Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 19 - Evidence

OTTAWA, Wednesday, June 28, 2000

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-18, to amend the Criminal Code (impaired driving causing death and other matters), met this day at 3:43 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.


The Chairman: Honourable senators, today we will hear evidence on Bill C-18. We have before us witnesses from the Department of Justice.

Welcome. Please proceed.

Ms Catherine Kane, Acting Senior General Counsel, Criminal Law Policy Section, Department of Justice: Thank you, Madam Chair. I will make a few introductory comments on Bill C-18. Mr. Pruden has followed all the impaired driving reforms and he will provide those details. I am acting only this week while Yvan Roy, who often appears before this committee, is out of the country.

As you may know, Bill C-18 is the second phase of a two-phased approach in the last year to reform the Criminal Code to better deal with impaired driving and to increase the tools available for law enforcement. The bill is fairly focused; it has four provisions, two of which are outstanding recommendations from the May 1999 report of the House of Commons Standing Committee on Justice and Human Rights, called "Toward Eliminating Impaired Driving. The bulk of the other reforms were included in Bill C-82, which was passed this time last year.

The Chairman: Actually, we had the minister before us on Bill C-82 on June 16, 1999. She was our only witness at that time.

Ms Kane: Those provisions were proclaimed in force on July 1, 1999, and there was a commitment that another key provision, which was left out of that bill, would be reintroduced in this session of Parliament, and it was.

This bill has four provisions, two of which follow from the report, and two others that were included for other reasons, which Mr. Pruden will explain in detail. One provision deals with increasing the maximum penalty for impaired driving causing death from 14 years to life imprisonment, and that is the maximum penalty. The other provision will permit the police to get a warrant to obtain a sample of blood when a person is suspected of impaired driving caused by drug impairment rather than alcohol impairment. That would apply in the case where there has been an accident causing death or bodily harm and the driver is not capable of providing consent to take the blood sample. The provision would enable police to get a telewarrant to obtain the blood sample, where certain criteria have been met.

The two other provisions are more technical in nature. One ensures that the French version of the definition of "motor vehicle" is consistent with the English version and also clarifies that a motor vehicle includes a vehicle that is propelled by other than muscular force. The final amendment corrects an error that was included in Bill C-82. There is a list of the offences that a provincial court judge can deal with; because of the increase of the penalty for driving while disqualified to a maximum of five years, that offence should no longer be included in the list of offences in the absolute jurisdiction of a magistrate. That reference is being deleted, basically to correct an oversight from last year's set of amendments. With that brief overview, I will turn it over to Mr. Pruden to provide the details of those amendments.

Mr. Hal Pruden, Counsel, Criminal Law Policy Section, Department of Justice: Thank you, honourable senators. Perhaps we could first talk about the reason for clause 1 in respect of changing section 2 of the Criminal Code definitions of "motor vehicle." In the English version of the Criminal Code, a motor vehicle is defined as "a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment." Unfortunately, the current French version says the equivalent of "any means whatsoever." This amendment will correct that, so that the French has the same meaning as the English, and of course the English version does not have the same problem that the French version has.

In clause 2, we find the provision that deals with increasing the penalty from 14 years to life imprisonment in cases where there is impaired driving causing death. That is a maximum penalty, which is reserved for the worst case -- where you have the worst offender and the worst fact situation. It is by no means a minimum penalty. Doing this will make the penalty equal to the maximum penalty that now exists for manslaughter and criminal negligence causing death. There have been questions as to whether it will make the penalty disproportionate to other offences. However, it would appear that it will harmonize it with the maximum penalties for the two offences that I have spoken of.

With respect to clause 3, Ms Kane has indicated that at the present time we have alcohol as a basis upon which a peace officer may obtain a section 256 warrant. The warrant would enable an officer to obtain a blood sample from a driver who is suspected in a situation and is unconscious or unable to respond to a demand for a sample of breath or blood and where there is death or injury involved.

The Chairman: Does that apply to the suspected use of drugs?

Mr. Pruden: No. Currently only alcohol is considered. Section 258 of the Criminal Code states that the sample of blood taken for alcohol testing may be further tested for a drug. However, at present, if an officer has no belief about alcohol but has a reasonable belief, based on witness evidence or past evidence, that there is drug impairment, there is no basis in section 256 to seek a similar warrant to obtain a blood sample based on drug involvement by the involved driver who may be unconscious or otherwise unable to consent to a demand. Therefore, this amendment will add drugs as a basis upon which the officer can seek that warrant to obtain a blood sample.

The code clearly sets out that not only must those conditions prevail, but a medical doctor must also be of the opinion that taking that sample will not endanger the life or health of the individual to be tested. There are safeguards.

Let's turn to the clause that will remove driving while disqualified from section 553(c)(vii) of the Criminal Code. Under the Canadian Charter of Rights and Freedoms there is a requirement at the present time that, where the maximum penalty to which an accused would be liable is five years imprisonment or more, the individual must be given the right to a jury trial if they so choose. Last year, Bill C-82 raised the penalty for driving while disqualified from a two-year maximum <#0107> where the Crown proceeds by indictment -- to a five-year maximum. That conflicts with that Charter right to a jury trial, because driving while disqualified is currently listed in section 553 amongst the offences that a provincial court judge has absolute jurisdiction to hear. In that case, the individual would not have the right to choose a trial before a superior court judge sitting alone or before a superior court judge sitting with a jury. This amendment will make section 553 compliant with the Charter right to a jury trial, where the maximum penalty is five years or more.

Senator Andreychuk: I have two questions. I am aware of the persons who are in favour of these new amendments, but I wondered what consultation the ministry might have undertaken regarding these changes. Were any negative points of view expressed? If so, where did they come from and what was the basis for them?

Mr. Pruden: We have not undertaken consultation, particularly on the amendment that will raise the maximum penalty for impaired driving causing death from 14 years to life. However, the Bloc in the House of Commons has made its views well known. They feel that, in some way, the maximum penalty of life would somehow be disproportionate to the maximum penalties for other offences found in the Criminal Code. However, I pointed out that, at least with respect to manslaughter and criminal negligence causing death, the maximum penalties then would be the same for those three offences.

The changing of the definition in section 2 of the Criminal Code was discussed at the Uniform Law Conference of Canada in the criminal law section. It was a proposal that Quebec had brought to the attention of the Uniform Law Conference last year. Thus, it was well discussed and well received.

In respect of adding drugs to section 256 of the Criminal Code, again, that was a matter that had been raised at the Uniform Law Conference, where it was discussed and well received. It was also discussed by the House of Commons committee. They included it in their report as an item that should be done and they heard witnesses on that point.

The amendment to section 553 of the Criminal Code is simply a matter of ensuring that that section is compliant with the Charter. We did not undertake consultations on that particular change.

Senator Andreychuk: Since we do not have the benefit of the minister appearing before us on this bill, which has come rather quickly, can you summarize your opinion as to whether this punishment is disproportionate vis-à-vis other crimes?

Mr. Pruden: The department believes that this would not be disproportionate. I say that because manslaughter and criminal negligence causing death already carry a maximum penalty of life imprisonment. I think if you were to compare it to other offences, you would want to compare it to homicide offences or offences involving a death rather than compare it to a theft offence or a robbery offence where no death is involved. That is the only comment I would have on that.

Senator Andreychuk: Are the discretions available to the judge similar, then?

Mr. Pruden: Absolutely, because there is no minimum penalty for manslaughter and criminal negligence and there would be no minimum penalty for impaired driving causing death.

Senator Andreychuk: It states that the sample would be taken by a qualified technician under the direction of a qualified medical practitioner. I recall a whole host of cases that conjure up what that means. Have we definitively decided that issue?

Mr. Pruden: I think it is clear that you are talking about a medical doctor and a qualified technician, and there is in the Criminal Code a definition or designation of "qualified."

Senator Andreychuk: However, the sample is taken "under the direction" of the medical doctor. I recall many cases where we tried on whether the medical doctor would have to be physically present when the sample was taken. In others, it was under the supervision and guidance of a medical doctor. Where are we at with that?

Mr. Pruden: There are two parts to that section. It is possible to be involved with a qualified technician taking the sample and providing a certificate where there has not been a medical doctor present. However, in order to obtain the warrant to take the sample, under section 256, which is what we are dealing with in Bill C-18, clearly the officer must appear before the justice who is issuing the warrant with sworn information that a medical doctor is of the opinion that this will not endanger the health or safety of the suspected drinking driver or drug-impaired driver.

Senator Andreychuk: Then we move to a technician taking sample, if the warrant is granted.

Mr. Pruden: Yes, but it is granted on the basis that the medical doctor is of the opinion that it will not endanger life or health.

Ms Kane: In most of these cases the person will be under the care of a doctor or medical professional, because they are incapable of providing consent. It would likely be the same medical professional who would take blood from you if you were subjecting yourself voluntarily to having a blood sample taken.

Senator Christensen: I have a question for clarification in respect of the proposed new paragraph 256(1)(a), which says, "a person has, within the preceding four hours..." Was the time period less than four hours before?

Mr. Pruden: No. That has been the same for some time now.

Senator Christensen: It used to be less, did it not?

Ms Kane: It used to be two hours.

Mr. Pruden: I believe that it was changed in the 1990s to four hours.

Ms Kane: I believe it was changed in 1997. However, the presumptions that apply for the use of evidence remain, in the case of breaths, for breath that was obtained within the three-hour window.

The Chairman: Therefore, the person must have committed an offence within the preceding four hours, but the sample has to have been taken within three hours of the offence. Is that correct?

Ms Kane: No, that is not correct. It is confusing. There is a distinction to be made between the time period when the sample is taken, where you can rely on certain presumptions, and the time period when you can get the sample. For example, if an accident occurs, the police basically have four hours after the fact to seek the warrant to get the sample. The sooner the better, obviously, but they have that four-hour window to get the warrant to get the sample.

The Chairman: Then what is the three hours?

Mr. Pruden: Three hours would be the time frame in which to obtain breath or blood from a person who is conscious. However, in order to presume that your result at the time of testing equates the person's blood alcohol concentration level when they actually drove and committed the alleged offence, you must take that sample within the two-hour window -- whether it is breath or blood. If you are not within that two-hour window, you can still bring your expert, but you cannot take the shortcut of simply presenting the certificate evidence. You now must have an expert to relate the person's blood alcohol concentration or the range that it would have been in at the time of driving, based on the actual sample that was tested.

The Chairman: Therefore, the sample has to be taken within two hours.

Mr. Pruden: If you want the presumption without having to bring in an expert.

The Chairman: However, they may not get the warrant to take the sample for four hours.

Mr. Pruden: In that case, they will have to bring in an expert and they will not be able to rely on the presumption and a certificate.

Senator Pearson: My question is on behalf of one of my colleagues. It is related to the definition of "motor vehicle" as anything, except train equipment, that is moved by anything other than muscular force. Senator Watt, from northern Quebec, has observed a number of examples in which inebriated individuals in canoes have caused a drowning or something close to it. How would such a situation be dealt with? If you are drunk in a canoe and you overturn and someone drowns, does that become criminal negligence?

Mr. Pruden: If the facts were there, the Crown could proceed on a criminal negligence charge. However, a canoe does not fit within the definition of "motor vehicle," so it is not covered by the impaired driving provisions. Criminal negligence might apply.

Senator Pearson: It would be difficult. Usually, in those cases that are in remote areas it would be difficult to get any kind of sample.

Mr. Pruden: You could obtain a sample if there were a detachment of police in the area, or if they were able to get there within a reasonable period of time to obtain a voluntary sample. However, they would not be able to make the kind of demand that is contemplated in the impaired driving provisions. Where a canoe is involved, they do not have the same legislative basis.

Senator Pearson: This would, of course, cover motorboats.

Mr. Pruden: Yes, and all-terrain vehicles. I saw a situation recently where a charge was laid that involved a motorized wheelchair. It could also apply to motorized golf carts.

The Chairman: That is not a thing to laugh about, but I have an interesting mental image of a motorized wheelchair heading down the street.

Mr. Pruden: The person may not necessarily have needed the wheelchair, but may simply have used it.

The Chairman: That could be true, yes. Are there any further questions?

Our next witness is from the Canadian Police Association. Welcome and please proceed.

Mr. David Griffin, Executive Officer, Canadian Police Association: Thank you. I do not have a brief or submission to put forward, but we are delighted to be here today to see this move along as quickly as possible. The Canadian Police Association represents approximately 30,000 front-line Canadian police officers from coast to coast. We have 300 member associations from police forces in every province. We wholeheartedly endorse this legislation and we are here today to pledge our support for this bill.

I am the executive officer of the Canadian Police Association and a former police officer. It has been over a decade since I performed any personal police work, but I was a qualified breathalyzer technician under the old Criminal Code. I have performed approximately 400 breath tests. The legislation has changed quite a bit since that time, but I am certainly familiar with a number of the issues that are before the committee today.

In Canada, according to 1997-98 data, an average of 4.5 Canadians are killed every day in impaired driving accidents. Everyday 125 people are injured. That is about five per hour. Nearly one-half of the police officers killed on duty in the last 25 years died in motor vehicle accidents. A large proportion of those involved impaired drivers.

Impaired driving is a serious concern still in Canada. Tremendous work has been done to address this issue, but there is still more work to be done. There is no one solution. We are not here today to suggest that this bill is a single solution. The problem of impaired driving requires a multi-faceted approach.

Certainly public awareness, education and effective enforcement are essential strategies. The R.I.D.E. program is something that people are very familiar with. As well, targeted enforcement in certain areas is another strategy that can go a long way toward increasing community awareness about the issue of impaired driving and assisting in identifying impaired drivers that are on the road. I read a statistic today while I was preparing for this appearance: one in every five drivers at night is impaired.

We also need to make better use of available technology. The Canadian Police Association has been working with other organizations, including MADD Canada, represented here today, to promote the use of technology to assist police officers in identifying impaired drivers.

We also need meaningful consequences for convicted offenders. When we talk about meaningful consequences and sentencing, there are a number of principles that are generally accepted in our criminal justice system. There is general deterrence, or the deterrence to others to not commit that offence. There is specific deterrence aimed at the individual who is accused. There is certainly the issue of rehabilitation and individual's potential for reform. For certain crimes, there is a need for denunciation of that behaviour. Despite all of the advances that we have seen in the fight against impaired driving, it is in that aspect of denunciation and deterrence against repeat, chronic offenders that the message is just not sinking in.

In our view, judges still do not take the issue of impaired driving as seriously as they should. Parliament has had to bind their hands with minimum sentences for repeat offenders to ensure that the principles of deterrence and denunciation are addressed in a consistent response to a serious public policy concern. Unfortunately, there are no minimum sentences for offenders when they take another life or injure another person. We would like to see that changed in the future.

I spoke today with a veteran police officer who has investigated hundreds of fatal crashes in Mississauga and Brampton with the Peel Regional Police -- your area, Madam Chair. Most of those crashes involved drunk drivers. That officer told me that the stiffest sentence that he has ever seen for an impaired driver taking the life of another person was five years. In Nova Scotia, an eight-time offender who killed an 18-year-old girl and seriously injured her boyfriend was sentenced to eight and a half years in jail. That was the toughest sentence ever given in Nova Scotia and it took into account his previous eight convictions. He was granted day parole after serving only 27 months. In Ontario, "tough on crime" means that impaired drivers who cause bodily harm or death receive conditional sentences and do not even make it to prison.

In their May 1999 report, the House of Commons Standing Committee on Justice and Human Rights observed that penalties for impaired driving causing death must be consistent with those for the similarly culpable and equally harmful crimes of criminal negligence causing death and manslaughter. Thus, the committee recommended -- it was an all-party committee and I believe they recommended unanimously -- that impaired driving causing death should also be subject to life imprisonment. We could not agree more.

Senator Andreychuk asked earlier about consultation. That committee did undertake extensive consultations and did in fact prepare the report that I think laid the groundwork for both the legislation last summer and this legislation here today.

The Chairman: I believe that all the honourable senators have copies of that report.

Mr. Griffin: A drunk driver who gets behind the wheel of a car transforms that vehicle into a loaded weapon. He shows a complete lack of regard for his own safety and the safety of others. We advocate minimum sentences for repeat offenders who, eventually and all too predictably, cause death or bodily harm to another person. We certainly support life sentences for the most serious cases.

As this committee is well aware, life does not really mean life. Life imprisonment does not mean life behind bars -- far from it. An impaired driver convicted and sentenced under this provision to life imprisonment could be released on parole after seven years. It does mean that the chronic impaired driver who receives a life sentence would spend the rest of his life, while outside prison, on parole. That is important for dealing with the serious chronic offender.

More important, we think that this bill would send a strong message to judges, prosecutors and Canadian citizens, that reinforces both the denunciation of this crime and the need for more meaningful sanctions. We also support the technical amendments in the bill that strengthen our ability to collect evidence from drivers suspected of impairment from drugs or alcohol.

This bill and the predecessor legislation enacted last summer are positive steps taken by Minister of Justice Anne McLellan in her response to the standing committee report. There is, however, more work to be done. In that report there are recommendations, which remain unanswered, that call for enhanced community education and awareness, improved research and policy development, mandatory minimum sentences or at least the review of mandatory minimum sentences for causing death or bodily harm, improving enforcement and prosecution methods, and making full use of available and emerging technologies.

The Canadian Police Association is proud to be partnered with MADD Canada, the Traffic Injury Research Foundation and the Canadian Association of Chiefs of Police in a combined effort to work with Department of Justice officials to ensure that those recommendations are not left unanswered. We certainly urge this committee to move swiftly with this bill and we urge your colleagues in the Senate to grant its approval at third reading.

Senator Moore: Mr. Griffin, you mentioned some statistics. You said that in 1997-98, 4.5 Canadians were killed each day as a result of drunk driving accidents.

Mr. Griffin: That is impaired driving accidents.

Senator Moore: Is that 1997-98 timing for a fiscal year? How do you do 1997-98? Do you have any statistics for the following years?

Mr. Griffin: I do not, at least not with me today. I have seen that statistic a number of times. I think it refers to a 12-month calendar period over 1997-98.

Senator Moore: Do you not have any figures for 1998-99?

Mr. Griffin: There may be new statistics out.

The Chairman: We will leave that question until MADD comes to the table, so that it will be on the record.

Senator Moore: Has there been any improvement as a result of last year's legislation?

Mr. Griffin: My sense, senator, is that legislation such as this bill or the legislation of last year does not show a change right away. In fact, an offender who was charged in January of last year would not even apply to those statistics. Legislation would address that through time.

Senator Andreychuk: You made the comment that judges are not consistent in applying legislation. It seems to me that one reason for that is that society still is somewhat inconsistent on this issue and the judges mirror that. I should like you to follow-up on your comment on the necessary education.

Mr. Griffin: We have all noticed, as Canadian citizens in our social circles and where we move about, that most responsible Canadians are well aware of the messages about impaired driving. Public awareness has improved tremendously. However, on an enforcement basis, we are faced with competing priorities, so we find that we go through a rob-Peter-to-pay-Paul process. We have flavour-of-the-day policing and if something has grabbed community attention and is a problem in a specific community, then resources are taken from other programs, because resources are tight everywhere, to meet those needs.

In some communities, programs like traffic enforcement are not what they were when they first started. You do not see the same programs. If you do not see the ongoing enforcement in the community, if people are not aware that their neighbours are being stopped, if they are not aware that the police are out there on a Friday night stopping those vehicles, then the perception, the fear of apprehension, is softened for certain people in our communities. They may be more willing to roll the dice and chance driving while impaired.

I am not sure if I have answered your question, but I think that all of those things have been positive. Unfortunately, we are still seeing disturbing statistics on impaired drivers. In my experience, and granted that it is dated, I dealt with a consistent habitual offender. That person had not even gone to court on the most current charge when they were back before me again for another breathalyzer test. There was a blatant disregard for the lives of other people.

I am concerned that not many judges will use this bill. In those extraordinary cases where someone has taken a life and served a sentence and then gets behind the wheel of a car and takes another life, perhaps the judge may see fit to finally impose some consequence. The judge may make it clear to that person that, for the rest of his life, he will be subject to return to prison if he does it again.

Senator Andreychuk: Certainly, in my years on the bench, I found that rehabilitation was not working for that chronic offender. The stiffer sentence did not work. Thus, what we are really saying is that we are going to take them off the road for a longer period of time. That in itself is a safety issue.

Mr. Griffin: I guess that it is proportionality. If that same person were to go out with a loaded weapon and fire from their front porch indiscriminately into the street, you would find that the community and judiciary responses would be much different than if that person were to drive a vehicle and indiscriminately put as many lives at risk. It is perceived to be a different type of action. I think that this bill at least puts those two actions on the same playing field -- manslaughter and criminal negligence causing death -- where there is that total disregard for the lives and safety of other people.

The Chairman: If there are no other questions, I was going to ask you to comment, Mr. Griffin. We contacted a number of different groups to see if they were interested in coming. The Criminal Lawyers' Association was not able to come and the Canadian Bar Association turned us down. The Barreau du Québec sent us a letter that they had sent to Minister McLellan when the bill was before the House of Commons. The letter contains a quote that maybe you could comment on. It stated:

However, section 2 of the bill modifies the applicable sentence when an impaired driver causes death, raising the maximum term of imprisonment from 14 years to life. The Barreau du Québec can only deplore the injuries and losses of life. But as we have already indicated, it is perhaps wishful thinking to imagine that sanctions alone, even more severe ones, will act as a deterrent for offending drivers. The Barreau du Québec believes that the goal of removing dangerous drivers will not necessarily be reached with this more repressive measure.

Mr. Griffin: It sends a strong message. I do not think it will change the behaviour of some drivers. I do not think that it will cause, in the immediate term, fewer people to repeat their behaviour, but we believe that there is a place for meaningful consequences. There is some proportionality with respect to the taking of a life and the penalty to the offender. I do not envision many judges handing out life sentences. However, hopefully this will cause them to consider this offence at a higher level and then to have that discretion in the most outrageous, chronic cases.

The Chairman: Thank you, Mr. Griffin, for coming in on such short notice.

Honourable senators, our next witness is from MADD Canada, Mothers Against Drunk Driving. Welcome, Ms Swinson. Please proceed.

Ms Carolyn Swinson, National President, MADD Canada: Thank you for providing me with the time to be here today. I appreciate the opportunity to present MADD Canada's views on the issue. I have a brief statement to make and then I would look forward to answering any questions you may have.

It was with great enthusiasm that we received the news that the Standing Senate Committee on Legal and Constitutional Affairs was moving forward today on Bill C-18 to return it to the Senate for the third reading prior to the summer recess, which is what we are looking for. The life sentence initiative is a measure that MADD Canada has anxiously anticipated, since it was first stripped from Bill C-82 in June 1999.

I am before this committee today to relate that members of MADD Canada, from coast to coast, wholeheartedly support this significant piece of legislation that extends the maximum sentence for death caused by impaired driving from 14 years to a life sentence. Since the Minister of Justice reintroduced the measure in the House last fall, we have been pushing for the passage of Bill C-18.

At this point I should like to read two of the letters that we have received from the chapters. We now have 45 chapters across the country and we have received many letters in support of Bill C-18. I will read two of the brief ones to you. The first one is from Montreal, and it states:

Dear Senators:

A great number of campaigns directed at heightening our awareness of the dangers of impaired driving are launched during the winter holidays. Many Canadians are unaware that the highest fatalities due to the crime of impaired driving occur during the summer months. But no statistics can adequately represent the full horror of a victim's death.

One such victim was Claudine-Anne Zamprelli.

On a lovely summer night, August 17th, 1997, a collision due to an impaired driver took place. Claudine-Anne was 26 years old. She was loved by her husband, her mother and father and brother, by her friends and colleagues alike. She was a gifted pianist and an accomplished musician. During her first year at University, she was a page in the House of Commons. She had a passion for and a commitment to justice. She touched everyone who knew her in a special way with her charm and inherent goodness. Her smile, even in a picture, could reach out and make you smile right back.

On that lovely summer night of August 17th, 1997, Claudine-Anne burned in her car.

The 21 year-old man, who already had a police record, and who pleaded guilty to impaired driving causing death, received a three-year sentence on November 24th, 1998.

Recently, Claudine-Anne's husband, Jean-François Brière (who was also in the crash on that fatal night along with his sister, Geneviève), walked into a restaurant. Seated in that same restaurant was the man who had killed Claudine-Anne. Her family had not even been informed of this man's release. Clearly, our justice system had failed Claudine-Anne Zamprelli.

The extension of the present maximum 14 year sentence for impaired driving causing death to a life sentence will be giving Canadians a very clear message that this crime will no longer be tolerated.

And we will finally be taking an important step towards achieving justice for the victims of this violent, completely preventable crime.

How can another summer pass without sending out this vital message? For Claudine-Anne and all victims of the crime of impaired driving, MADD Montreal is asking for a swift passing of Bill C-18.

The other letter is from Hamilton. It states:

Good Day;

My name is Deann M. McGlinchey and I am the President of the Hamilton-Wentworth Chapter of MADD Canada (Mothers Against Drunk Driving).

As you are all well aware, impaired driving is a horribly senseless and totally preventable tragedy! And yet, people continue to abuse their driving privileges and still fail to pay the price for their horrendous acts. It is because of this violent crime that I am writing to you today.

I would first like to thank you for your support thus far. However, I must also take this opportunity to urge to you pass Bill C-18 before you break for the summer.

The incidences of impaired driving are heavily increased during the summer months -- please, we beg you, pass this Bill before any more innocent lives are needlessly lost.

At this time I am asking that you take serious consideration of this Bill and pass it immediately. We cannot afford to lose any more time. And we certainly do not want to lose any more lives.

A life sentence for killing someone while driving impaired is a sentence that reflects the severity of the crime! We would be very happy to see this Bill passed by Parliament before the summer begins!

We all know that people will be drinking more, and children will be on the streets more -- let's get moving and have this Bill passed before another innocent life is taken!

We are looking for your continued support!

Again, thank you so much for your support this far! We're looking forward to continued success with Bill C-18.

MADD Canada will be heartened with the message sent by Parliamentarians in the passage of this legislation. From our perspective, it is just and fair for a person who kills to receive from our justice system a maximum sentence of life. Crashes that involve drinking drivers are no accident. Impaired driving is our country's national tragedy. As Mr. Griffin said, an average of 4.5 Canadians are killed every day. For example, looking at the people around this room today, that means that by the end of this holiday there would be nobody left in this room. That is the tragedy that would be caused over the next few days. The tragedy in those numbers is that 100 per cent of the deaths are completely preventable. With the passage of this legislation, parliamentarians are not only recognizing the terrible human toll that this crime takes on our society, they are also indicating that this is an unacceptable fact that must change.

For MADD Canada, it is not so much a case of retribution and revenge of the victims, although that does factor into the equation, as it is having a penalty that actually reflects the severity of the crime. We should not mince words. Death caused by impaired driving is murder. When a person who is drunk gets behind the wheel to fire a two-tonne piece of metal through the streets and hits an innocent bystander, killing that person, it is an act of murder. It deserves our society's most severe penalty.

I should like to make two observations on this point. First, those who drink and drive do not do so once in their lifetime. According to the Traffic Injury Research Foundation study, it takes a person approximately 2,000 impaired driving trips before he or she is caught one time. The number of repeat offenders is even more disturbing and frustrating for many Canadians. Impaired drivers who are caught are not first time offenders. People who drink and drive are people who take calculated risks, probably many times over. They are making the decision to get behind the wheel of a vehicle with total disregard for the laws of our land and for the safety of innocent people with whom they will come into contact. I cannot accept that people in this country do not know that drinking and driving is wrong and can result in irreparable pain and anguish and, in the worst case, death.

Second, this legislation raises the ceiling for maximum sentences. It will be up to our judges to apply the maximum sentence of life. To date, the longest sentences for death caused by impaired driving were handed down in the Ottawa area. These sentences were handed down to repeat offenders who drove drunk once too often. Even though our system has a maximum penalty of 14 years for this crime, given these worst-case scenarios the judges saw fit to deliver sentences of around 10 years. That is the maximum one. Only one 10-year sentence has been given out. I suspect that the court of public opinion would have delivered stiffer sentences. That being said, it is left to the discretion of the judges or the judicial system to determine sentences.

There are far too many needless tragedies in our country, far too much grief and pain resulting from impaired driving. Canadians pay an enormous price for the crime of impaired driving. Stiffer penalties send a clear message to Canadians that our government does not tolerate the irresponsible actions of a drinking driver. Impaired driving remains the number one criminal cause of death in our country. You are three times more likely to be killed by an impaired driver than to be murdered. Given that impaired driving remains the number one criminal cause of death in this country, this message cannot be strong enough.

On behalf of MADD Canada supporters across the country, I should like to express our appreciation to senators on this committee and to your colleagues in the chamber who are acting with great efficiency in reviewing this legislation. I will repeat that MADD Canada's hope is that Bill C-18 passes Parliament before Parliament rises for the summer.

I am grateful for the time that you have given me today. I should like to note that, in my own personal case, two generations of my family have suffered a loss to an impaired driver. My father was killed. My eldest son was killed. I am now expecting to be a grandmother in October. I do not want another generation of my family or anyone else's family to have to deal with what my family has had to deal with.

The Chairman: Thank you very much.

Senator Moore, perhaps now is the time to ask your question about whether the statistics have gone up or down.

Senator Moore: Thank you for coming, Ms Swinson. You were making a comment from the back seats when I was asking a question of Mr. Griffin. Do you have some statistics you can share?

Ms Swinson: We do not have any statistics for 1999, but I believe the last statistics for 1998 indicated 1,680 impaired driving deaths. In the previous year, there were 1,720 deaths from impaired driving. Those numbers decreased significantly during the eight years into the mid-1990s. However, now we are concerned because those numbers are staying static. Many represented in those numbers will be young people, unfortunately. We are concerned that there is a growing population among young people, and there is a concern that those numbers will rise.

Senator Moore: Do you have an age breakdown of the people who died?

Ms Swinson: Yes, we just completed a study last year on youth and road crashes. The study found that 400 young people are killed in vehicle crashes each year. Of those 400 deaths, 40 per cent are alcohol related. Those at highest risk are young people who have gone through graduated licensing and have finished that process. Those people would be in the 19-to 21-year-old age group. The graduated licensing has a zero per cent alcohol tolerance. In other words, they are not allowed to drink at all. The high-risk group is the age group that is after that. There are deaths in the graduated licensing age group, but the most deaths are in the age group just after that.

Senator Moore: Did you just say there are 400 deaths of young people per year between the ages of 19 and 21 years?

Ms Swinson: No, between 16 and 21 years of age. Forty per cent of those 400 deaths are due to alcohol.

The Chairman: Therefore, there are 160 deaths caused by impaired driving in that age group.

Ms Swinson: Yes. That is many high school classes.

Senator Moore: What was the 400 figure?

Ms Swinson: The 400 figure was the total number of youths killed in vehicle accidents.

Senator Moore: Thank you.

Senator Pearson: As you can see, this is not a bill that will pause, but we are very happy to hear from all who have appeared in front of us. In your consultations about sentencing, have you had discussions with judges?

Ms Swinson: It is very difficult to have direct conversations with judges. As part of the work that I do for MADD, I am a victim advocate, which is to be there for the families that are going through the court process. One of the most difficult questions I have to answer is when the victim's family asks me how long a jail sentence the impaired driver is likely to get. That is the toughest question, because when I have to tell them what the reality is, the look on their faces is unbelievable. It is difficult to tell a family that a sentence of three and a half years is likely and that they should not be surprised if it is two years less a day. It is incredibly difficult for the families to deal with that. They have lost someone and they are surprised that that is all the person is going to get as a sentence.

We are hoping that this bill will send a clear message to the judges that we want those sentences raised. The ball is in their hands. If this goes out to judges, it should give them a clear directive that death due to impaired driving is being treated on the level of manslaughter and criminal negligence causing death. To us, impaired driving causing death is no different. We still get very frustrated with people who say that it was an accident, that the impaired driver just went out and made a mistake.

A priest was killed in Toronto. The offender was impaired, but he was not charged with impaired driving. He was convicted of criminal negligence causing death. That judge, in summing up, said that the crime was deliberately committed. The judge noted that the accused had deliberately ingested alcohol and then proceeded to kill an innocent victim, using a car to do it. That is exactly how we feel about it: drinking and getting behind the wheel of a car is a conscious act.

When we talk to the kids in school, we tell them that it is not that difficult to avoid. Before they go out, they should do some planning. It does not sound that difficult. Yet, people still drink and drive. It just needs a tougher approach to get through to those people. I am currently dealing with a case where the person is up for sentencing on July 5, 2000. It will be his fourth sentencing for impairment. That is before he goes to court on September 25 with a fifth charge. In that charge, he took the lives of two people. They were two elderly ladies out for a walk.

Senator Pearson: We have one person here who was a judge, so she can help me on this. Do many judges give reasons for their sentences?

Ms Swinson: There are some precedents -- one of the words I hate. The defence counsel wades through precedents and they are often, I guess, to some extent, led by that. We would like them to get the message that if this law is in place, it gives them the wherewithal to take a stand and go over and above that line -- raise the bar.

Senator Pearson: Do your statistics have figures for when an accident occurs and there are no alcohol or drugs involved?

Ms Swinson: We do not, with drugs, no.

Senator Pearson: How is that usually proceeded with? How do you deal with an accident that causes death when no alcohol or drugs have been involved?

Ms Swinson: The crashes we deal with are just the ones where alcohol is a factor. I can understand that, if there is no alcohol in certain circumstances, people get into situations that are not avoidable, in which case there may be many reasons why an accident is caused. However, we do not refer to injury or the loss of life due to impaired driving as an accident. Rather, we consider that a crash because, as far as we are concerned, it could have been avoided. Impaired driving causing death or injury is a totally avoidable crime.

The Chairman: That might be a good question to ask the officials. We should have them back for a few minutes to ask them about that.

Senator LeBreton: I think that is one of the situations that people do not call an accident. You will see bumper stickers that say, "Drunk driving is no accident." For most people, if a death was an accident it would still be a tragedy, but they would deal with that. However, if impaired driving was involved, then it was a totally preventable occurrence. I think that is the problem.

We hear cases all the time. There was one in Ottawa over the last few days where a man was charged. He was not impaired, but he was charged with dangerous driving because he actually swerved to miss a deer and hit a woman who was on a motorcycle. That man will obviously face charges in the courts. There are other cases that are just deemed to be accidents and they never really go to court. However, an accident is an accident, and this was a crash that was totally preventable.

The Chairman: Thank you very much, Ms Swinson, for coming on such short notice.

I will inform the witnesses here today about the procedure within the Senate so that they do not expect miracles of this group. We plan to proceed to clause-by-clause consideration of this bill tomorrow morning. Then I will present a report of the result in the Senate. It is usual Senate procedure to consider the committee's report at the next sitting of the Senate. Well, the next sitting of the Senate, of course, will not occur until we return in September. Therefore, I intend to ask for leave that it be considered later tomorrow. However, it takes only one senator to stand up and say, "No, leave is not granted." In that case, we will not be able to proceed with it tomorrow. I want you to be aware of the procedure within the Senate itself. If that happens, it will not be the fault of anyone on this committee.

Senator Andreychuk: I know you have the rule, which I very much support, that we have clause-by-clause consideration later. However, having broken a few rules in another committee and incurred the wrath, I am ready to incur the Chair's wrath again.

As I studied that other bill and became comfortable with the motion, I knew the risks. I know that Senator LeBreton has studied this bill, and I am aware of it. I wonder why we could not, since we are moving expeditiously, move to clause-by-clause consideration today. While we are sitting this evening, we could even, perhaps, have leave to introduce it later.

The Chairman: If we did that, and we would need unanimous consent around the table to do it, we would need leave to revert to presentation of reports in the house this evening.

Senator Andreychuk: I am aware of that.

The Chairman: Would that be allowed?

Senator Andreychuk: Let us try it. I thought I had all-party approval on the other one.

The Chairman: The committee is discussing ways and means. I would have no objection whatsoever to proceeding to clause-by-clause later this evening after we have heard the officials once more. Then we will try it.

Could the officials please return to the table? Senator Pearson, you can carry on with your question, please.

Senator Pearson: It is for my own information, because I am not clear about exactly what happens. I certainly understand a charge of criminal negligence. I presume that dangerous driving would naturally bring with it a charge of criminal negligence, would it not? I am talking about cases where death has ensued and there were no drugs or alcohol.

Mr. Pruden: There are two separate provisions in the Criminal Code. One is dangerous driving causing death, which carries a maximum penalty of 14 years' imprisonment. That was placed in the Criminal Code in 1985. The other is criminal negligence causing death. The elements of that offence are more difficult for the Crown to prove. However, the maximum penalty is life imprisonment. Thus, you are right to think that elements of dangerous driving, and worse, would be involved in a charge related to an incident where criminal negligence was involved.

Senator Pearson: In your consultations, have you ever been able to consult, not necessarily with the judges who sentence, but with other judges, as to why they have so frequently given sentences that seem a little shorter?

Mr. Pruden: Judges have the very difficult task of assessing all the factors involved in the case before them. There are many questions to be answered: Who is the offender before them? What is their criminal record, if any? What is their remorse? What is their rehabilitation to that point in time, and what are their chances for rehabilitation? What are the facts involved in the particular case?

I would suggest that there are differences in the sentencing, as well. Keep in mind that you may have a case where the victims who are left behind are very interested to see the person incarcerated. In their minds, it is the fair and just thing to do. In other situations, a parent of the deceased may show up in court to note that it was their son or daughter, the passenger, who was killed, but that it could have just as easily have been the driver who was killed. That parent may tell the judge that they really do not want to see that young person who was driving go to a provincial jail or a federal penitentiary. The judges, of course, have to consider such factors as they prepare a sentence. That may help us to understand why in some cases the sentencing may appear to be different when, at the end of the day, someone was killed in both cases.

Senator Pearson: Thank you.

Senator Christensen: Are there minimum sentences for manslaughter and criminal negligence?

Mr. Pruden: No.

Senator Christensen: There is on murder.

Mr. Pruden: On murder, the only penalty is life imprisonment. Even if the person is paroled, he remains under a sentence of life imprisonment. If parole were revoked, he would be back in jail.

The Chairman: I should like to ask some questions. First, this committee is about to undertake a study on sentencing, so I am picking people's brains. Does the department have any statistics on sentences actually handed down for impaired driving? If so, could you look up that information and send it to the committee? I am not asking you to do it off the top of your head, but if you have any studies or any statistical follow-up on what sentences are handed down for impaired driving, it would help this committee in its study on sentencing.

Ms Kane: We can raise that with our colleague who is general counsel of the sentencing reform team. He has been working with some researchers doing a general analysis of sentencing. They could likely extract statistics.

The Chairman: They might solve our problem right there.

Ms Kane: I think your study will go far beyond a statistical snapshot. Perhaps I am overstating when I say a general analysis. They have been analyzing general sentencing issues. If they can extract sentencing information on impaired driving and related offences, they will be happy to do that and pass that information along. We will bring that request back to the department.

The Chairman: Thank you. Are there any procedures in place to educate the legal profession, the judges, about increases in sentencing such as this?

Ms Kane: A number of different events occur. The Canadian Judicial Institute does continuing education programs for judges. Often changes in the Criminal Code provisions in general are highlighted, including any changes with respect to impaired driving or sentences that have been changed. Similarly, there are continuing education programs in every province for members of the bar. Often, members of the judiciary attend those sessions. Impaired driving is frequently a topic for daylong sessions.

The national criminal law program occurs every summer. The topics vary. One year it will be evidence, another year it will be criminal procedure, and in the third year it is usually Charter issues. During the years they deal with evidence or criminal procedure there are always sessions on impaired driving. Thus, there are many ways this information can be brought to the attention of the legal profession and judges who basically take it as a personal commitment to keep up their education in terms of changes to the law.

The Chairman: What is your response to the letter we received from the Bâtonnier du Québec? The Barreau du Québec believes that the goal of removing dangerous drivers will not necessarily be reached by this more repressive measure.

Mr. Pruden: In a speech in the Senate, Senator Christensen referred to a case presented by the Supreme Court of Canada earlier this year. That case came from the Manitoba Court of Appeals. The Supreme Court decision in R. v. Proulx was unanimous. I should like to read from page 39 of the judgment, paragraph 129:

I point out that the offences here were very serious, and that they had resulted in a death and in severe bodily harm. Moreover, dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties.

I should like to comment further on a question I think I heard earlier today. It is very difficult to isolate legislation from all the other factors that are occurring and the initiatives that are undertaken by provinces, public and private organizations and police enforcement agencies. It is difficult to point to legislation as being the source of the progress that we have been seeing on impaired driving since 1981, when impaired driving charges peaked in Canada. In fact, after the 1985 amendments to the impaired driving provisions, the Department of Justice had the Traffic Injury Research Foundation undertake a piece of work just to see what impact those amendments had.

The Traffic Injury Research Foundation came back with the report that, while there had indeed been progress, it was impossible for them to isolate the 1985 amendments to the Criminal Code as being a cause for the change. They were unable to ascribe what part of the change had occurred as a result of those amendments.

The fact remains that there was progress. The amendments were made. There was a combination of countermeasures. One could perhaps say that in addition to the deterrent factor, there is also a denunciatory factor that accompanies the impaired driving provisions of the Criminal Code. We could say that raising the maximum penalty from 14 years to life imprisonment for impaired driving causing death has a denunciatory affect. It would be used where there is a worst-case scenario -- worst offender, worst circumstances. It also signals to the court that, even for offences that are not worst-case scenario and that do not attract the maximum penalty, Parliament views the offence more seriously and with the same seriousness as manslaughter or criminal negligence causing death. In such a situation, the court may well be inclined to note that, in the past, before the amendment that raised the maximum penalty to life, it would have been inclined to impose a sentence that is slightly lighter than what it would be imposing now. That effect may well be seen.

The Chairman: Thank you.

Senator Christensen: I move that the committee proceed to clause-by-clause consideration of Bill C-18.

The Chairman: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall the title stand postponed?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 1 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 2 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 3 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 4 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 5 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Are there any new clauses?

Hon. Senators: No.

The Chairman: Shall the title carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall the bill carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall I report the bill to the Senate without amendment?

Hon. Senators: Agreed.

The Chairman: Carried.

Honourable senators and witnesses, thank you. This meeting is now adjourned.

The committee adjourned.