ms. Pentz, when you testified before the House of Commons Justice Committee talking about mandatory roadside screening, you said:
. . . the essence of the CBA's objection is that it is random testing. We view this as a violation of section 8 of the charter and believe it would not withstand constitutional challenge.
In your brief, you said:
Random breath testing (RBT) is likely to lead to more Charter litigation, absorbing significant system resources without substantial results.
You also said in your brief that you don’t find it would likely meet the Oakes test as not being minimally impairing.
CCLA indicated in their brief:
In CCLA's view, the mandatory implementation of random breath testing in Canada would constitute an unreasonable search and seizure in violation of s. 8 of the Charter.
I found your quote today, Mr. Bryant, when you said that this was “the most illiberal of bills” to be something that I would have expected this particular government to give a bit of pause to, but apparently not.
I am wondering if, perhaps Ms. Pentz and Mr. Bryant could tell us about the effect they would expect the major amount of litigation we would likely see from all of these potentially unconstitutional provisions to have on the criminal court delay crisis in Canada.
Ms. Pentz: What we will basically have is that everyone who is subject to a sample being given by mandatory test will be challenging that. You can imagine how many will be going through the courts. Those will then go up to the Court of Appeal level, the Supreme Court of Appeal, and ultimately the Supreme Court of Canada.
Not only will it delay and clog our provincial court and appeal courts system, but it will have a significant effect on other cases going through the system.
At the end of the day, we don’t view there being any merit to the proposal. We don’t view that it is worth the risk of clogging up the system as we anticipate will happen.
Senator Batters: Perhaps Mr. Bryant you could comment on that.
Mr. Bryant: I am not going to repeat what was said. I agree with what was said, but I wanted to add that whether it is constitutional will ultimately be determined by the courts and then, in theory, sent back to Parliament. It’s a dialogue, as Professor Hogg has said, between Parliament and the judiciary.
My point would emphasize more the impact the bill will have on communities and not the Charter status of the bill. It will be an extremely divisive bill, perhaps unintentionally by the government when people are ordered by the police to provide a breath sample or a urine sample in circumstances where they have been pulled over when nothing has happened and there’s no reasonable and probable cause.
In the current context or the current era of racial profiling, carding and the treatment of Indigenous people, which we will hear about late, it is an extremely sensitive issue. This is the worst time in which to be introducing anything that has the word “mandatory” in it when it comes to the enforcement of the law.
Senator Batters: Mr. Palangio, thank you for providing some suggested amendments to minimize court time and court delays. I know you would know that our Legal Committee did a major study on criminal court delays, so we’re keenly interested in this issue.
Could you explain what you would consider to be the most important amendment you would like to see made to this bill on behalf of your organization?
The Chair: You might want to think about it, and I can come back to you.
Mr. Palangio: I’ll think about it. I did mention three in my opening remarks.
If I were to point to one or two, certainly it would be the readback provision, ensuring that it’s clear that it’s 20 or more milligrams of alcohol and the disclosure provisions. Dr. Mayers testified about the exception messages or error messages. Pretty much, the ones in the brief are the most important; but if I had to pick two, it would be those.
Senator Boniface: My question is for Mr. Palangio. I am interested in the mandatory alcohol screening.
In the number of stops that police do, we have heard that as many as 30 per cent of the drivers may actually get away because of the time and opportunity that officers have.
In the work you’ve done in the committee and you have the practical experience on the ground around the potential for mandatory alcohol screening, I would be interested in your comments in terms of how that may affect public safety for the rest of the people travelling on the road. That would be my first question.
Mr. Palangio: I think Chief Superintendent Cox, when he was here the other day, did a very good job of describing what mandatory alcohol screening is not. It’s not a new stopping power.
Depending on what study you look at, the range can be as low as 30 per cent but it can be higher than that.
There is the ability to smell alcohol, big surprise. People sometimes deny to the police when asked if they’ve been drinking. Those people get through, whether it’s a roadblock or a random stop on the side of the road. We think the evidence is overwhelming that that is not an effective way of determining whether or not a person has alcohol in their body.
With mandatory alcohol screening, you take only that aspect out of the current demand, coupled with public awareness about the ability of the police officers, especially when we’re bringing in a new impairing drug and legalizing it. Publicizing that would have a huge deterrent effect on not only on alcohol-impaired driving, which would be fantastic, but also on drug-impaired driving.
Senator Boniface: I think you’re correct: That’s how Chief Superintendent Cox covered it.
My second issue is around minimum penalties. I am interested in your perspective, because it’s one of the issues we all wrestle with a bit, in terms of the impact you’ve seen of general deterrence.
Mr. Palangio: Courts have said for 30 or 40 years now that impaired driving is a different kind of criminal offence than most other criminal offences. They’ve recognized it is the type of offence that may be committed by otherwise law-abiding citizens who come from good backgrounds. That’s the demographic that is potentially much more liable to be deterred by the possibility of stiff sentences and consequences.
The deterrent aspect of impaired driving law covers more than the penalty phase. Part of it is the certainty of being caught if you’re doing it. The second is the certainty of being convicted if you have been caught doing it. The third aspect of it is the certainty of a harsh penalty if you’ve been convicted of doing it.
All of that works together, and the courts have recognized that in this area mandatory minimum sentences have had a significant impact in reducing impaired driving.
Every time Parliament has increased or changed the mandatory minimum penalties, courts have remarked on that. They’ve noticed that Parliament is increasing the penalties, and then that increases the penalties for the more serious offences too, including bodily harm and causing death.
Senator Pate: Picking up on Senator Boniface’s questions, I liked to ask you a bit more about that in line with my understanding that it’s more the certainty of being caught and penalized than necessarily the penalty.
In fact, in your submissions you talk about suggesting some possible amendments around treatment options. I am curious as to how often those treatment options, in your experience, are made available to individuals and in what context and how often they would be suggested.
The presumption, by the way it’s worded, is that it will obviously be the individual initiating, but are there situations you are familiar with where the Crowns have actually initiated that, whether it’s indigent individuals or that defence counsel may not know about or sufficiently understand those provisions?
Mr. Palangio: Every case is different, depending on what the nature of the evidence is, especially if there has been treatment. The sentencing court will take that into account in deciding what is the proper sentence.
Under this bill, for the first time, there is an ability certainly for provinces and territories that did not invoke the curative discharge provisions. About 70 to 75 per cent of the Canadian population did not have that as an available option. Under this bill they would, if there is a treatment program approved by the province they could take advantage of.
Crown attorneys have the discretion to either consent to that or not. That will depend on what the program is, how the person performs in the program, and then, obviously, whatever policies are established by attorneys general across the country.
It’s no different now with the ability of Crown prosecutors, for example, to bind the hands of the judge by filing a notice of increased penalty because it’s their second, third, fourth or fifth offence. That sort of discretion is key to the criminal justice system, which the Supreme Court of Canada has recognized as one of the core aspects of prosecutorial discretion.
Senator Pate: In your experience, have Crowns ever initiated that even though it’s not necessarily part of their responsibility?
Mr. Palangio: I don’t know about initiating it. Normally, a defence counsel or someone acting on behalf of the accused or the accused personally would approach the Crown with a proposal or something of that nature, and then every case is decided on its own.
In the absence of that, there would be no reason, necessarily, for the Crown to take the initiative; but I can’t say it has never happened.
The Chair: Before I have the privilege to thank you on behalf of senators around the table, I would like to come back to the issue of the constitutionality of the random testing because we’re the Legal and Constitutional Affairs Committee.
As you know, when the courts of justice are seized with an issue of constitutionality, sometimes they read our debates and the testimonies that we hear. I would like to get from you, as much as you can, an answer to the major issue in relation to random testing.
Section 8 of the Charter on search or seizure is pretty clear:
Everyone has the right to be secure against unreasonable search or seizure. Then, of course, there is section 1 on the reasonable limits in a free and democratic society.
I think it was Senator Batters who referred to your testimony, Ms. Pentz or Mr. Bryant, in relation to section 1. It is the old test, the three questions the court will be invited to check in relation to what is reasonable. They will test the objective. They will test the means, and they will test the proportionality.
Could you answer very quickly, in your own way, what would be your way to save random testing in relation to the three criteria that the court will apply to conclude that the bill is constitutional?
Ms. Pentz: I don’t think I could, sir. I may be forced to at some time; but at this point in time and on behalf of the CBA, our position is that it is not constitutional. We view this type of random sampling without any rationale or reason to clearly violate the Charter.
The Chair: Mr. Bryant, would you dare to answer?
Mr. Bryant: The same position. I couldn’t offer an amendment. This is an alternative to the status quo, and the status quo represents a more closely tailored and proportionate effort to apply section 1.
Therefore, I don’t see what could be between no cause and no warrant and having some reasonable and probable cause. Maybe a little reasonable and probable cause would be better than mandatory and random testing.
The Chair: I thank my honourable colleagues and all of the guests who appeared today in our first panel.
I will ask you to leave the table as fast as possible because we are already late and we still have a group of four guests to testify. If you can be quick, I would appreciate it.
It’s my pleasure to welcome from the Criminal Lawyers’ Association, Michael Edelson, Member and Lawyer, Edelson and Friedman LLP, and Leo Russomanno, Ottawa Director and Lawyer. You’re familiar witnesses around this table. It’s a pleasure to welcome you today.
Also with us from the Canadian Council of Criminal Defence Lawyers, Adam Steven Boni; from the Indigenous Bar Association, Josephine A. de Whytell, Barrister and Attorney-at-Law; and from Aboriginal Legal Services, Jonathan Rudin. You know the procedure. I don’t need to explain it to you.
I would like to open the afternoon with either Mr. Edelson or Mr. Russomanno. You have five minutes for your presentation. Stick to your points, and then the discussion will allow you ample opportunities to come back on some other issues.
Michael Edelson, Member and Lawyer, Edelson and Friedman LLP, Criminal Lawyers’ Association: I do not intend to repeat the many critiques concerning the weaknesses, legal pitfalls and constitutional issues surrounding the new legislation. I’ll outline my views on behalf of the CLA and personally as a defence counsel and someone who has handled more than a thousand drinking and driving cases over the past 40 years.
My approach will be to focus on the practical implications of the new legislation on the lives of accused persons, witnesses, victims and the courts.
According to the legislative summary issued by the Library of Parliament, a statistical analysis notes that alcohol is responsible for 96 per cent of impaired driving cases, albeit between 2009 and 2015. The drug impairment proportion has doubled in that time frame from 2 per cent to 4 per cent.
With the advent of legalization of marijuana or cannabis and the increase of DRE officers and, ultimately, devices capable of providing readings admissible in a courtroom, these figures are expected to grow exponentially. This will have a significant impact on the criminal justice system.
In 2014 to 2015 impaired driving offences accounted for 10 per cent of all of the completed, and I underline the word completed, criminal court cases. This was a decrease of 11,355 compared to the previous year. In that year, 79 per cent of impaired driving cases resulted in a finding of guilt. This is considerably higher than the average across any other cases in the criminal justice system, which is 63 per cent.
In 9 out of 10 cases, the penalty was a fine plus the usual ancillary order such as suspension and prohibition. Imprisonment was imposed in approximately 10 per cent of all of these impaired driving cases.
The new legislation, let there be no mistake, will significantly change the statistics relating to the number of cases in the courts which will go to trial. There is a real likelihood that the number of alcohol/drug-related driving charges will increase and further burden our legal system.
The goal of Bill C-46 is not to eliminate drinking and driving. It is designed to make it easier for prosecutors to prove their cases, and that is a fact. Long-standing findings in the courts, such as bolus drinking issues, et cetera, are being abolished.
We also have a very significant concern about the practical legal and scientific issues surrounding DRE standard field sobriety testing in drugs. In particular, the experience in the U.S. courts, as well as issues relating to the credibility, credentials, proper performance, and accurate observations and opportunities for the base rate fallacy to occur, cause us great concern.
My legal colleagues and I have dealt with innumerable files clearly illustrating the havoc on our highways caused by drinking and driving: the injuries, the death, the grief and the sorrow. We have seen it all close up.
Previous iterations of legislative changes in this area have spawned massive numbers of trials and appeals not only challenging the constitutionality of amendments and new provisions, but the science associated with them.
I would like to point out several things. This will do nothing to stop drinking and driving. That is a reality. This legislation, if intended to achieve that goal, is an abject failure. It will not do so.
There will always be large numbers of drinking and driving cases unless other steps are taken legislatively to deal with this situation. Two fundamental changes could achieve this goal, opening up courtrooms to deal with other charges, creating more time for other criminal matters to be dealt with by the courts and then, if that change were made legislatively, we would see the parameters in Jordan no longer in jeopardy.
The administrative driver’s licence suspension regimes, some of which we are now seeing grow up such as in B.C., may be one solution to save our courtrooms and our resources, to be used otherwise.
In short, let me give you one example of the practicality of these issues, which has been the subject of most of the questions. It is RBT or random breath testing.
We usually have about 250,000 roadside checks in Ottawa. Keep in mind that the number of criminal charges for impaired or drinking and driving offences is usually about 0.1 per cent. If 250,000 people are stopped, approximately 250 people will be charged. Those are remarkably low statistics that we have seen in the past.
We have to be very cognizant that the courts have permitted random stops. That is a fact. We went through a lot of constitutional litigation to arrive at that point. They have created a Charter-free zone during the period you are stopped. You do not have access to legal counsel unless you are stopped for an overly long period of time.
Consider random breath testing. People have talked about reasonable and probable grounds. That has never been the test for random testing at the roadside. It’s a very low threshold: reasonable suspicion that you have alcohol in your body. It’s a very low threshold as it exists today.
Here is the real problem, then. If we have this situation where people are in a conga line of cars at a roadside stop and every single one of them will be randomly tested, you will have a right to counsel problem at this point under section 10(b) of the Charter, because the longer the time that passes, the more compelling is the basis for arguing in court that the right to counsel was denied.
Section 10(b) has not been implicated in the random stop, which is a totally different element either under section 8 or 9 of the Charter. I just hold out that proposition for your consideration of the very serious issue of RBT.
Adam Steven Boni, Representative, Canadian Council of Criminal Defence Lawyers: The Canadian Council of Criminal Defence Lawyers was formed in November 1992 to offer a national voice and perspective on criminal justice issues. Our council represents the views of defence lawyers from coast to coast.
I come to this hearing with approximately 25 years of experience in criminal law, first as a federal prosecutor for the then Department of Justice and now as a defence counsel.
I have had an opportunity to review the excellent briefs that have been filed by the Canadian Civil Liberties Association, the Criminal Lawyers’ Association and the CBA. I commend those briefs to you. They articulate and outline in an incisive way all of the Charter nerves that have been set tingling by this proposed legislation.
There are problems under section 8 of the Charter, section 9 of the Charter and section 10(b) of the Charter, as my colleague Mr. Edelson has explained. There are problems with the right to a fair trial and overbreadth. I am not going to repeat those.
I want to give two points, about the impact of this legislation on the ground. The first has been stated but I want to make it a bit sharper in focus. This legislation contains so many constitutional defects that when it hits on the ground level in provincial courts across the country there will be constitutional challenges and Charter challenges to multiple sections. Whether it’s on a basis of overbreadth, the violation of section 8 and section 9, or the minimum mandatory sentencing provisions, we will have a very large amount of Charter litigation.
What does that mean at the ground level? It means you will have different provincial courts across the country starting to consider the same issue and arriving at different opinions because, of course, reasonable people can differ. Then those pieces of legislation will work their way up through the superior courts or the courts of Queen’s bench to the courts of appeal. You will end up with a period of time when you will have different interpretations of the same law across different jurisdictions in Canada. Then it will go to the Supreme Court of Canada, and that will take years. All the while, senators, you’re going to have hundreds of thousands of cases being jeopardized for delay. Cases will be lost on delay.
What does that mean on the ground? On the ground, to the Canadian public, it means that our criminal justice system is broken. It’s not working. This undermines respect for the law. This undermines respect for the administration of justice. I have yet to hear a compelling argument put forward as to why all of these changes are so important, must be made and are necessary. I haven’t. That’s the first point I want to make.
The second point I want to make relates to RBT. In Canada, we have a selective breath testing that has worked for many, many years. Now the proposal is mandatory roadside breath testing. As my friends at the CLA have poignantly articulated, there are issues under sections 8, 9 and 10(b).
Senators, you have raised a good point about proposed section 1 and the debate as to whether or not the law can be upheld under that section. The opinion of Professor Hogg has been expressed. Reasonable people can arrive at different opinions that are reasonable.
Let’s assume Professor Hogg is right. Let’s assume the legislation on the RBT passes constitutional muster by the skin of its teeth. When a legislation has to be saved under section 1, it does pass constitutional muster, just barely.
Let’s assume that. What is the impact on the ground to ordinary Canadians? This is a point that Mr. Bryant alluded to but didn’t have the chance to develop. I want to raise this.
I have lived and worked in the Greater Toronto Area all of my life. The Greater Toronto Area is now home to well over six million Canadians. According to the 2016 census, 48.8 per cent of GTA residents identify themselves as visible minorities. In Toronto proper, that percentage goes up to 51.5 per cent.
The experience in our city has unfortunately demonstrated that random detention and search powers are too often exercised in a targeted way that disproportionality impact racialized Torontonians. You are all aware of the work done by people like Desmond Cole in Toronto in relation to carding. You are all well aware of the tension and the stress on police/citizen relations in Toronto that carding caused.
Our concern is that the random breath testing in Bill C-46, even if it is declared constitutional, will have the same impact and will further widen the divide between the police and racialized and marginalized groups across the country, especially in communities like Toronto.
This isn’t a theoretical argument. I commend to you an opinion piece in The Globe and Mail written just two days ago by Marci Ian, a well-known CTV news personality. Who doesn’t like Marci in the morning? It’s entitled: “The double standard of driving while black in Canada.” In that piece she describes the pain, the frustration and the sense of injustice that she herself has experienced as a Black female motorist who has been stopped and questioned by police three times in an eight-month period outside her own home. That’s just stopping and questioning.
Ladouceur from the Supreme Court of Canada authorized that a long time ago. We’re not talking about mandatory breath testing. We’re not talking about removing somebody from their vehicle, questioning them, demanding a breath test and looking around the vehicle.
This is the reality on the road in the GTA and in other areas across the country. I am sure my friends to the right of me will have a lot to say about the impact on Aboriginal and Indigenous Canadians.
The Chair: Can you please conclude?
Mr. Boni: My conclusion is this: Let’s not get hung up on whether or not this will pass section 1. Let’s assume for the sake of argument that it does. My question is: Will the resultant impact on communities enhance respect for the police and enhance respect for law in the country, or will it do the exact opposite?
Josephine A. de Whytell, Barrister and Attorney-at-Law, Indigenous Bar Association: I am an honorary member of the Indigenous Bar Association. It is my pleasure to be here to provide submissions on behalf of the association.
The Indigenous Bar Association foresees constitutional challenges arising from the proposed legislation on the basis of racial profiling, the erosion of the presumption of innocence and socio-economic factors. In turn, this can be expected to cause delay and may cause further harm to the relationship between Indigenous peoples and the police.
The prohibition of recreational marijuana must not lead to a spike in dangerous or impaired driving. Road users and pedestrians alike must continue to feel adequately protected by the government’s countermeasures to ensure their safety.
As a meaningful objective, it must be no less important to ensure against overpolicing of Indigenous and other marginalized peoples whom these amendments to the Criminal Code may disproportionately affect. There needs to be a harmonious balance between protecting all Canadians and not unfairly criminalizing identifiable groups of other Canadians.
Canada is a patchwork of unified but extremely diverse peoples. To move together toward a unified goal of road safety, everyone needs to feel they are protected by this legislation and those enforcing it.
The Indigenous Bar Association has some concerns that the proposed amendments encourage police officers to pre-empt or assume infractions for impairment at any lawful stop. It gives police officers the authority to enforce mandatory compliance with their demands, demands for which they have unfettered discretion.
If the goal is to deter road users from driving in an unsafe manner, the prevention of impaired driving offences could also be achieved without encroachment upon Charter rights through positive socio-economic action and improvement in social services, access to health care and rehabilitation centres, as well as access to affordable public transport.
The Indigenous Bar Association wishes to focus these submissions on part 1 of the proposed amendments, given the adequate submissions with respect to impaired driving made by other people.
The proposed section 253(3) creates three new offences on the basis of blood drug concentration and sets per se limits with respect to the quantity of a drug that is of such concentration that impairment is presumed. The correlation between blood drug quantity and impairment is not scientifically proven particularly in the case of marijuana. In fact, frequent users may show no signs of impairment whatsoever when having a high blood drug quantity that might significantly impair a non-frequent user.
This is not a small discrepancy. It has the potential to unduly criminalize a large number of frequent marijuana users. Even if acting responsibly within guidelines provided by Health Canada, a medical patient would potentially have to refrain from using their medication for an unknown period of time, maybe even up to a week, just to be able to drive their car without fear of criminal repercussions for being mistakenly identified as impaired.
Without some type of defence for frequent users of marijuana, the per se limits will have a grossly disproportionate effect without necessarily achieving the object of road safety. Even with a defence for frequent users, that may still not go far enough to protect Indigenous frequent users of marijuana.
In the First Nations Child and Family Caring Society case in Canada, the Canadian Human Rights Tribunal relied on findings of Dr. Amy Bombay, a neuroscientist who studied the impact of colonialism on Indigenous peoples and found evidence of collective trauma suffered by Indigenous peoples in Canada.
The upcoming legalization of marijuana recreationally will have the side effect of providing widespread access to a natural, effective medicine. Marijuana is particularly useful for treatment of trauma-related symptoms, including chronic pain, post-traumatic stress disorder, panic disorder, anxiety and depression.
While there is little research on Canada’s Indigenous population and the consumption of marijuana, a 2014 Ontario study noted that Indigenous peoples have rates of marijuana use significantly higher than that of the general population.
Although Indigenous peoples across Canada are extremely diverse in respect of their beliefs, laws, practices and customs, powerful herbs, roots, herbs and other medicines have been used in combination with ceremony since time immemorial. Indigenous peoples have maintained their own ways when it comes to healing that are not regulated by non-Indigenous laws or institutions.
The availability of legal marijuana will add an additional ingredient to the host of traditional herbs already being used across Canada to treat Indigenous peoples outside the context of western medicine. In particular, it will be a viable alternative to opioids.
Given the greater need for symptomatic relief among Indigenous populations that could benefit from marijuana, an offence that appears to disproportionately target users of cannabis would do so considerably more against Indigenous medical patients.
It is foreseeable that the lack of equal access to health care, the use of traditional Indigenous medicines and purchase of marijuana through the recreational market to avoid exorbitant prices will lead to Indigenous frequent users of marijuana.
The Chair: Can you conclude in 30 seconds?
Ms. de Whytell: Certainly. One need only turn to the cases involving implementation of Gladue principles in bail courts to see the denigration of the presumption of innocence in respect of Indigenous accused. Given that circumstance, the disproportionate impact can be foreseen with respect to Indigenous peoples.
Jonathan Rudin, Program Director, Aboriginal Legal Services: Aboriginal Legal Services was previously known as Aboriginal Legal Services of Toronto. Since 1990, we’ve been active in providing services to Indigenous peoples before the law in many areas, in law reform and in test case litigation.
I have appeared before this committee before and have appreciated the reception and seriousness with which the committee approaches its work.
Our Ojibwe name, given to us by Elder Jackie Lavalley, is Gaa Kina Gwai Wabaama Debwewin, which translates as “all those who seek the truth.”
Our concern today will focus on one section of this bill alone because many of the other issues have been addressed. Our concern is with subsections 320.23(1) and (2). Those are the sections that deal with delay of sentencing and avoidance of the mandatory minimum.
Subsection 320.23(1) says:
The court may, with the consent of the prosecutor and the offender, and after considering the interests of justice, delay sentencing of an offender who has been found guilty of an offence under subsection 320.14(1) or 320.15(1) to allow the offender to attend a treatment program approved by the province in which the offender resides. If the court delays sentencing, it shall make an order prohibiting the offender.
Subsection (2) says that if the offender successfully completes the treatment program, the court is not required to impose the mandatory minimum penalty.
This section replaces the current curative discharge provisions that are replaced in the Criminal Code for those convicted of impaired driving. In one important respect, this is an improvement over the curative discharge section because it applies across the country. It addresses the serious problem that some provinces currently allow curative discharges and others don’t.
However, we have two serious concerns with the provision. The first is the way the section is currently written. To avoid the mandatory minimum sentence, the person has to enter “a treatment program approved by the province in which the offender resides.” If a province chooses not to approve a treatment program or approves only a few treatment programs, access to this provision will be illusory.
Indigenous treatment programs funded by the federal government do not automatically qualify within this reading. In fact, some provinces may choose not to recognize those as treatment centres.
Further, if a person wants to attend a program particularly relevant to their needs, and that program is not in their province, that doesn’t assist them either.
Why should entry into a therapeutic program that might address the root causes of a person’s addiction have to be one formally approved by the province?
Second, the amendment only allows those the Crown approves to be exempt from the mandatory minimum. We see no justification for that and find it extremely problematic.
If the offender consents and the judge feels the program is appropriate and would be a fit sentence, why should Crown consent be necessary in order for the person to enter the program? If the Crown doesn’t believe the exemption is the right idea, they can make submissions to the court as they do in other cases; but the determination of a fit sentence should remain with the judge. Crowns should not have veto power.
Why does Aboriginal Legal Services care about this issue? A 2011 report on impaired driving in Canada noted that impaired driving was not only the most common offence in adult courts in Canada. It also found, in jurisdictions that provided detailed data on Aboriginal identity, that Aboriginal people accounted for 3 per cent of the overall population but 16 per cent of the admissions to custody in correctional services for impaired driving. We’re concerned about Aboriginal over-representation in prison. We know you are concerned about this as well.
The treatment option contained in section 320.23 can help alleviate the problem, but it won’t work if the Crown controls access to the program. If treatment makes the most sense for the offender, it should not be up to the Crown as to whether the person can enter the program.
The 1991 Aboriginal Justice Inquiry, in Manitoba, chaired by Senator Sinclair, found the exercise of Crown discretion rarely works in favour of Indigenous peoples in the country.
The Supreme Court of Canada, in the Anderson case, said it is not possible to challenge the exercise of Crown discretion under the Charter. What they said was that you have to challenge the legislation which allows for that Crown discretion.
We’re prepared to do that and we will do that, but why bother? It’s not necessary. The Senate should amend that section 320.23 to take away the requirement of Crown consent to enter into a treatment program. All that needs to be done is to take out the words “of the prosecutor” in that section.
We would also recommend that the words “approved by the province in which the offender resides,” following the words “treatment program” in subsection (1), should also be removed.
If someone finds a relevant treatment program, they can show a judge will address their needs, why should it matter what the province thinks of that program? It’s totally irrelevant.
If these small changes are made, we feel the amended section will actually be able to fulfill the promise it holds out. Meegwetch.
Senator Dupuis: Mr. Rudin, with regard to section 320.23, I quite understand your proposal regarding withdrawing the consent of the Crown attorney. However, will that of the accused individual stand? In other words, do you believe that this should be left up to the court, or do you think that the consent of the accused is essential if the court is to be able to exercise its discretion?
Mr. Rudin: Thank you for the question. Yes, we believe that obviously the offender needs to consent. We don’t want judges to send people to treatment against their will. That doesn’t work.
Our concern is to take out the issue of the consent of the Crown, but the consent of the offender would, of course, still be essential.
Senator Dupuis: My next question is addressed to the defence attorney representatives. With all your years of experience, you probably are more aware than we are of the scope of the adjustments that have been made involving the law, the courts and defence and prosecution attorneys, before jurisprudence was solidly established for driving under the influence of alcohol.
You referred to the fact that there may be many court challenges. There is clearly a social cost, and an immediate benefit for defence lawyers. In your opinion, what would allow us to reduce that social cost? This would reduce your benefits by the same token, so the question bears raising. In other words, we’d like to understand what you would consider the best way. We are going from zero tolerance to limits as such, or to no limit, or to another solution you might have. Could you enlighten us?
Leo Russomanno, Ottawa Director and Lawyer, Russomanno Criminal Law, Criminal Lawyers' Association: In spite of the fact that it may hurt us, here we are saying that you should not introduce this legislation or these amendments.
That really is a policy choice, and I say this as my personal opinion. There are ways to use existing technologies, such as the interlock device, combined with zero tolerance. If you truly want to go after impaired driving and prevent the problem from happening, you could explore those options rather than just making it easier to prosecute.
Given the statistics provided by Mr. Edelson with respect to impaired driving, I don’t think it will get much better than that, and you will have all the social costs you mentioned. It’s not an original idea of mine, by the way. It’s something that jumps out at you when you read these amendments. I don’t think they will do anything to prevent the crimes from occurring in the first place.
Mr. Edelson: I agree with those comments. We could simply outlaw drinking and driving. There are ways to do it that would be effective. Half joking among our colleagues at the defence bar, we see this as a Christmas/Hanukkah present.
This litigation will go on for a decade. I’ve been through it on a number of occasions since 1977 when I was called to the bar. I was there pre-Charter and got to see how difficult it was to defend these cases pre-Charter and then post-Charter, with all of the challenges mounted with respect to not just drinking and driving law, but search and seizure relating to drugs, et cetera.
The only real solution, to answer your question, in that context is zero alcohol in the body of any driver in the country and methods to make sure that can happen, such as biometric ignition. This is on the way. It’s coming soon. They’ll be able to do a blood alcohol test with your fingertip on the starter button of a motor vehicle. Then interlock devices in every vehicle.
Otherwise, if you just have zero alcohol, people will drive anyway with alcohol. We know that. They’ll take a chance. We see it all the time in our practices. If you have zero alcohol and on every original equipment manufacturer’s vehicle you have an interlock device, whether it’s biometric or they have to blow in it like the present devices we’re seeing. Until there’s better technology, science or self-driving cars, we will have this problem. It’s not solvable with this legislation.
This legislation exacerbates the problem from the perspective of our courts and the time-consuming nature of these challenges, as my friend, Mr. Boni, quite accurately argued. We had different decisions in different courts in the country in each Court of Appeal, which then had to go up to the Supreme Court to be resolved. These take three years, four years or five years to resolve in each specific issue, and there is a plethora of issues here.
The Chair: We have many senators, and I see the clock ticking.
Mr. Boni: I have nothing else to add. My friends have spoken eloquently.
Senator Boisvenu: I think that this bill is going to make the legal system more complex, in a very big way. Several witnesses have told us that rather than freeing up our courts, this legislation will cause more complex bottlenecks.
Mr. Boni, you spoke a lot about court challenges. As opposed to other places like Ireland, where they have already included acceptable levels of consumption in legislation, here we have given the minister the power of doing that through regulation. In your opinion, will that power be debatable from the constitutional perspective?
Mr. Boni: I am concerned about whether or not it will be evidence based. As one of the senators appropriately cast it, I think the concern is that the law is ahead of the science. If the evidence isn’t there to make this rational and if the standards aren’t available to determine guilt and innocence upon, how can it possibly survive Charter scrutiny?
Yes, there’s a huge lag between science and the law.
Senator Boisvenu: For the defence lawyers and crown attorneys, what would the most logical avenue have been to set a consumption threshold? It was easier before because we had zero tolerance. But now we want to bring in a threshold. In order to avoid bottlenecks in our courts, what avenue would have been the most practical to determine that level?
Mr. Boni: I don’t have confidence that the way it’s being done by this legislation will avoid our court systems being clogged up. I don’t have the answer to that.
Part of the problem is that we don’t have clear answers based on the science. Proceeding in this way, unfortunately, as this legislation does, invites all kinds of difficulties in the courts.
I don’t know if Mr. Edelson has a comment.
Senator Boisvenu: You said that the arrival of self-driving cars would solve the problem.
Senator Dupuis: Not if people whose faculties are impaired are behind the wheel.
Senator Carignan: I’d like to follow up on Senator Boisvenu’s question. I’m wondering about this and I don’t have an answer. Can a criminal offence be included in regulations that would be amended by the governor in council, without that offence being present in the act or in the Criminal Code? I’m wondering about that and I don’t know. I have rarely seen a criminal offence where the actus reus was created by regulation and was not in the law. Is there not also a jurisdictional issue on the very principle of creating a criminal offence by way of a regulation?
Mr. Edelson: We have to distinguish between the actus reus, which is the taking of the drugs or smoking marijuana, and what the level the government establishes through regulation may be the threshold for criminality.
The act is the same. You’re smoking marijuana. Similarly, the act is the same when you’re drinking your cocktails or shooters at the bar. The offence is being either impaired to any slight degree by alcohol or by a drug with respect to your operation of a motor vehicle. The drug need not be marijuana. There are many people using drugs. There are people mixing the two. You can mix Benadryl and alcohol, and you’ll be falling over.
These are serious considerations, but I understand your concern. This is a bit of a guinea pig period when it comes to drugs and prohibition through driving. We really don’t know how it will play out, unfortunately.
People have tolerances. I’ve acted for a woman at 300 milligrams picking up her child at daycare, showing no signs of physical impairment. We see this all the time. People have very high tolerances for alcohol if they’re alcoholics, typically. Similarly, a lot of smokers of marijuana develop significant tolerances.
Forget about legal marijuana for the moment, but certain strains of marijuana have much higher THC levels. When I was in university, the marijuana THC level was around 5 per cent. Now it’s up around 14 per cent or 15 per cent some of the time.
I agree with you that we’re dealing with some variables here that are very hard to manage. Quite frankly, I think the new drug impairment legislation will be the most fruitful area for litigation because of all of these problems. It will last for many, many years.
Mr. Boni: Just to add very briefly, the fact that it’s being prescribed by regulation as opposed to being stated in the statute, in my view, is a concession that the government doesn’t know.
We all know it’s much easier to change regulation than a statute. It’s a concession that the science is unclear and the government is playing it as it goes along. That’s not the way that legislative changes should be made, with the greatest of respect.
Senator McIntyre: Thank you, Mr. Edelson, for raising the interlock device issue. As a matter of fact, I raised it with the first panel a while ago.
I have two questions. One has to do with timelines, and the other one has to do with terminology. A number of timelines have been extended in Bill C-46, for example, proof of blood alcohol concentration within two hours of operating a vehicle instead of at the time the accused was driving, which I think is important, and then eight hours to get a warrant to take a blood sample where a person is unable to consent instead of before.
I would like your thoughts on that amendment, and then I will ask you a short question on terminology. Mr. Edelson, do you care to go first?
Mr. Edelson: I don’t know if you are all familiar with the bolus drinking concept that is being addressed in the legislation. We would see, for example, people at a bar snapping back shooters. Five minutes later, they’re stopped by the police. That alcohol has not been absorbed into their system yet. However, by the time they get to the station an hour or an hour and a half later, their BAC is reflecting the drinks they had at the bar.
This legislation seems to have a purposeful approach to essentially tell people, “We’re outlawing bolus drinking. Don’t ever do that because this two-hour limit will catch you at the end of the day.”
What I can tell you is that I probably had out of those thousand cases fewer than 10 where there was ex post facto bolus drinking. In other words, the person runs home and is knocking back the scotch knowing the police are on his trail, versus the bolus drinking at the bar when you’re snapping back the last few scotches, get in your vehicle knowing you’re only five minutes from home, and you are stopped by the officer who is sitting across the street in the shopping plaza, watching you leave the bar.
Your BAC at the time of the driving, which is what we’re supposed to be outlawing here, would not be over the limit. What it does is prevents us from calling experts now, essentially, to establish evidence to the contrary. That’s a problem because you will effectively be seeing people who are factually innocent found guilty.
Senator McIntyre: I will go to my second question because of time. Bill C-46 amends the terminology currently used in the code. In its legislative background, the government will argue that one of the objectives is to reduce the complexity of the law and use simpler, more modern language without changing the meaning.
For example, “forthwith” will change to “immediately.” The term “conveyance” will be used to refer to any motor vehicle, vessel, aircraft or railway equipment, and the definition of “operate” will now incorporate the concept of care and control.
Do you have concerns about any of the proposed changes in the language used?
Mr. Edelson: I don’t because all it’s doing is incorporating into the new legislative lexicon what the courts have already determined. For example, how can you operate a motor vehicle without being in care and control of a motor vehicle? You can be in care and control of a motor vehicle without operating a motor vehicle. That’s the key differentiator.
The Court of Appeal in Plank established that many years ago. These are all operating elements that we have been living with for many years now, which are simply being established in the legislation.
Another comment I should make is that we have clients sit across from us in our conference room all the time who have no clue what the law is, none, that they have been alleged to have broken. They ask, “What do you mean? That can’t be possible.” These are the kinds of responses we get all the time.
Now the law will be so complicated that I am reading it four times to try to figure out what this new legislation is about, and I’ve been doing this a long time. Joe Q. Citizen will read this. They will not have a clue what some of these provisions actually mean, not a clue. Yet, they are presumed to know the law. Good luck.
Senator McIntyre: At least the terminology is one good amendment.
Mr. Russomanno: I still don’t know what “conveyance” means.
Senator Batters: In five years of sitting on this committee and with dozens of criminal bills that the previous Conservative government brought to this committee, I’ve never heard such a damning constitutional indictment as that delivered today by Mr. Boni from the Canadian Council of Criminal Defence Lawyer who said that all of the Charter nerves had been set tingling, that it would violate sections 8, 9 and 10(b), and referred to the problems with overbreadth, et cetera, et cetera.
If I were sitting on the government side, after hearing all of that, I would be highly concerned about the chaos that this bill could unleash on our criminal justice system and our Canadian court delay crisis right now.
I would like to hear from Mr. Edelson, or perhaps Mr. Russomanno because we haven’t seen you for so long. We used to see you monthly. I would like to hear about your Oakes test analysis, particularly because I found it interesting that Professor Hogg’s analysis was based on 2010 evidence.
Mr. Russomanno: Briefly, with the Oakes test I think the biggest problem, as Mr. Edelson has highlighted, is with the suspension of the right to counsel having been deemed a reasonable limit in the law as it exists now mainly for two reasons. First, the detention can be truly random and the right to counsel suspended because that stop has to be tailored to Highway Traffic Act reasons, such as mechanical fitness of the vehicle, licence and registration, and sobriety of the driver. Second, the detention is relatively brief. That’s really what Mr. Edelson was getting at in that you will not have brief detentions anymore when you’re stopping people and adding to your standard questions relating to mechanical fitness of the vehicle, sobriety, and checking the registration. Now you will be waiting for an approved screening device to arrive at the roadside. You will have a lineup of vehicles, potentially, and the right to counsel will be suspended for all of those detained motorists and, theoretically, for the occupants of the vehicles. I find it difficult to understand how a section 10(b) violation will be deemed a reasonable limit in those circumstances.
In terms of the implications of this bill, what Mr. Boni was getting at was that the Supreme Court has recognized for every Charter breach that comes to the court’s attention there are multiple other Charter breaches that never get there because there are no charges laid. There’s still a societal cost to the violation of individual rights. Random breath testing has such a potential impact on those vast numbers of individuals, many of whom are racialized, being subject to prolonged detention and prolonged suspension of their right to counsel.
If I could interpret Mr. Boni’s remarks in part, there’s such a concern because impaired driving constitutes a vast number of police investigations and charges before the court and because random breath testing has a significant impact as well.
Senator Batters: I need to make a very brief point to Mr. Rudin. I appreciated the excellent point you made about the treatment program amendment you would propose. I find it really unfortunate as it is right now.
Sometimes the very best treatment programs that are very helpful for getting over your addiction may be in a different province. I come from the province of Saskatchewan. We have limited addiction programs there, but if you go to a place like B.C., as many people in Saskatchewan do because they have some really good treatment programs there, the fact is that you might not be eligible is unfortunate.
I think the government should consider that.
The Chair: For your population in Saskatchewan.
Senator Batters: Absolutely, definitely, yes.
It’s too bad we don’t have more time with you.
Senator Pate: Mr. Rudin, I was interested to hear your recommendation. I was curious as to why you didn’t suggest it be more broad and not just available to the current provisions.
Mr. Rudin: As an organization we have been fighting against mandatory minimums constantly, so I was leaving that discussion aside.
I don’t mean to suggest that we approve of mandatory minimums, or that they are a great idea, because we don’t. However, given everyone else you are hearing from, given that this bill allows for that and given that there is, on some level, more consensus on mandatory minimums as related to impaired driving than there is for some of the others, we wanted to focus on this provision.
I don’t know what will happen, but if the bill gets through small things could be done to make a change. I don’t mean to suggest that we’re waving the flag in favour of mandatory minimums.
Mr. Russomanno: It’s important to point out the availability of a discharge under section 730 is still prohibited. Even though it’s a back door to get around the minimum, there is still a floor or a minimum that precludes the availability of a discharge for a person who wants to avoid the consequences of a criminal conviction.
The Chair: That’s a major problem.
Thank you very much for attending and for your contributions this afternoon. I apologize again for keeping you waiting. We will certainly keep your advice and remarks for our own consideration. They will be helpful in the way this bill will proceed later on.
(The committee adjourned.)