THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Thursday, March 1, 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 10:30 a.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
The Chair: Good morning, honourable senators. It’s my pleasure to welcome you to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs of the Senate of Canada.
Welcome, also, to our two guests this morning.
As you know, 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 are continuing our study of Bill C-46, which seeks to amend the Criminal Code in order to crack down on driving while impaired.
This morning, we have the pleasure to welcome Ms. Kyla Lee, Lawyer, Acumen Law Corporation; and Ms. Sarah E. Leamon, Criminal Defence Lawyer, Acumen Law Corporation.
Welcome to both of you. I understand you will have a presentation, and then we will have a free discussion with the members around the table. Which of you wants to start?
Sarah E. Leamon, Criminal Defence Lawyer, Acumen Law Corporation: We’ll leave it up to you.
Kyla Lee, Lawyer, Acumen Law Corporation: I can go first.
The Chair: You put me in a very difficult position. Ms. Lee, you have the floor.
Ms. Lee: Thank you for inviting me here today to address this legislation. By way of background, my name is Kyla Lee. I’m a criminal defence lawyer practising in Vancouver primarily in the area of impaired driving law. I deal not only with criminal impaired driving offences but also with British Columbia’s immediate roadside prohibition scheme, the administrative licensing suspensions for impaired driving-related incidents.
I have a lot of training in the area of impaired driving law. I have been trained in standardized field sobriety testing as well as drug recognition evaluations. I have lectured internationally on impaired driving offences and have appeared before the Supreme Court of Canada in relation to the immediate roadside prohibition scheme.
Some of the major concerns I have with Bill C-46 relate to the mandatory breath testing component of the legislation. It is my view that these provisions of the proposed legislation violate section 8 of the Charter. They permit police officers to conduct completely arbitrary testing of individuals for bodily samples.
They are particularly problematic because they present the opportunity for police abuses of their authority through racial profiling and targeted traffic stops, which for me, as a Metis person, is of very particular concern. We have, of course, seen numerous studies across this country of police using their power to randomly stop individuals in a way that generates racial profiling. Those provisions of the legislation are particularly troubling.
I also feel that the legislation will tie up the courts and cause significant delays, not only because there will be Charter challenges — and when I say there will be Charter challenges, this is a guarantee — to these provisions that allow for random testing, but also because the mechanisms that have been set forth in the legislation to allow for the process of the trial are going to lead to further applications that tie up the courts.
I understand my colleague, Ms. Leamon, will be addressing some of the disclosure-related applications.
One application I wish to address is in relation to cross-examination of the breath technician or the blood technician who took the blood samples in a case of blood impairment. Under those circumstances, right now under the Criminal Code a person has the ability to ask the court for leave to cross-examine the technician, and that leave is almost always granted.
Under the proposed changes to the legislation, individuals will now have to make an application with 30 days’ notice to the Crown and the court that they wish to cross-examine the technician. The Crown will then have 30 days to respond. The application must be in writing, and the accused must set out the proposed basis for their cross-examination.
This is particularly troubling because not only will it essentially add an extra day of court time to any impaired driving trial where cross-examination of the technician is desired, but it will also require the accused in some respects to reveal their hand: their defences in relation to the operation or maintenance of the instrument at the time of the testing and their defences in relation to how the blood samples were taken, the process and analysis of the blood samples. This is inconsistent with the section 7 rights that accused individuals have under the Charter. Those are particularly concerning to me.
Another problem I have identified with this legislation that I think is particularly troubling is with respect to the drug impairment provisions. Proposing a minimum blood THC level of two nanograms per millilitre is very problematic. Not only is this completely unsupported in the science, but the government’s position on why they proposed this is particularly troubling to me. The notion is they don’t believe that two nanograms per millilitre is impairing or that it’s criminal conduct, but the creation of the summary offence to reflect this will require that anybody who is convicted of having a blood-alcohol level at or in excess of that amount will have a criminal record. There’s no opportunity for a discharge because there is a mandatory minimum penalty associated even with the summary offence.
The result is that more Canadians will be left with criminal records. I also predict that because more people will be left with criminal records for something that’s not criminal, the overall stigma in our criminal justice system associated with a criminal record will eventually become decreased, and it will have an unexpected effect on the severity of punishment in other offences and in other arenas. So this bill has the possibility of affecting people coming before the courts not just for impaired driving offences but also for other offences.
I will wrap up my submission by saying that I hope the work this committee does with this bill reflects some of the concerns I have identified. I’m happy to take any questions from the committee.
The Chair: Thank you, Ms. Lee.
Sarah E. Leamon, Criminal Defence Lawyer, Acumen Law Corporation, As an individual: My thanks to the members of the committee for the opportunity to talk to them today about Bill C-46. This is a very important bill that has a lot of implications for the charter, and I’m happy to be here.
I wish to start out by saying I absolutely accept all the objectives in this bill with respect to impaired driving. They are valid and they are necessary, and we do have to reduce the number of collisions, injuries and fatalities that occur each year on our roadways as a result of impaired driving.
With respect, the mechanisms by which the bill seeks to achieve these objectives are problematic, in my view. Some of these amendments may be unconstitutional and even contrary to the proper administration of justice. They may have the unintended effect of ultimately reducing the number of impaired driving convictions obtained due to courtroom challenges and delays.
I will begin by discussing limitations on disclosure. As we know, impaired driving is a highly scientific area of the law that operates on the presumption that instruments and procedures are accurate, but unfortunately that is not always the case.
The Chair: Not too fast, please. The translation is trying to follow you, and I’m sure my colleagues want to get every word of what you’re saying.
Ms. Leamon: I’m sorry. I will slow down.
The Chair: That’s fine. Thank you.
Ms. Leamon: A person accused of a crime does have the right to know the entirety of the case against them, which is embodied in our Charter, and they do require access to maintenance records in order to properly determine whether an instrument was in proper working order. The courts have already ruled that certain historic Breathalyzer documents are necessary and should be provided to an accused.
It is my understanding that this matter is currently once again before the Supreme Court of Canada in the cases of Gubbins and Vallentgoed, and those were heard just last month. That decision is currently on reserve, but it makes one thing clear: this issue is not settled.
This bill does seek to limit disclosure outright, and the rationale for that seems to be to curb delay. But the irony here, in my view, is that this amendment is more likely to contribute to delay than curb it. Defence counsel will be required to make time-consuming applications both orally and in writing in order to obtain necessary documentation. Crown counsel will have to speak to that, and court time will be allotted.
I would suggest that instead we adopt measures similar to those seen in some U.S. states, like Washington, and publish these historic Breathalyzer records online, which will allow for free and easy access by the public. This has been demonstrated to curb delays.
Another issue with this bill, in my view, has to do with roadside testing, both for alcohol and for drugs. As we know, it does seek to establish mandatory breath testing thereby eliminating any reasonable suspicion on the part of the officer. I have heard arguments this is required to save lives and that it will pass Charter compliance.
I have heard the Minister of Justice describe the production of a breath sample as being the same as the production of a driver’s licence. With respect, they are not the same. A breath sample is physically invasive, it is conscriptive evidence compelled from a person for the purposes of self-incrimination, and it is a significant infringement of one’s liberty.
It’s particularly so in circumstances where a person is deprived of their right to counsel prior to embarking on a course of action which may have severe legal ramifications.
I also have concerns, as my colleague does, about how this law will be applied on our roadways. We know there is a real risk that implicit and outright racism could cause visual minorities to be more disproportionally affected. It’s an uncomfortable truth that no amount of in-class sensitivity training will be able to correct for that kind of bias if and where it does exist.
Police officers already have what they need to detect and remove impaired drivers from our roads. They have almost limitless powers to stop vehicles, and the threshold for issuing an ASD demand is very low. Concerns about impaired drivers escaping detection on the roadside are better addressed through more comprehensive police training. They already have the tools necessary to remove impaired drivers, which are in line with our law and consistent with Charter rights.
To close, I will very briefly address the dual standard created for alcohol and drug testing on the roadside. In doing so, I wish that we do not lose sight of the purpose of this bill and the main objective, which, of course, deals with the legalization of marijuana. There’s nothing to indicate that the method, manner or rate at which alcohol is consumed in this country will change as a result of these laws and no reason to expect the prevalence of alcohol-impaired driving will increase.
I’m left puzzled as to why the well-established laws around alcohol are being altered to provide for mandatory screening at the roadside while the same is not being done for drug impairment. It is my understanding that that has to do with technological limitations as we are not confident in the reliability of the devices that are used for drug screening. And only four months out from this bill potentially becoming law, we have yet to select any devices set out in the standards by the Drugs and Driving Committee.
We have also heard time and time again that they do nothing but detect for the presence of drugs in a driver’s system and they cannot detect the level or for impairment. Not only will this dual standard create greater confusion when it comes to roadside police enforcement, but it will also make room for more defence arguments about the reliability of testing procedures at trial as well as pave the way for constitutional challenges.
To close, I do wish to point out the obvious, which, of course, is that constitutional compliance is about striking an appropriate balance between individual liberties and the interests of society. Impaired driving will only be reduced when our laws are constitutionally valid and easily enforceable.
In my view, this bill does not meet its objectives. The bill will be rigorously challenged if it is passed, and I urge you, senators, to take a long look at this bill and provide an essential sober second thought to a law that could become one of unintended consequences.
Thank you. I look forward to answering your questions.
The Chair: I would like to ask Senator Boisvenu, deputy chair of the committee, to open the conversation with our witnesses this morning.
Senator Boisvenu: Welcome to both of you. Thank you very much for your presentations. I have two questions for each of our guests.
My first question is for you, Ms. Lee. You are aware that the federal government has not yet approved devices that will allow police officers to detect whether or not there is marijuana in the saliva of drivers. The approval might be granted as late as April. If we take the training into account, we will be very late into this year. Do you have any concerns about that?
Ms. Lee: I don’t, and the reason I don’t have concerns about that is because there are already mechanisms in place in the Criminal Code in its existing provisions to allow officers to screen somebody for the potential that their ability to drive is impaired by drugs. Those are the standardized field sobriety tests.
While they are not supposed to be used for that purpose, they are, under the Criminal Code, designated for that purpose. So police officers are already equipped with the tools in the legislation to detect drivers impaired by drugs and proceed to make a drug recognition evaluation demand and proceed to do the drug recognition evaluation process, take a blood sample or both.
Senator Boisvenu: Ms. Leamon, my question is to you as a criminal defence lawyer. The current bill provides for a minimum fine of $1,000 for the first offence. This fine does not discriminate between an impaired driver who does not cause bodily harm and one who causes death. Does this situation pose a problem for you as a criminal defence lawyer?
Ms. Leamon: No, it doesn’t.
In the Criminal Code, we have mandatory minimum offences, as we know, and that $1,000 fine is applicable for a first-time offender charged with impaired driving.
The effect of that mandatory fine is that a conditional discharge cannot be granted. A person will end up with a criminal record as a result of that fine. It’s my understanding that that is why it was adopted.
It is a mandatory minimum. Even in situations where no bodily injury and no death are caused, we can see that fine being increased significantly. In cases with aggravating factors like death or bodily harm, we can expect it will be, and we can also expect there will be a lengthy driving prohibition as well as a likely custodial sentence.
When it comes to sentencing, it’s left in the hands of the presiding judge, which, in my view, is in the best interest of society. The purpose of that mandatory fine is to establish that a criminal conviction will be registered.
Senator Boisvenu: With all due respect to the families of the victims, should Bill C-46 not distinguish between the driver who drives impaired and the one who takes someone’s life? In this sense, are we not trivializing the act of taking someone’s life?
Ms. Leamon: I certainly hope that is not the case. I don’t feel that is trivialized at all in this legislative scheme. Of course, causing bodily injury or death is taken as a very, very serious situation, much more serious than being pulled over at a roadblock and having a few drinks over the limit.
Our Criminal Code does reflect that. There are three separate offences for impaired driving, impaired driving causing bodily harm and impaired driving causing death with elevated penalties. I know the scheme does contemplate life imprisonment when it comes to impaired driving causing death. It’s a significant jeopardy and penalty.
I don’t think the fine is something we should be focusing on in terms of how severe the circumstances are. It has a lot more to do with the other penalties, like the custodial sentence and the driving prohibitions that are handed out in relation to the offence.
Senator Dupuis: I have a question for Ms. Lee and Ms. Leamon. Ms. Lee, you talked about your experience with the immediate roadside prohibition scheme in British Columbia. Can you quickly explain its effectiveness or the problems it poses in your practice?
Ms. Lee: The immediate roadside prohibition scheme has caused a lot of problems, and a lot of them were unforeseen. There have been problems with a delay in our courts as a result of the IRP scheme. It’s not at the provincial level where impaired driving cases would normally take place, but it has contributed to delays at the Superior Court level, the B.C. Supreme Court, with judicial reviews and constitutional challenges that have tied up court resources. Currently, there’s a decision on reserve to the third version of the IRP scheme where there are over 300 files case-managed by a single judge. And if the constitutional challenge is not successful, all of those files will still have to be processed on administrative law grounds. It is taking a problem and moving it from one forum to the next.
The other problem we’ve seen with the immediate roadside prohibition scheme has been the deskilling of police officers. It has had a negative impact on the prosecution of impaired driving offences. I get so many criminal impaired driving files that are fatally flawed now because officers can’t distinguish between the procedures for the 90-day roadside suspensions and the criminal investigations, and they make mistakes that cost them the criminal conviction, and they can’t go back.
As for the effectiveness of the scheme, I think it’s very dangerous to rely on the statistics the British Columbia government has touted about the decrease in deaths. There have been other explanations for those, including increased use of seat belts, an aging driving population, and the safety of cars has improved significantly over the past five or six years. In the same time period that we’ve had this legislation, we’ve had other explanations for road safety. As well, the number of immediate roadside prohibitions that are issued every month remains steady, which suggests that people aren’t changing their behaviour on the roads. There may be fewer deaths, but there are still the same number of people out there who are driving with an elevated blood alcohol concentration.
Senator Dupuis: Ms. Leamon, your first recommendation is to increase public awareness of the dangers of impaired driving.
I am particularly interested in the second recommendation, which is:
To bolster visible enforcement strategies to combat impaired driving.
Can you tell us a little about what you mean by this sort of strategy?
Ms. Leamon: Absolutely. Specifically what that means is that we need to have more visible enforcement on the road when there are key impaired driving times. We know that impaired drivers tend to drive during a particular time of the day, usually between 11 p.m. and 4 a.m., and it tends to occur in rural areas more frequently as well.
Police officers and police detachments do need to identify those key times and key areas, and they should be creating more visible enforcement, more marked police units on the streets, more roadblocks, in order to visually deter people.
There is a study cited in our joint brief that discusses how visible enforcement actually has a much better impact on young drivers, particularly when it comes to deterring them, than changes in the law or increased criminal sanctions. It is an important study. It’s something I think resources would be better spent on rather than passing laws which may not have any real, practical implication or any effect on deterring impaired driving on our roads.
Senator Dupuis: Are you quoting from Berg’s study entitled Reducing crashes and injuries among young drivers: what kind of prevention should we be focusing on?
Ms. Leamon: Yes. That’s the one.
Senator Dupuis: Your fourth recommendation is to publish the breathalyzer maintenance records online. Are you referring to the experience of the U.S.?
Ms. Leamon: Yes, there is evidence to show that when we put these kinds of documents online, it makes it much easier for the public to have access. It’s not only defence lawyers, such as myself, but also Crown counsel, lay people and police officers. They will all have access to those documents at the click of a finger. It creates a situation where people are able to access that without delay, so we’re not waiting for disclosure to arrive at our offices. We can access it. Putting those online, in my understanding, is quite an easy process once they have the infrastructure to do so in place.
Senator Carignan: If we are trying to improve the system to prevent drug-impaired driving, I clearly have the same reservations you do about the fact that it’s impossible to make a rational connection between the limit per se and the impairment.
The Senate passed Bill S-230, which allowed for the use of screening devices based on suspicion. Bill S-230 also referred to the drug recognition expert, with reasonable and probable grounds to believe that an offence had occurred. Do you think that system would be more likely to pass the charter test than the system currently proposed to us in Bill C-46?
Ms. Lee: I believe it would be more likely to withstand Charter scrutiny, in part because it mirrors the existing system we have in place for the detection of alcohol-impaired drivers. So all of the analysis that has been done by the Supreme Court of Canada in the context of alcohol would be equally applicable in the context of drugs, and also because it’s similar to the existing system that we have for the detection of drug-impaired drivers in that you form a suspicion.
Currently, you make an SFST demand and then gather your reasonable grounds and make a DRE demand. In some respects, it makes the process better and more constitutionally valid because with the compliance by the driver using a quick roadside test as opposed to a series of steps that have to be administered through physical participation, it’s less time that the person is detained, less invasive and can lead to fewer problems with the manner in which the police administer the tests.
I think it would have a better reception with the courts in a constitutional challenge. I think it also shores up that notion that the police are seeing symptoms of impairment, forming a suspicion, getting a positive result showing there is some drug in the person’s body and then conducting a further test. There is a pathway of steps that confirm this problem with the driver throughout the process that makes the investigative evidence gathering stronger.
Senator Carignan: You have some evidence against the random breath testing system; the bill talks about “mandatory”. If we were to apply the random breath testing system to public carriers, such as airline pilots, locomotive engineers, and anything related to public transportation, such as buses and trains, do you think it would have been much more likely to pass the charter test than by imposing it on the entire population?
Ms. Lee: Yes. I think it would because it eliminates a lot of those concerns about targeting visible minorities or targeting certain individuals. And it also deals with people in a professional capacity where you should know these obligations are on you if you’re taking on the profession of public transit, and it identifies only individuals who control conveyances that contain people or have the potential to cause serious damage to a large number of people. The section 1 considerations that arise there are more likely to save the legislation than any random driver.
I think it also dovetails really nicely with existing controls and rules and regulations already in place for bus drivers, pilots and trained drivers. It’s not imposing any additional obligation on them. They are already subject to employment restrictions that require them to be tested for drugs and alcohol if their employer requests them to do so. It doesn’t impose any further burden on those people in that capacity.
Senator Eaton: I will continue with Ms. Leamon, and then I will have a short question for you, Ms. Lee. He knows this is my thing about the FETCO.
The federally regulated transportation sector, FETCO, told our National Finance Committee that it is a very serious concern. It has received almost no attention by the government. Would you agree with that, or are you more in Ms. Lee’s camp?
Ms. Leamon: I don’t like to do this, but I am going to respectfully disagree with Ms. Lee on this point. Of course, we know that the Criminal Code and the Charter do have to apply to all people alike, regardless of their occupation. So whatever the law is, two people who are operating a motor vehicle on a roadway should be subject to the same process on the roadside, whether that’s in the course of their employment or if they’re just driving themselves to work on a Monday morning.
For me, when it comes to enforcing these kinds of laws with respect to people who are employed in the transportation industry, I think the difficulty here is with practical enforcement. It’s much easier, of course, to pull over an impaired driver in their car than it is to pull over a jetliner, of course, or a tugboat that’s on the ocean, because we just don’t have the same kind of enforcement in our skies and on our roadways.
My understanding of employment law is limited, but I think employment law would be the appropriate venue to deal with these kinds of concerns. I understand that employment law has come up against the same kinds of challenges and difficulties that we’re contemplating here with respect to the criminal law, which is that when we test for drugs, we’re finding that the presence of a drug in the body doesn’t necessarily indicate impairment. So there are not many sanctions employers can impose on an employee when they find those chemicals in their body.
That being said, if this bill does become law, people who offend in circumstances where they are driving a semi truck or operating an airplane will face greater punishment because it is an aggregating factor now in this bill on sentencing for a person to be operating a conveyance for monetary remuneration or operating a large conveyance or a conveyance with people under the age of 14. All of those things could be taken into account at sentencing.
Senator Eaton: Thank you. I want to get to your profiling issue. Tom Stamatakis, President of the Canadian Police Association, said the lack of resources means that police will continue to use their discretion for roadside screening. Do you have any comment about that?
Ms. Lee: I think it’s very dangerous to expect that all police officers, every single one of them, will use their discretion appropriately. While I certainly don’t mean to be taken as saying that all police officers are racist or that racism will impact the decision of every police member, we know this happens. If you leave it to the discretion of policing, even those inherent biases that people have that they don’t know they have are going to impact how they make those decisions on the roadway.
I read some comments from Senator Sinclair in an article that he was recently quoted in about how even in his time as a judge he was pulled over randomly and asked for his licence all the time. That’s what happens to Indigenous people in this country. That’s what happens to Black people in this country. That’s what happens to Indo-Canadians. That’s what happens to Asian Canadians. It can’t be left to the discretion of police officers if it’s truly going to be random.
Senator McIntyre: Thank you both for your presentations. I’ll start off by making an observation. The length of time for a drug-impaired trial is almost twice as long as an alcohol-impaired trial. I can tell you for sure that Bill C-46 will not decrease the time required for drug-impaired trials. Believe me, I know, because I practised criminal law long enough to know the difference.
My question has to do with the per se limits for THC. As a matter of fact, in your brief you make six recommendations, and in one of them you recommend that Parliament not establish per se limits for THC.
Now, with regard to the proposed concentration of THC, the committee has heard so far from Justice officials on the issue of impairment considerations and public safety considerations. As I understand it, the five-nanogram THC per se limit is based upon impairment considerations, while the two-nanogram THC per se limit is based on public safety considerations.
The difficulty appears to be in directly correlating a concentration of THC to impairment, and obviously, as you’ve indicated in your briefs, we can expect court challenges because there appears to be no real consensus among scientists on what level of THC makes a person impaired. However, that said, in all fairness to the Justice officials, the proposed concentrations were based on a report from the Drugs and Driving Committee of the Canadian Society of Forensic Science, and then the government made a political decision on it. So it’s like a two-edged sword here, and I would like to have your thoughts on that.
Ms. Lee: I certainly recognize that they did make their recommendations on the basis of the Canadian Society of Forensic Science's report. However, that report is contradicted by a lot of other science. I think the other aspect — maybe it’s a three-edged sword — is that it doesn’t recognize that there are many people who might have elevated concentrations of THC in their blood but also have concentrations of CBD, the cannabidiol, in their blood, which can actually mitigate the impairing effects of THC.
In our brief we cited the recent B.C. case of R. v. Miller, which involves an individual who had been charged with a breach of his probation order for being intoxicated; it was on the basis of a THC concentration, but his blood test also revealed cannabidiol, and the court couldn’t resolve the mitigating effects of cannabidiol on the impairing effects of THC.
Maybe if the government is going to do this and going to set a limit, they should set a limit that also corresponds with other things that marijuana would put in your blood that would mitigate the impairing effects and allow an accused individual the opportunity to full disclosure of all of that information and full testing of their blood so that they can make full answer and defence to those types of allegations.
Senator McIntyre: Under Bill C-46 DREs would be treated differently from other experts. The bill eliminates the need to qualify a DRE as an expert for their evidence to be admitted in court proceedings.
However, I note that other experts will continue to be required to qualify as experts, and obviously this is all in accordance with the Supreme Court decision in Bingley. Should DREs be treated differently from other experts?
Ms. Lee: I don’t think so. I have to say I don’t agree with the court’s decision in Bingley, and I don’t think you should treat a DRE expert any different from any other expert just because the Criminal Code says that they are an expert, particularly if you’re going to have drug recognition evaluators as designated under the Criminal Code only permitted to be peace officers. You can’t become a drug recognition evaluator unless you’re a peace officer, and so it again limits the ability of the defence to make full answer in defence to the challenges when you have to go through the whole qualification process for your own expert while the Crown gets the benefit of just calling their officer and saying, well, he’s an expert and there’s no challenge to that.
Senator Pratte: You have both mentioned this morning and we have heard many other witnesses tell us that one of the reasons we should amend this bill substantially is that many of the provisions will be subject to challenges under the Charter that would clog up the courts. I want to discuss this briefly.
I wonder how valid an argument this is as such if a government and if Parliament is convinced that a particular act or a particular part of an act is valid and is necessary. There’s a good chance that there would be a challenge today under the Charter for many Criminal Code provisions. Therefore, I wonder whether we should do it each time because there’s going to be a challenge under the Charter. A lot of the alcohol limit provisions were challenged under the Charter, but they were necessary and proved to be good and necessary provisions. As such, I’m not sure this is such a good argument. If the provision is not good, obviously we should judge it as not good and amend it or change it. It will be challenged anyway. Even if it is good, it will be challenged. So be it. We’ll see what the courts decide.
Ms. Leamon: Certainly. It is the role of counsel to challenge laws when they come into effect to make sure they are complying with the Charter. Here I can think of a number of different Charter challenges that will make it through the court systems with respect to these laws both on the side of alcohol and with drugs. I envision Charter challenges particularly when it comes to the mandatory alcohol screening under section 8 and also sections 10(a) and 10(b). I have significant concerns about the intrusion into one’s personal security by collecting invasive breath samples, but I also have concerns about section 10(b) rights.
I was troubled when I heard some of the testimony from the RCMP trainers that appeared before this committee when they weren’t quite sure when section 10(a) and section 10(b) would come into effect under this legislative scheme. When RCMP trainers aren’t sure about that, it creates significant problems for policing. It will open the doors for Charter challenges as well, which could be successful, in my view.
We certainly shouldn’t limit or discount the importance of legal advice when it comes to impaired driving investigations. I think that is an error that some of the academic scholars whom I have read so far doing their Charter analyses have fallen into, with all due respect.
It’s not quite as simple as telling your client to blow into a roadside device or an instrument. There is a lot more to it than that. The substance of what is said between a lawyer and their client is not reviewable in any event, so it is not a reason to discount that Charter right. I do think there are significant concerns for sections 10(a) and 10(b) for the alcohol side of things.
The drug side of things is a completely other can of worms. I think that the per se limits are going to be overly broad. They are not rationally connected, in my view, to the objective of curbing impaired driving when we have per se limits set at such a low limit and there is no connection between impairment and having that level of THC in the blood. These challenges will be vigorous and, in my view, have a good chance of succeeding. It’s up to the government to make sure we are passing laws that aren’t going to clog up the court system, create delays and waste money with those challenges.
Ms. Lee: Looking at legislation that might be subjected to significant Charter challenges has changed in light of the decisions in Jordan and Cody. When Bill C-2 was passed, for example, it created huge delays in impaired driving investigations because everybody was asking about the retrospectivity of eliminating evidence to the contrary. That went from 2008 to only being resolved in 2012. That’s a long period of time when these cases were just sitting in limbo in the courts. With Jordan and Cody now being decided by the Supreme Court of Canada and having that 18-month limit for provincial cases in court, which most impaired driving cases are, that’s something that any legislator has to keep in mind. If legislation is likely going to be the subject of Charter challenges, particularly impaired driving legislation, which touches so many more people than other types of criminal law, I think that is something, given the new framework we have, that has to be borne in mind.
Senator Gold: Thank you for being here and welcome. I have a comment and then a question. Though I was a constitutional law professor for many years, you might be surprised that I actually don’t want to ask you about the Constitution except to note that, as you know —
Senator Carignan: Because you know the answer.
Senator Gold: I would never presume to know the answer. But I do know our constitutional obligation when we’re faced with laws is to listen carefully to the various inputs on the constitutionality. We’ve had a number of views expressed, including those by my former colleague, Professor Hogg — I’m sure you’re aware of that — and from government. I subscribe, by way of comment, to my colleague Senator Pratte’s comment as well. I don’t think you’re suggesting that just because there are challenges that should freeze any legislative initiatives. But I don’t want to talk about the Constitution because we will hear evidence from others, and I respect your views as well.
We were advised yesterday by one of our witnesses to ask that even if it’s upheld under section 1 — and I believe it will be, personally, but that’s neither here nor there — is it good policy? I wanted to ask for your views on the possible deterrent effect of this bill, with regard to both alcohol and drugs.
If I can flesh out the question a bit, in your experience is there a rational basis for assuming that random breath testing, which can be said to increase the chances of detecting people who are driving while impaired, will have a deterrent effect on those who would otherwise get into the car having consumed some alcohol?
On the drug side, notwithstanding the state of the science, would it not be reasonable to assume — knowing that there are devices that can detect the presence of drugs, which will only be administered if you’re driving while impaired under the law — that you might be found guilty of a per se offence whether impaired or not and that that would be a strong incentive for people to say, “I like to smoke, so I'd better take an Uber”? People wrongly believe that they can smoke and that they’re even better drivers. We know that’s not true. We know marijuana, cannabis, impairs your ability to drive. The science is clear. It varies from person to person, but surely it’s reasonable to think there is a rational basis for saying — knowing you might get convicted of a criminal offence if you have two, three, four or five nanograms — “I’m not going to get into my car if I smoke. I’m not going to take that risk.”
Constitutionality and clogging up the courts aside -- and these are important issues -- is it nonetheless true in your experience, or can you comment on the possible deterrence effect of this to stop people from getting into their cars when they’ve drunk alcohol or when they’ve consumed cannabis?
Ms. Leamon: The deterrence effects that research supports are better when there is visible enforcement and public education. The education campaigns have to be targeting people who are at risk of impaired driving, whether by drugs or alcohol. They should be geared to those communities. So it should be younger people, and they should be made in First Nations languages and in rural areas that we know are most affected by these kinds of activities. In particular, Alberta and Saskatchewan have high rates of impaired driving, so we should be focusing on public education. The fact is that laws don’t actually make a difference unless people know about them and understand them.
My other concern that you touched on here concerns these per se limits and criminalizing drivers who are found with particular levels of THC in their blood. I don’t think that society has any interest in criminalizing people who, say, are medical marijuana users. We know that those people can have high levels of THC remaining in their system for long periods of time even after they’ve ingested marijuana. They don’t drive after they’ve ingested it, but a few days later they get in their car to drive to the grocery store. They get pulled over and they’re undergoing a blood test and they have between two and five nanograms in their blood. I don’t think society’s interest is served there. I don’t think it is a deterrent. It’s more arbitrary, and it won’t have the effect we wish it to have when it comes to the general population and attitudes around impaired driving.
Senator Gold: If I understood you correctly, the idea is that you know you might be randomly stopped, and the information is properly targeted, so it should have some impact on those who would otherwise figure they’ve gotten away with it many times because they drink vodka and are pretty good at faking sobriety. I’m a scotch drinker, and I don’t drink and drive.
On your latter point, I understand your point of view, and I share concerns about medical users and the dilemma that they would face. I spoke to that in my speech in the chamber.
Nonetheless, would knowing that I might be pulled over and ultimately charged with an offence not give me pause if I’m a regular user, an occasional user, to say, “I’m going to get high, but I’d better stay away from driving?” Isn’t there going to be a deterrent, at least for that category of the population?
Ms. Leamon: Yes, I think we have seen, from results in Ireland and Australia, that random breath testing, for alcohol, anyway, has had an effect on the rates of impaired driving in those countries. But what we have to remember is that those countries don’t have a Charter equivalent. So, again, it comes back to the Charter.
I know, Senator Gold, you want to stay away from the Charter, but, unfortunately, it’s impossible to avoid it, and I do think that, perhaps, if we wanted to have random breath testing, maybe a better way to implement that would be to implement it only at stationary roadblocks, for instance. That would eliminate any concerns, in my view, with respect to, say, racial profiling and arbitrary stops. You know that if you encounter a roadblock, you expect that you are going to be breath tested. I think it would have the same kind of deterrent effect on the population, without encountering issues when it comes to practical enforcement and Charter rights.
Senator Batters: Thank you very much, both of you, for being here. Ms. Lee, you provided some important information to us about possible Charter non-compliance. On page 1 of your brief, you said:
The amendments contemplated by Bill C-46 will only hinder the administration of justice. The proposed measures will lead to greater court delays, and enormous litigation expense that will clog up the court system for several years.
. . . The ultimate effect will likely be that most, if not all, of the proposed amendments are struck down.
Regarding mandatory alcohol screening, which we heard a lot of evidence about yesterday as well, you said:
Why should suspected alcohol-impaired drivers be given fewer rights than suspected drug-impaired drivers?
This suggests the law will also not be found to be conducted in a reasonable manner when it is ultimately subjected to a constitutional challenge.
I note, just referencing Senator Pratte’s point earlier, that the issue is not that Charter challenges are going to take place. Of course, that’s the case for probably almost every law that Parliament passes. The issue here is that there seems to be a high likelihood that those Charter challenges will be successful with these different provisions.
What I wanted to ask you about, Ms. Lee, is this: At the House of Commons Justice Committee, you reacted to Professor Hogg’s argument that Bill C-46, in his view, was Charter compliant under sections 8 and 9. You said:
I don't see how he can come to a conclusion that it doesn't offend section 8 and it doesn't offend section 9 when our Supreme Court of Canada has already ruled that the measures now in place offend section 8 of the charter, that the measures now in place offend section 10(b) of the charter. The proposed bill is stripping away more protections.
I’m wondering if you could please address the point about Professor Hogg's argument in a little bit more detail.
Ms. Lee: Yes. I’m still reacting to Professor Hogg’s opinion. In the constitutional cases that have come before the Supreme Court of Canada thus far —Thompson, Bernshaw and R. v. Orbanski; R. v. Elias, the most recent one — each time approved-screening-device testing has been challenged or roadside testing, like SFSTs, has been challenged, the court has said that these violate sections 8 and 10(b) of the Charter. They are saved by section 1 because of three components. Those three components are the reasonable suspicion requirement, the forthwith requirement and the use immunity. In British Columbia, in particular, we’ve eliminated use immunity because we have the immediate roadside prohibition scheme. That’s out the window already. Now we’re taking away the reasonable suspicion and forthwith requirements and making it simply make people blow or make people participate in these invasive testing procedures.
Given that that’s the state of the law already and that there’s nothing to suggest that that’s not good law — and the Supreme Court of Canada followed themselves in Orbanski; Elias in the early 2000s — I am of the view that Professor Hogg’s opinion, while he is, obviously, a very well-respected constitutional scholar and has far more experience than many in the area, doesn’t take into account the fact that the Supreme Court has not, at any point, shied away from what they said back in the 1980s.
Senator Batters: Ms. Leamon, at the House of Commons Justice Committee, regarding the limitation on disclosure, you said:
The rationale for doing so appears to be in line with attempts to combat the perception of delay in the criminal justice system. The irony here is that this is more likely to contribute to delay. Defence counsels like me will be required to make time-consuming applications in order to access these documents.
Our committee has a very keen interest in the issue of the criminal court delay crisis that we have going on in Canada right now, and we’ve seen that, currently, we have a massive number of impaired driving charges that take a very long time to go to trial. As a result, it’s become a real glut on the criminal justice system in dealing with criminal charges. Could you address that issue of delay in a little bit more detail than you have had the time to do already today.
Ms. Leamon: Thank you for your question, Senator Batters. Delay is a significant issue, as my colleague pointed out earlier, particularly with the legal landscape as it is now, with the Jordan decision. So we have 18 months as the outer limit, at this point, for an impaired driving trial or any criminal offence to conclude.
We know that impaired driving cases take quite a significant amount of time already. The average, I think, is about 105 to 230-odd days to process through the court system.
Limitations on disclosure are only going to contribute to that, in my view, and the reason for it is that defence counsel are going to be making applications. This bill does contemplate a mechanism to do that. It has to be brought, both in writing and orally, at least 30 days before trial, and we have to speak to those. So we will have to speak to those in court. We will be taking valuable court time. We know that our criminal justice system is already overburdened. So allotting more time to make these, in my view, unnecessary applications when we could do something else, like, say, publish these kinds of documents online, is short-sighted. Section 11(d) Charter rights cannot be easily discounted. People do have the right to know the entirety of the case against them. That’s for impaired drivers, just as much as it is for anybody else who has been charged with a criminal offence.
So the right to those documents is important, and I think it was Greg Yost that pointed out, to this very committee, that defence lawyers are creative. They will come up with ways to get their hands on those documents that they feel they require in order to properly defend their clients. So making these kinds of applications is going to be time consuming, but, also, I have concerns about how quickly defence counsel will have these documents and how readily they will be made available. So if Crown isn’t anticipating that they’re going to have to disclose these kinds of historical maintenance records and so on and so forth, they will be left in a position, if an application is successful, of waiting for police detachments to gather that information, to forward it to them, to redact it and then to send it to defence counsel, which can also take a great deal of time. It could create further delays if we have to seek an adjournment in order to review that material prior to trial. I do that think there are going to be significant concerns when it comes to delay with the way that the disclosure provisions are set up in this bill, and I have concerns about that.
Senator Boniface: I just want to come back to your reference to the Bingley decision. You indicated you disagree with it, but I assume you accept it is the law.
Ms. Lee: It is the law.
Senator Boniface: Correct. Thank you. Ms. Leamon, you made reference to the response from the RCMP with respect to training, that they hadn’t yet contemplated it. But, in fairness, the bill is not finished yet. So, on the training, obviously, they’ll take legal advice, and then they’ll incorporate the legal advice into the training. So it makes sense that they may not have turned their mind to that yet.
Ms. Lee: Yes, I was just a little bit shocked to see that the RCMP trainers had not turned their mind to that kind of an issue.
Senator Boniface: I think they’re waiting for the bill. I think that’s part of it. Thank you. Just on the mandatory alcohol screening, I’m caught on your argument with Professor Hogg. I know he’s an eminent person to challenge, and I appreciate that. But he is a known authority, not just in Canada but elsewhere in terms of this, that it would be saved by section 1. It would just be fair to say you disagree with his opinion on it.
Ms. Lee: I disagree with his opinion on the basis of the prevailing Supreme Court of Canada authority on the issue of section 1 and the fact that the background to a section 1 analysis — the number of impaired driving cases, the number of deaths on the roadway — is not any higher now than it was in the 1980s or the early aughts.
Senator Boniface: But it still doesn’t mean it’s acceptable to us as Canadians?
Ms. Lee: No.
Senator Boniface: Thank you.
Senator Pate: Thank you very much to both of you.
You may be familiar with the Randy Elder article that was published in the American Journal of Preventive Medicine; they conducted a study that found the most effective way to address and prevent deaths and to prevent impaired driving would be a combination of treatment programs as well as the installation of ignition interlocking devices.
I’m curious as to what your views are on that and your experience with the accessibility or availability of treatment programs so that individuals can access that, particularly those who have significant addiction issues.
Ms. Lee: I’m very supportive of treatment programs for people who have alcohol and addictions issues. In my own practice I have guided people who obviously need it down that path and have never seen them again, whereas other people who haven’t been guided down that path sometimes will come back.
As for ignition interlock programs, they are very accessible. They can be installed, basically, at any auto glass shop, so it’s quite an easy thing to do. As an office, we have called for the mandatory installation of interlock devices in commercial vehicles as a starting point for that.
Ms. Leamon: Very briefly, I want to touch on the issue of curative discharges because I think this brings them up. This bill contemplates no longer allowing curative discharges.
In B.C. we don’t have them, but other provinces do. I think those are very important because they encourage people with long-standing substance abuse issues and alcohol issues who need treatment to seek treatment. There’s an incentive for that. It helps reduce recidivism. We know people who drive while impaired continue to do it.
We have to decide what kind of society we want to live in. Do we want to live in a society where our laws are there simply for retribution, or do we want to be rehabilitating chronic offenders so that they don’t offend again and can be reintegrated into society?
The idea of eliminating curative discharges and the discharge component of that is problematic, and I don’t think it will achieve the objectives it should in terms of treatment.
The Chair: I will ask our guests to quickly wrap up their answer to Senator Carignan’s question.
Senator Carignan: It will be difficult to answer in 30 seconds. This is a very technical question about the chain of custody. Have you had a chance to read subsection 320.28(8), which states that: “A person who takes samples of blood under this section shall cause one of the samples to be retained for…”? It seems strange that a third party, whether a doctor or a nurse, should keep the sample for a long time instead of the police who usually keep the evidence. I would like to hear your comments on that.
Ms. Lee: I think that also ties into the comments we have been making about the court delays and delays in the process because it involves possibly calling those witnesses and obtaining disclosure from those witnesses about what they did with the sample.
A lot of people don’t know about blood testing. If you agitate the sample too much, if you shake it up, you can shatter the blood cells and increase the alcohol level. If the sample isn’t refrigerated within a certain period of time or kept at a consistent temperature in the refrigerator, it can ferment and cause the alcohol level to rise.
It’s very important for these samples to be given to the police officers, put in a cooler and transported to the lab as soon as possible. Even taking too long to test the sample can result in a sample that doesn’t produce a reliable analysis.
The Chair: It’s my pleasure to thank you both, Ms. Lee and Ms. Leamon, from Acumen Law Corporation. We were privileged to have you both to answer questions from our senators.
Thank you very much for being here. Thank you for your contribution to the study of this bill.
It’s my pleasure this morning to welcome our witnesses. From MADD Canada, we have Andrew Murie, Chief Executive Officer; and Eric Dumschat, Legal Counsel. And from Families for Justice, we have Markitas Kaulius, Founder and President. Good morning. We also have Grace Pesa and Sheri Arsenault. Welcome.
I think we will have first the representative from Mothers Against Drunk Driving, Mr. Andrew Murie.
Andrew Murie, Chief Executive Officer, Mothers Against Drunk Driving Canada: Thank you for having me today.
Just before I begin my formal presentation, I would like to recognize a couple of people in the audience. We have LeeEllen Carroll, whose husband Bryan Casey was killed in 2011 by an impaired driver, and Lise Fournier, whose fiancé Alain Seguin was killed in 2013. They’re part of the MADD Ottawa chapter. Our chapters have volunteers across the country. It’s very important.
I have put a package together for you today, which includes my notes. It also includes a message from our national president, Patricia Hynes-Coates, whose son Nicholas was killed in an impaired driving crash. We also have the latest study done on mandatory screening, which has just been published in the Canadian Criminal Law Review in February 2018 by Professor Robert Solomon and Dean Erika Chamberlain, both from the Faculty of Law at the University of Western Ontario.
In my remarks today, I will focus specifically on what MADD Canada considers the most important issue in Bill C-46. MADD Canada thinks one of the most important impaired driving countermeasures available is mandatory alcohol screening.
MADD Canada also supports the evidentiary and procedural changes that, if enacted, would address some of the technical concerns with the existing law, questionable court decisions, and other obstacles to effectively enforcing and prosecuting impaired driving. Fewer impaired drivers would evade criminal responsibility due to factors unrelated to their criminal conduct, and those convicted would be subject to more onerous sanctions.
Further, MADD Canada also strongly supports the measures dealing with drugs and driving, the three per se levels, the use of oral fluid screeners, the use of blood tests and the reduced licence suspension periods for alcohol interlock programs.
In 2016, the Centers for Disease Control and Prevention in the United States released a report indicating that Canada has the highest percentage of alcohol-related deaths, 33.6 per cent, among the 20 wealthy nations studied.
MADD Canada strongly supports and promotes new legislation that focuses on deterrence. We need to deter people from driving when they have consumed too much alcohol. We need to deter people before they cause a crash that kills or injures someone. That’s why we need to authorize police to use mandatory alcohol screening.
Before proceeding on the merits of mandatory alcohol screening, I need to correct some misperceptions. Mandatory alcohol screening best practices mandate that all vehicles are checked, and all drivers are stopped and must provide a breath sample. Mandatory alcohol screening operates the same way as mandatory screening procedures at airports, on Parliament Hill, in courts and other government buildings. Some witnesses have complained that mandatory alcohol screening will open the door to police harassment, discrimination and the targeting of visible minorities. We have found no such concerns about police impropriety in the mandatory alcohol research literature or in actual practice.
Canada’s current system of breath testing is one of selective breath testing. Only drivers reasonably suspected of driving impaired can be tested. Studies have shown that such programs miss a significant portion of legally impaired drivers. They miss 90 per cent of drivers with BACs between 0.05 and 0.079, and they miss 60 per cent of drivers with blood-alcohol concentrations over the criminal limit of 0.08.
In your package, you will see two charts. In the case of Ireland, mandatory alcohol screening not only leads to reduced fatalities and injuries, but it also reduces the burden on the courts. Because it serves as such a strong deterrent, fewer people are likely to drink and drive, and thus the number of people charged with impaired driving goes down dramatically.
The same experience happened in Hong Kong, where you saw a dramatic decrease in the number of traffic collisions.
I think you could do country after country. These are the two latest countries that have adopted mandatory alcohol screening, both with considerable results. The Australian and New Zealand experiences are also well documented.
We conservatively estimate in Canada that we will see a 20 per cent reduction in fatalities when mandatory alcohol screening is preventive. We also think it will reduce injuries to fewer than 12,000 per year.
The research on this point is clear in that the studies used have been controlled for other factors. A lot of people who have come before you have said that Ireland and Hong Kong are different than we are, but in the well-defined research in good publications, they have controlled for the other factors. In Ireland, for instance, they reduced the blood alcohol to 0.05. That was controlled for, so when they talk about mandatory alcohol screening and they give those numbers, it’s for the effect of mandatory screening only. That’s an important point to make.
It’s estimated that mandatory alcohol screening, if introduced in Canada, would save the system in its first year $4.3 billion. That was based on an estimate using current police resources and the current number of sobriety checkpoints.
The public support for mandatory alcohol screening increases after mandatory screening is enacted. For example, in New South Wales, support for mandatory alcohol screening prior to introduction stood at 63.8 per cent. It rose to 85.3 per cent by mid-1983, six months after its introduction, and reached 97 per cent by 1987. In 2002, 92 per cent of Queensland drivers supported mandatory alcohol screening.
So the longer mandatory alcohol screening runs and the public sees its benefit to road safety, the more it is supported.
There is already broad support for mandatory alcohol screening in Canada. In a 2009 survey, 66 per cent of Canadians supported legislation authorizing police to conduct mandatory alcohol screening. In 2010, an Ipsos Reid survey found 77 per cent of Canadians either “strongly” or “somewhat” supported the introduction of mandatory alcohol screening.
When informed of mandatory alcohol screening’s potential to reduce impaired driving deaths, 79 per cent agreed that mandatory alcohol screening is a reasonable intrusion on drivers.
MADD Canada’s legal director, Professor Robert Solomon, concluded that mandatory alcohol screening should be found to be consistent with the Charter. Dr. Peter Hogg concurred with our Charter analysis. More important, Dr. Hogg independently concluded in a formal written legal opinion he sent to MADD Canada that mandatory alcohol screening would not violate the Charter.
It’s essential to put mandatory alcohol screening in the context of accepted screening procedures routinely used at Canadian airports. In 2015, an estimated 131 million passengers got off and on airplanes in Canada. It’s not uncommon for them to take off their shoes, belts, jewelry and carry-on items and be swabbed for drug or explosive residue, be scanned for weapons and be subject to searches. It’s not uncommon to wait 15 minutes to be subject to these procedures. Such procedures are accepted because they serve a public safety function.
Put bluntly, more people are killed in impaired driving accidents each year than are killed in airplanes.
In conclusion, MADD Canada would urge the Senate to show leadership and enact Bill C-46.
The Chair: Thank you very much. I would ask Markitas Kaulius to now share her remarks.
Markitas Kaulius, Founder and President, Families for Justice: Thank you for inviting me to be here today. My 22-year-old daughter Kassandra was killed by an impaired driver on May 3, 2011. My daughter was driving home after coaching a softball game and had the right-of-way to make a left-hand turn. She was struck on the driver’s side door at 103 kilometres an hour. Kassandra lost the next 60 years of her life.
The driver made the choice to put everyone at risk on the road that night. She was two and a half times over the legal limit to drive. The driver who killed my daughter is just one of thousands of drivers on our roads each day who make the choice to drink and drive while being impaired. They leave a devastating trail of carnage, injury and death in their path.
Families left behind should no longer have to endure the anguish and heartache of burying their children and loved ones following an alcohol- or drug-related impaired driving collision. Children should no longer be orphaned when their parents are killed by a driver’s careless decision to drive after consuming alcohol or drugs.
Families for Justice has been asking the federal Government of Canada to make changes to Canada’s impaired driving laws in the interest of public safety for the past seven years. We submitted a petition with over 120,000 names to the federal government asking for the Criminal Code of Canada to be changed and the charge of impaired driving causing death to be redefined as vehicular homicide as a result of impairment, as this is truly what this crime is. This could include any future impaired driving deaths caused by drugs or alcohol.
The petition also asked the government to bring forward mandatory minimum sentencing of five years for anyone convicted of impaired driving causing a death. Out of a five-year sentence, the accused might serve 10 months before becoming eligible for parole.
Families for Justice has provided in our package to you letters of support from the Alberta RCMP of K Division, the RCMP of E Division in British Columbia, British Columbia Association of Chiefs of Police, the Alberta Federation of Police Associations, the Edmonton Police Service and the Canadian Association of Chiefs of Police, who all support us in our efforts to bring about changes to Canada’s impaired driving laws. Those in these organizations are the very people who are faced with the reality of impaired driving and have to deal with the harsh aftermath. They, too, believe the laws need to change.
In my presentation package to you, I have a letter I received from Mr. Justin Trudeau, dated April 15, 2015. In his letter, he stated the following:
Driving while intoxicated is an unacceptable personal choice, and its tragic results are predictable and irreversible. That is why I share your view that impaired driving is a crime that deserves Canadian society’s strong moral condemnation. The need to prevent an impaired driver from taking an innocent life is why I support the passing of Bill C-652. As you know, Kassandra’s Law would rename the offence of impaired driving causing death as “vehicular homicide as a result of impairment” and call it exactly what it is — the morally culpable killing of another human being. As a result of this change, a conviction would carry additional weight, and hopefully provide a greater deterrent to would-be impaired drivers.
In addition, he would also support Bill C-590.
That bill will increase penalties against anyone who drives while severely intoxicated, and will increase the penalties for impaired driving causing death.
Mandatory minimum sentences are not for all crimes, but they should be in place if someone kills an innocent person while driving impaired. Currently in Canada, if someone is convicted of causing the death of another person using a gun or a knife, they would be facing a 7- to 10-year sentence. Why is it that killing someone by being impaired by drugs or alcohol results in jail sentences that are so much less?
A vehicle driven in the hands of an impaired driver becomes a 3,000-pound weapon on our roads. Sadly, thousands of innocent people are dying every year. The victims who died were given a death sentence. The families were given a lifetime sentence of living without their loved ones.
In 2010, nearly as many drivers died in road crashes after using drugs, 34.2 per cent , as those who had been drinking, 39.1 per cent. Currently, the minimum penalty for killing someone while driving impaired is a $1,000 fine. In Bill C-46, the government wants to raise the fine to $1,500.
I ask anyone in the room if they think a $1,500 fine would be an appropriate sentence for killing your child or someone’s loved one. The public will tell you absolutely not.
Bill C-652, tabled in 2015 by the previous government, proposed a mandatory minimum sentence of six years for impaired driving causing a death. That would be an appropriate sentence. A $1,500 fine is not.
In proposed Bill C-46, clause 320.22 states that there is an aggravating factor in the case if the passenger is under 16 years of age. We believe the aggravating factor should apply no matter what the age. Aggravating factors should also include the number of passengers that the driver had when driving impaired. It should also include speed and fleeing the scene of a collision.
With mandatory minimum sentencing, there is a guarantee that judgments will be uniform throughout the justice system. Offenders will be punished based upon their overall moral culpability and the severity of the crime they committed. Mandatory sentences will help in creating a standard of justice that is applied equally to all parties who have been charged with similar crimes.
Sentencing reforms should be focused on improving public safety. Sentences should be proportionate to the offence and reflect the degree of responsibility of the offender.
Public safety for Canadians must be a priority for this government. We believe that the government has the responsibility to protect all Canadians and to ensure that the perpetrators who commit these crimes against them will be punished appropriately.
There should be legislation in place to ensure tougher sentences for those who kill innocent people and put others at risk in our society.
The Chair: Thank you. Ms. Arsenault, could you be very concise, please. I see the time lapsing, and many of my colleagues will want to have a conversation with you in relation to your statement.
Sheri Arsenault, as an individual: Yes, I will do my best. I’m sorry, it’s so hard. We have so much to say.
The Chair: In the conversation with my colleagues, you will have an opportunity to expand on your views.
Ms. Arsenault: I will go quickly here. Thank you very much.
As you know, I’m not a legal expert, and I’m certainly not an organization with vast resources like MADD, but what I am is a real victim. I’m the mother of an 18-year-old son, and his two friends, who were killed.
I hope that you were able to watch my video that I submitted prior. It’s very important to my written presentation, because it’s not only my heartbreaking story, but it’s meant to represent what four Canadians a day go through. Time does not lessen our grief.
I won’t get into what happened to my son, but I can tell you my son had to be identified by his dental records — it was that horrific — he and his two good friends.
The previous government tabled Bill C-73 in 2015, which included a six-year mandatory minimum. In 2017, Bill C-46 was tabled, and all reasonable deterrents and accountability measures for impaired drivers causing death were completely removed.
The much-needed modernization and recognition of the seriousness of loss of life fell on deaf ears. The penalties given to convicted impaired drivers that cause death are extremely lenient and very inconsistent from coast to coast. With Bill C-46, they propose a minimum sentence of $1,000 for the general offence of driving, but it also proposes the same minimum sentence of $1,000 for what should be considered a much more serious offence, and that would be impaired driving causing death. There is simply no effective deterrent or punishment for impaired driving causing death in Bill C-46 with that minimum.
The vast majority of impaired drivers are caught only after a tragedy occurs. This now is considered their first offence, and there’s much weight put on a first-time offender. We all know the truth is it’s their first time caught.
We need to address the problem of repeat offenders. Our justice system perceives this crime as an accident, compared with other crimes that result in death. You would be hard-pressed to find any Canadians who feel the sentences for those that cause death are anywhere close to where they should be. It’s simple: The time just does not fit the crime.
Essentially, this is the same legislation from 2008, Bill C-13. The sentences are so lenient and the risk of being caught is so low that hard-core, habitual drivers are willing to take that risk.
I don’t believe the random breath testing or the mandatory screening would deter that kind of drunk driver. You would find harsher penalties for hunting out of season or fishing without a licence, yet four families a day bury their children.
I will tell you why I think mandatory sentences would be good. They would greatly strengthen the deterrence goal in sentencing. They would provide a level playing field for judges, prosecutors, defence lawyers while still leaving a wide area of discretion for judges between the minimum and the maximum number for considerations such as mitigating or aggravating factors.
Most importantly, a five-year mandatory minimum would be commensurate with other serious crimes that cause loss of life, not to be viewed as an accident or an unfortunate tragedy. Stronger deterrence is critical, but also, very importantly, accountability is crucial.
To me it’s inconceivable that impaired driving causing death is not taken more seriously by our government. There is nothing more serious than loss of life or the death of our children. I believe that Bill C-46 should be reviewed with an open mind, with particular reflection on the impacts, the deaths, the injuries, the victim impacts and the cost on our society, respecting Canadians’ clear demands for harsher penalties. Without having a five-year mandatory minimum in the Criminal Code, it means that Canadians are forced to accept these two-year or three-year sentences for such a criminal act with such serious outcomes. This is 2018, and in this day and age I believe to make the choice of being an impaired driver is actually wilful.
I sincerely believe it is incumbent upon your Senate committee to review Bill C-46 very carefully from a non-partisan perspective with respect to impaired drivers that cause death, especially with the introduction of cannabis into the equation. It’s now an even more critical imperative that necessary legislation on this life-and-death matter not be treated lightly or overlooked. We can no longer perceive it as an accident and treat it as such.
It’s recommended that the Senate propose that Bill C-46 be amended to include a five-year mandatory minimum sentence for convicted impaired drivers who cause death, the same as stipulated in the previous bills. To reduce the impact this serious crime has on society, it’s our only hope to reduce the carnage, the deaths and the suffering caused by impaired drivers and restore the injustices to Canadian families.
Grace G. Pesa, as an individual: Thank you so much for giving me the opportunity to speak before you today. In the interests of time, I would like you to know that I’ve deleted four paragraphs of my presentation. The reason for that is I believe you received a copy of my written statement.
That said, my name is Grace Pesa; I am from Calgary. I am a mother and a victim and now an advocate. I am sharing with you a personal tragedy in the hope that from my story and from what you’ve heard you will consider and study Bill C-46, reflect on why I am appealing for a mandatory minimum sentence in relation to impaired driving causing death.
To be here today is to reopen my trauma, and it’s not easy. My son Francis was killed by an impaired driver. He was 20. In the brief I provided to you, I provided a copy of the obituary and a news article written in Calgary, which will better introduce my son to you, so I will skip about Francis.
As for the case, I will highlight that Kulwinder Singh Chohan chose to drive while drinking, and he had been drinking since the day before. He caused a four-car multiple vehicle collision. Francis died five days after. From that collision, there were multiple injuries in the other cars that he had hit. From that collision, he was charged with impaired driving causing death and impaired driving causing death with BAC over the limit. He pleaded guilty and he was sentenced to three years.
I will quote my oldest son on that sentence.
. . . you tell me, is that just? Is that representative of the loss my family has had? Is that representative of the loss potential of a 20 year old being gone forever? Unless heaven has visiting hours, I don’t think we can justify that coz his family can see him as much as they please but I will never see my brother again.
That is a question that to this day we continue to ask: Where is justice in this sentence?
I would like to make a four-point comment on the mandatory minimums that are being proposed.
Number one: A $1,000 fine for a convicted impaired driver that caused death is just beyond insulting.
Number two: A life killed is equivalent to only $1,000.
Number three: To an affluent individual, $1,000 is just loose change. As Sheri said, it was just a credit card charge.
Number four: The fact remains that this amount will never serve as a deterrent nor prevention. The lack of mandatory minimum sentences has continued and will continue to empower drunk drivers to choose their convenience over the lives of others.
Impaired driving causing death is not considered serious. It is to this day being referred to as an accident. My question: Where is the mandatory minimum sentence in impaired driving causing death? There should be and must be mandatory minimum prison sentences for killing a person.
For as long as impaired driving causing death continues in our society, we will never be protected or safe from this crime. There will be no deterrence or prevention. This is the reason why, as Markitas said, thousands of Canadians signed a petition for mandatory minimum sentences. Victims’ families like to see mandatory minimum sentences because we want to see deterrence, protection and prevention of this crime.
I have had the privilege of meeting other victims across the country — hundreds, in fact — and we continue to ask each other why there is no mandatory minimum sentence. Why is there such disparity between provinces in sentencing for the same crime? I have yet to meet an individual who does not support and is not in favour of mandatory minimums.
Becoming a victim can happen to anyone. This crime does not pick and choose. It can happen anywhere, any time. It is not a question of when, because we know there are four deaths a day. It is a question of who is next.
Before I end, I would like to re-emphasize why I’m here, and I will quote my oldest son:
If I had a choice, I wouldn’t wanna do this, I wouldn’t wanna expose all this, these are things I’d rather just keep in our family but if, if by doing so allows us to make a difference then I’d suffer through it. It’s not just for us anymore, it’s for the others who don’t have the courage to speak up and ask for change.
After all, if not now, when? If not here, where? If not me, who? You are in the position. The time is now, here, today. It will be too late once you are in my shoes, walking my walk and talking my talk.
The Chair: Thank you very much, Ms. Pesa. You made your case very strongly.
Senator Boisvenu: Thank you for your testimony. I know that the loss of a child is a painful experience that will stay with you forever. I sympathize with you a great deal. Thank you for reiterating that a minimum penalty must not have a deterrent effect only. It must be acknowledged that a serious crime has been committed, and in this regard, the Criminal Code has always been fair: a serious crime equals a proportionate sentence. Thank you very much for your testimony, ladies.
My question is for anyone listening to us on the Internet or on television. It is difficult when a child loses their life because of a reckless driver who has chosen to use drugs or alcohol, especially when a minimal penalty of $1,000 is imposed. In a society like ours, is that fair?
Ms. Arsenault: That’s one of the biggest problems: There is no deterrent for this crime. What could be more serious than loss of life? It’s like I said, the time doesn’t fit the crime. A vehicle is a deadly weapon, in my view. It’s a choice to drink and drive. It’s not a privilege.
A $1,000 fine is a joke; it’s laughable and very insulting to say a human life is worth only that. We want it to be commensurate with other crimes that cause such serious outcomes.
Senator Boisvenu: For years, you have been advocating for the rights of families. You communicated with Mr. Trudeau when he was in the opposition to ask him whether he was in favour of mandatory minimum sentences, and I think he supported you. Have you since received support from the government in your efforts?
Ms. Arsenault: No. We’ve tried since 2016 to meet with the Minister of Justice. It’s very hard to get their reasons why they removed this from Bill C-46 when it was in the previous government bill. It’s very hard.
The only thing that I have seen was Justice Minister Jody Wilson-Raybould in the House of Commons comment that her government is not against mandatory minimums for serious crimes. Therefore, that tells me impaired driving causing death is not considered serious by this current government.
Ms. Kaulius: I just wanted to mention we wrote to every single MP in the house here. I think we had 12 responses back.
Some of the sentences that we have seen for fatalities have been one day in jail, $1,500 fines, $2,000 fines, 90 days to be served on weekends, a $1,500 fine and seven weekends. That gentleman killed two people. It was his third impaired driving charge.
We had a gentleman back East who received his nineteenth impaired driving charge. A lady in Victoria has just received her twenty-first. We are asking why they still have a licence.
I want to stress to all of you here that the only reason we’re here — we have already lost our children. We are trying to protect everyone else from losing theirs.
The Chair: We understand that very well.
Senator Dupuis: Thank you for appearing before us, ladies. Coming here to share with us a sorrow that you may not get over shows your resolve. I have no questions for you, but I wanted to let you know how important it is that you have come forward. It is extremely important for people to find the courage to do so, even under the most difficult personal circumstances. It will help us to make a better informed decision. Thank you.
I have a question for Mr. Murie. In your brief, you referred to two tables, on pages 3 and 4. Perhaps I did not see them in your document, but what were the studies in question? Can you please send us the references for those studies?
Mr. Murie: They have the paper I gave out from Professor Solomon and Dean Chamberlain.
Senator McIntyre: Thank you all for your presentations. My warmest sympathies for the loss of a loved one.
I understand that you are all advocating stronger deterrence and tougher sentencing laws for impaired drivers. I sympathize with you.
As far as sentencing laws go for impaired driving in Canada, I agree there is no comparison between the 2015 legislation introduced by the previous government and Bill C-46. However, assuming there are no amendments to the bill — I trust there will be amendments, but assuming there are none — this can be of some comfort to all of you. I note that subclause 320.22 of Bill C-46 provides circumstances for sentencing purposes such as when “. . . the offence resulted in bodily harm to, or the death of, more than one person . . .” as well as when “. . . the offender was operating a large motor vehicle . . . .”
It also includes “. . . a person under the age of 16 years was a passenger in the conveyance operated by the offender . . . .” And it includes circumstances where “. . . the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place . . . .”
So I will not ask a question, but I just wanted to make that observation. Thank you.
Senator Pratte: Thank you for being here. We will certainly keep your testimony in mind.
My question is for Mr. Murie. We’ve had a lot of testimony on the per se limits for drugs, which I gather you support. As you know, there is a lot of uncertainty about the scientific basis for these limits, especially the lower limit, and their linkage between limit and impairment. I would like you to comment on this, because many people feel these limits are vulnerable, because there is no evident link for the lower limit of two nanograms and impairment.
Mr. Murie: The focus has to be on the two aspects of what happens at roadside. First, the officer needs to detect reasonable suspicion that the person is under the influence of a drug. If you assume that Bill C-46 has been passed, they would have already screened for alcohol to make sure alcohol wasn’t leading to those impairment traits.
The other thing that I think has really been misunderstood is that the Drugs and Driving Committee recommended that the oral fluid testers be at 25 nanograms. If you’re at 25 nanograms at roadside, you’re grossly intoxicated. That is way above what signs you would see for a 0.08 driver with alcohol.
What happens is they fail the oral fluid. Then at that time, the police can make a demand for the blood test. As you know, they have to have a right to legal counsel, and the clock is ticking.
In the meantime, we know that THC dissipates from the body at a rate of around 90 per cent. So the likelihood of getting a positive test is still there, depending on at what intoxication level they were.
So you can’t focus on the two nanograms in the blood or the five nanograms. It was that they were grossly intoxicated, and, a number of hours later, that level in the blood is no indication of what they were at the time of driving. That’s why we support it.
I would say to you right now that, honestly, what I know is that that’s way too high a level, but it’s the right level to start. We started with alcohol, in the 1980s, at a very high level so that we were only dealing with the grossly intoxicated. Eventually, over time, those levels will come down.
Senator Pratte: Are you saying that 2 and 5 are way too high, or do you mean the 25 is way too high?
Mr. Murie: The 25 is way too high.
Senator Carignan: I will continue with that limit, but, before I do so, I would like to introduce Jean-Pierre Hunter and his wife, whom I have come to know very well in Saint-Eustache. They lost their son; he was the victim of an intoxicated individual. The family and the entire community were grief-stricken to see a young man with so much potential taken away. We really feel for you. I am humbled by what you are doing. It is truly impressive. Rest assured that all the senators here, and those in the Chamber too, have the same goal of making the roads as safe as possible and to keep drunk people off them.
Along those lines, my question is more for Mr. Murie. I have seen the comments sent to the Minister of Justice on the regulations to Bill C-46. Another victims’ group produced a brief. They quoted a number of studies, including one conducted by the American Automobile Association that opposed the limit as such for various reasons, one of which was the lack of a rational connection. There was also a study in Colorado, where three quarters of almost 11,000 cases were under the five-nanogram threshold. They stated that, with a threshold of five nanograms, a good number of impaired people might escape. They recommended removing the limit as such and, instead, using a THC detecting device and then referring people to a drug recognition expert. They also listed other countries that have made that choice, such as Germany, France, Belgium and Finland.
My concern is to have an effective act that will do the job. I do not want an act to be passed that will create a false sense of security, where, as you have seen, defence counsel may well challenge everything and paralyze the system. That kind of act would exist in theory but it would have no application. I prefer an act that can be applied and that will be constitutional. I would like to hear what you have to say about the recommendation from another victims’ group, which would not set a limit per se, but would involve a two-step system.
Mr. Murie: First of all, I see the oral fluid tester, and I commend the government for this approach because I see it as the equivalent of the Breathalyzer at the roadside. Unfortunately, the DRE and the Standardized Field Sobriety Test don’t serve as that deterrent because it’s hard to describe that procedure. But, through being able to hold up a device and say that police are now authorized to use that, that deterrent will come. The technology, in time, will come. The alcohol testing device is better with time, but, right now, that’s the current technology we have to deal with.
Where the U.S. is flawed in their drug-driving problem is not adopting the oral fluid, just the total dependency on the DRE and the Standardized Field Sobriety Test. So, by the time you get reasonable suspicion, do a DRE examination, especially if it’s for a drug that dissipates from the body very quickly, like the amphetamine family, the THC family, I have no doubt that most — I think it was 85 per cent that the studies show were well below the five nanograms. So that makes sense because it took them three and a half hours to get that blood test. So it makes sense. So they failed their system by not having oral fluids.
I’m really pleased, despite some of the obstacles that will come. Will it be challenged? Yes. I think that’s why the government set the per se level for the oral fluid so high. So, at that level, it’s very reliable, very accurate, and I think the courts will withstand any challenges there.
Senator Gold: Let me join my colleagues in extending my sympathies to you. Thank you for your presence and your courage in helping us to better understand the impact of impaired driving on your lives and the lives of all families who have lost loved ones and who are at risk.
My question, again, is for Mr. Murie, though, and it has to do with the importance of education and information surrounding the new measures introduced in Bill C-46. Briefly, just comment on whether you’re satisfied with at least what you understand the current rollout is of information and education campaigns. Are there areas where you think more resources or different resources or different media have to be deployed in order that Canadians in all regions, in all areas and in all languages understand what the new regime will look like?
Mr. Murie: I think it’s really important for Canadians to understand about mandatory alcohol screening, what the police can do, and the more education that’s done, the more it will serve as a great deterrent. So, even before the law kicks in, if you have those educational campaigns, the deterrence has already started. So it’s really important that, initially — There are going to be groups like ours, but from the federal government, like it has done under Public Safety for the drugs and driving, we need to have an educational piece. So that’s really important. That 180 days before the mandatory alcohol screening kicks in is the perfect time to do those campaigns.
Senator Gold: But we heard testimony from, I believe, the minister or their officials to the effect that, actually, some of the campaigns, perhaps around drug-impaired driving, have already begun on social media. I’m not aware of the content of those. I wonder whether you are and whether you could comment on their likely efficacy.
Mr. Murie: Yes. We’re partners with Public Safety on those campaigns. We felt that they were good. We also have three PSAs that we’re doing ourselves that get about $1 million per month in broadcast time. So all of us are out there. There are other groups that are doing it as well. So I think we efficiently got out there.
I think one of the biggest things that we have to do, once Bill C-46 is passed, is get the message out there to the public that the police can use the oral fluid testers immediately. That needs to be the next public campaign that government, plus groups like ours, need to do.
The Chair: In fact, Mr. Murie, when the Minister of Public Safety testified, he referred to your cooperation with the department in that campaign.
Senator Pate: Thank you to all of you for coming, in particular to Ms. Pesa, Ms. Arsenault and Ms. Kaulius and to the members of MADD, Ottawa chapter, who also have lost family members. I can’t imagine the grief or the ongoing situation you face.
If longer jail sentences would bring back your children, I think many of us would be there. I want to echo Senator Carignan’s comments that all of us want to try to stop this, no people more than those of you who have lost loved ones because of it.
My question is for you but also for Mr. Murie, and I also want to thank all of you for the work you’ve done, both Mothers Against Drunk Driving and all of you individually because of the education you do and what that does so that the public knows the impact. We know the deterrence impact that that can have on people.
Most of the research shows that it’s treatment programs and prevention programs. Last night one of the lawyers talked about the need for interlock devices and that one of the ways to prevent it is if you couldn’t even start your car. If you had alcohol or drugs in your system, that would prevent it. I wonder if you’re working on it as well or what your views are on advocating for those. For instance, cars had to put in environmental controls at one time and that was seen as a big change. Now we’re looking at self-driving cars.
Ms. Kaulius: The technology is there that we can do this. I would love to see car manufacturers mandated to implement that. We have the seat belts and air bags. We have all those things. Those things have saved lives. I know if I had teenage children, that’s the car that I would be buying.
The technology is there. It just needs to be mandated and implemented. I can’t even begin to tell you what it’s like to lose a child, but when we are losing thousands of people each year, it’s still the number one criminal cause of death. We’ve had education and we have had awareness for the past 40 years. I live in B.C., and in my particular province, since the IRPs were brought in in September 2010, the police have removed over 195,000 people just in my province who were caught driving impaired.
So you can say we need the increase in awareness and education, but we have had that, and they are still continuing to do it. They are removing over 2,000 people a month in B.C.
Ms. Pesa: I would like to respond to Senator Pate. I used to work on the other side of the fence in this context. I work with corrections and youth offenders. I believe in rehabilitation, restorative justice and all the programs we have. I will echo what Ms. Kaulius said. We have had years of education. However, what I see — and I saw it when I had parolees in my case load — is that when they go to jail, they plan right away on getting out. They don’t even have the time and sense of why they’re there. They need to think through it and reflect why their behaviour brought them to jail.
So I see it and I support it, but I still do feel that lack of prison time, and without it there will be no deterrence.
Ms. Arsenault: The accountability. I would love to see the accountability, and then they get an interlock. Interlock for life. Maybe someone could be allowed to drive again. I believe in rehabilitation. I often put myself in the shoes. What if I was the mother of someone who killed? When I speak to Grade 9 and 10 students, it’s the perfect age. I always tell them that drunk drivers have mothers too. There are so many sides to this coin.
I would love to see the interlock program and everyone pick up on that, but I still want to see accountability. I believe that would also be deterrence.
Senator Boniface: I appreciate that time is of the essence, but I want to say thank you very much to all of you for being here, particularly for giving us the reality of the impact of this crime, because I think we lose sight in the debate on section by section. It’s important that we appreciate there are people who suffer every day, as you said, as a result of this crime.
First of all, making sure you know I heard you, my question really was around the Irish experience, so it will be to Mr. Murie, because I believe that the mandatory alcohol testing is a deterrent for people, as I believe the oral fluid test is. I believe the Irish experience has demonstrated that. Would you agree with that?
Mr. Murie: Absolutely.
Senator Boniface: Okay. That’s all.
The Chair: As you see, we have gone beyond the hour that was allocated to us. It’s my privilege to thank you on behalf of my colleagues. I want to restate the praise we have for your personal commitment to educate Canadians, because I think that there is the campaign that is publicly supported by government initiatives and by your groups, especially MADD and Families for Justice, but there is the individual commitment by you personally, Ms. Pesa, Ms. Arsenault, and the other people who are active in your groups and organizations.
We’re very grateful for your commitment to the cause, because to improve Canadian lives, there are government initiatives and there are citizens’ initiatives, and I think you are the importance of that.
Thank you for your contribution to our study and reflection, Mr. Murie, Ms. Kaulius, Ms. Arsenault and Ms. Pesa.