Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 9 - Evidence, February 24, 2000
OTTAWA, Thursday, February 24, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-202, to amend the Criminal Code (flight), met this day at 10:51 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: This meeting of the Legal and Constitutional Affairs Committee is now in session and we have before us once again, from the Canadian Resource Centre for Victims of Crime, Steve Sullivan.
Mr. Sullivan, the table is yours.
Mr. Steve Sullivan, Executive Director, Canadian Resource Centre for Victims of Crime: Madam Chair, I am pleased to be invited to participate in the debate on Bill C-202. I have been here before, but for those who have not heard me before I wish to say that the Canadian Resource Centre for Victims of Crime is a national non-profit lobby organization for victims. We work with all levels of government to ensure that the voice for the interests of victims is heard. We try to work, as well, towards progressive justice reform. We are funded solely by the Canadian Police Association.
To begin, I wish to acknowledge the hard work of Dan McTeague, and his staff, in coming with up with this bill and working so hard to get the bill through the House and into the Senate. As you know, it is not very often that you get private members' bills here. The last time that I was here on one was Tom Wappel's bill on criminals profiting. I certainly hope this bill has more success than that one did.
I did not prepare a written brief, largely because of the short time frame. We were surprised the bill had arrived in the Senate so quickly and we commend you for that. As well, there is agreement that everyone supports at least the principles behind the bill. Certainly, from reading the Debates of the Senate, there seems to be overwhelming support, as there was in the other place.
There was also support from other organizations, such as the Canadian Police Association, the Canadian Association of Chiefs of Police, CAA, other victims groups that I worked with such as Victims of Violence, CAVEAT, which is Priscilla de Villiers' group. I know, from families who have lost people due to high-speed chases in different circumstances, that there is support. I think of the case of Constable Richard Sonnenberg. After his death, his sister actually went on a crusade to raise money so that the Calgary Police Force could buy a helicopter. I also think of the more recent case of Sergeant Rick McDonald of the Sudbury police. Approximately two weeks ago, when Mr. McTeague's bill passed through the House, Sergeant McDonald's wife and sister were here to witness that.
There is wide support for the bill. I have yet to hear anyone seriously challenge the bill or challenge the intent of the bill. My first experience with deaths resulting from high-speed chases was when I worked for Victims of Violence, approximately six or seven years ago, and there was a four-year-old boy who was killed. He was driving with his grandmother when their minivan was struck by a car driven by a bunch of young people, who had stolen the vehicle. In dealing with them and getting to know them, I came to appreciate the reality of what can happen when people choose to flee from the police.
When I testified before the House of Commons Justice Committee on this bill, I testified with Mr. and Mrs. Bowman, whose daughter was killed. Their case was before the courts at the time, and I believe it has not yet been settled, so the testimony at the time was sealed. However, just sitting there and listening to them, their powerful testimony reminded me of the importance of this bill and the tragedies that can result when someone does flee from the police.
I would also point out that the justice committee identified this as an important issue when they reviewed the impaired driving provisions of the Criminal Code in their report that they submitted in the House. What is surprising for most people who learn of this bill is that this is not already an offence in the Criminal Code. Most people presume that it is and certainly agree it should be.
Although I do not have any figures on the cost of pursuits, we can all imagine that it is astronomical. More important, though, is the cost in human lives. That is where our focus lies. We are also focused on the numerous injuries that result from people who are involved in accidents through no fault of their own, such as police officers who are involved in the pursuits and officers who try to stop the pursuits by laying spike belts, for example, as well as innocent people who, through no fault of their own, just happen to be in the wrong place at the wrong time, and I hate to use that expression, because they had every right to be where they were.
Someone suggested that the police should simply not pursue anyone, and certainly there are guidelines for police, which they need to have. However, it is not that simple to say that police should never pursue, because if we had that situation then everyone would flee. There would be no reason for anyone to stop, and I believe more of a reason for them to take off, knowing that the police would not pursue them.
From the police perspective -- and, although I am not an officer, I have spoken to many officers -- it would be very easy for police to throw their hands up and say, "I am not going to pursue," but it is a part of their job. It is part of their job to protect public safety, and they weigh that when they decide to begin a pursuit or continue one or call one off. There are many factors that go into those decisions. I do not know if you are hearing from any police organizations, but certainly they would be in a better position to tell you what those factors are, but public safety, I believe, is paramount.
It is important that we focus -- and certainly this bill does -- on the conduct of the offender and not the police. People make a choice either to flee from the police or not to flee. That is a conscious choice and it is important to identify that type of behaviour. From someone who deals a great deal with parole boards, I think it is important for boards like that to understand what the conduct of someone's past criminal record was. It is one thing to have a dangerous driving conviction, when a board is assessing someone's future risk for release; it is a different thing, I think, to have a conviction for evading the police. It is a different action, it is a different intent, and I think it is important that parole boards, judges and Crown prosecutors, who will deal with someone later on down the road, be aware of what exactly it is that someone has done.
We were at a meeting earlier this week at the Solicitor General's Department to discuss the Department of Justice's consultation document on child victims. If you are familiar with the document, the discussion is about whether we should have offences specific to child neglect, child homicide, child abuse, and I think part of the reasoning is that most of those offences could be picked up already in the Criminal Code. However, it is important to identify that type of behaviour, to say that it is different to beat your child than it is to get into a fight in a bar. This is very similar, in that we are identifying particular behaviour and particular motives.
I believe this sends an important message to the public -- the public which supports the message that this type of behaviour is not acceptable and it cannot be tolerated. It endangers and costs lives. When police are involved in a chase, or begin a chase and they call it off, they will have a mechanism now on which to lay charges. If someone is speeding and they continue to do so and police do not feel it is appropriate to continue that pursuit, they can call it off, but they will have a legal mechanism now to charge that person with fleeing.
People make those choices. They are obviously weighing the costs of staying behind and facing the consequences, whether it be a stolen car or speeding. They are weighing that with the chances of getting away and fleeing from the police. One of the intents of this bill is to send the message that the consequences of fleeing will be equal to or greater than those which would flow if you had stayed. Although it will not deter everyone, it will hopefully deter some people from fleeing. We can never prevent everyone from fleeing. Whether there are provincial laws to tighten up on police pursuits, or federal laws to criminalize behaviour, we will never stop everyone from taking that action.
I believe the bill attempts to provide -- and I know there was some discussion yesterday -- some balance between those people who do make the choice to flee and those people who, for whatever reason, have a reasonable excuse -- that they simply did not pull over, they did not see the officer, they did not hear the sirens. The intent of the bill is not to criminalize those people for honest mistakes. The courts will obviously have to deal with that and determine what a reasonable excuse is. It is difficult, at this stage, to define that kind of thing.
I know there were some concerns. I read the transcript that was provided to me this morning. I went through it briefly, and there were some concerns about the sentencing structure of the bill, as well as concerns about the life sentences for individuals who flee and cause death. I would point out, certainly from a practical point of view, that life sentence would be different from a life sentence for first or second degree murder. As you know, those life sentences carry a minimum term of imprisonment without parole. This would be a life sentence comparable to that of manslaughter, where there is no minimum period before parole. Actually, I think the period would probably be seven years.
Senator Cools: I think it is described as life being the maximum, whereas in the other life is the minimum.
Mr. Sullivan: Exactly. It would not be the same as a first-degree or second-degree murder conviction. From a practical point of view, there is a difference between the two sentences. The sentencing structure of the bill sends a strong message to would-be offenders, which is consistent with similar offences in the Criminal Code.
When I was reading through the Senate Debates of February 22, I noted the concern raised by Senator Kinsella about the misuse of the word "court" in clause 3. I commend the senator for noticing that. It slipped by the eyes of many people.
There was also debate yesterday about the "reasonable excuse" and I believe that is an attempt to balance the interests of those who are attempting to flee and those who, for whatever reason, may technically be fleeing, but really do not have the intent or did not mean to.
Once again I thank the members of this committee for allowing me to appear before them. It is always a pleasure. It is a different experience here than it is in the other place, because it is much more stringent in the other place and more partisan. This is much more enjoyable. I hope to be back soon on another bill you have before you, Bill C-247.
I will leave it there and try to answer any questions you may have.
Senator Beaudoin: As I said yesterday, the penalties sound a bit severe, prima facie. Yesterday we had a discussion on the comparison of this bill and what is already in the Criminal Code -- for example, section 249.(1)(a). The comparison is not too bad.
You have had long experience on this question because you are the Executive Director of the Centre for Victims of Crime, and obviously the question of the sentencing is very important for the victims of crime. I should like to have your point of view on this. There is a possibility of death being caused and of a person being liable to imprisonment for life. It may be all right, yet it is very different from death caused in another way. I should like to know what you think about it by comparison?
Mr. Sullivan: It is one of the most severe penalties that we can impose on someone. There is no doubt about that. Certainly, there is a discretion for the court. I think realistically that we will see very few life sentences for this type of offence. If we see any I will be surprised.
We have a number of Criminal Code offences that carry a maximum of life. We do not see that very often. Manslaughter, murder, and aggravated sexual assault carry life sentences. However, I cannot think of one case, off the top of my head, where you actually get that sentence.
There is the discretion for those cases that clearly cry out for a severe penalty. I will give as an example the case of someone who is fleeing, hits perhaps a number of cars along the way, kills or injures someone, and then, while continuing to flee, kills another one down the road. That is different from someone who flees for a while and then pulls over and stops.
There is discretion for the court to identify those rare and very serious offenders who may warrant the maximum penalty. I think it will be very rare that we will actually see those penalties.
Senator Beaudoin: Of course, there are guidelines for the judge in the use of the expression "without reasonable excuse and in order to evade the peace officer." That is the mens rea.
Usually we are worrying more about minimum sentences and a little less about maximum sentences, because what may be against the Charter from time to time is that the minimum is too high. Here, that is not the problem. You still come to the conclusion that the judge has discretion, and in your opinion it is not very often that they would sentence to imprisonment for life. That is your argument?
Mr. Sullivan: That is right.
The Chairman: I would like to follow up on this because of the concern over the phrase "liable to imprisonment." To ensure that everyone on the committee understands, I will read here from the code under term "punishment" generally:
...no punishment is a minimum punishment, unless it is declared to be so in the enactment.
This bill does not declare these punishments to be minimum; therefore the judge does have the discretion to dissent.
Senator Andreychuk: I will pursue that point. If there is discretion to give with such a severe penalty, I question how a judge would exercise that discretion in today's environment. If the judge exercised it on the side of less severity, rather than more, there would probably be a public outcry that the act was not working or the judges were not complying with the intent. I am afraid that within months of its passage people would be urging us to make the act more severe. If we start at the top end, where will we go? I am concerned that we will be moving that yardstick with every case, when we see the way that the public and politicians are responding.
You are in favour of this proposed bill, because you say that people have a choice: they can choose to try to escape or they can choose not to. In all my years as a judge, and in prosecuting and defending, I found that in many cases it was more a matter of human behaviour than a matter of choice. People do something foolish, and then they do not face up to it. It is just an instinct to get away, to run, and to not face the consequences.
I suppose the bill could work as an education tool, if we put sufficient money into advertising it in order to let people know that "running" or "fleeing" is an offence. However, if it is simply passed, I have the feeling that it will be difficult to separate those people who make an honest mistake from those who do not. Do you have a comment on that?
Mr. Sullivan: I have a comment on both points.
Regarding the first point that you raised, there are certainly a number of offences in the Criminal Code that have maximum sentences. Break and enter has a very high maximum, and manslaughter, which covers a whole range of activity, has a high maximum. We see that men murder their wives and then use the defence of provocation to barter the charge down to manslaughter, and they receive five years. The public is outraged.
The broader debate is whether it is helpful for society and the courts to have the huge range of sentences -- you can have six months or life. People hear the life provision and think it will be a high sentence, when in fact it is three, four, or five years. The broader debate is beyond this bill.
I believe that Mr. McTeague wanted to keep this bill in line with the Criminal Code, keep it consistent. We need to have a debate at some point on the issue of people expecting high maximum sentences, and the courts imposing what people perceive as low sentences in comparison to the maximum sentences. It is a debate that is ongoing, and we need to focus on it.
Your other point was about people's choices. This bill is not going to stop the career criminal who has stolen a car and knows it is an offence to flee. He will probably flee anyhow. People who have a couple of drinks and then drive know that if they get into an accident and take off they may be charged with fleeing the scene of an accident, but they will avoid an impaired driving charge. However, if they know that the penalty is equally severe for flight, they might think twice and not flee and not put the public in further jeopardy.
You are right that it is not good enough for us simply to pass a law and expect everyone in Canada to know about it. It requires educating people about the penalties. If we expect them to exercise discretion, they need to know the choices.
Senator Andreychuk: You are absolutely right that when career criminals flee they are making a conscious choice. They made a conscience choice to commit robbery and they make a conscious choice to get in the getaway car and flee. Getting away from the police is just one of the choices they make.
However, with people who have had a few drinks and get in a car, it is sort of human conditioning to run away rather than face the situation. Certainly, the majority of young people with whom I have dealt do not make the proper choice and I am concerned about the number of young people that we will capture under this. With youth, it is often a case of grabbing a car, joyriding, and then running. It is often not a conscious choice to flee from the police. I am very concerned about how this will be applied under the Young Offenders Act. I think you will capture more of them under this section.
Mr. Sullivan: What you have described is the reason we have a separate system for young people. They often do not have the same capacity as adults to process the consequences of their actions. They act without thinking. In the death of the three-year-old boy that I mentioned, part of the fun for those people, in addition to stealing the car, was racing down the highway. In that case, the police had called the chase off long before the accident.
You are right that young people will probably not be deterred by this bill. It is also important, however, for us to identify their behaviour and ensure that they are accountable for it. There are different sentencing structures in the Criminal Code that take into account their age and their ability to process information.
It is, however, important for us to say that it is against the law to run from the police and that there are specific consequences for doing so. If a youth takes a parent's car without permission, that is a hybrid offence. The sentencing judge will consider that and deal with it in the way the courts deal with most young offenders who do stupid things. There are alternative measures, such as community service.
The Chairman: Given the provincial norms in dealing with young offenders, I have some qualms about that.
Senator Pearson: Generally speaking, I think this law is a good idea. One of the things that I like about it is that, as you mentioned, even if the police decide that it is too dangerous to pursue, the charge can still be laid. That will be very helpful because it may get police to stop adding to the danger of the situation.
When the Criminal Code is amended, does the Young Offenders Act also have to be amended?
Senator Andreychuk: Essentially, it says that the Criminal Code applies, with some exceptions. It would then fall in the body of the Criminal Code and therefore be applied.
Senator Pearson: I see. There is an irony there, in that licences are generally obtained at the age of 16, yet the sentences under this would be imposed only at age 18.
Mr. Sullivan: The YOA has its own sentencing structure. The offence would apply but the sentencing provisions would be different.
Senator Cools: Young offenders are not subject to the Criminal Code unless they are transferred to the adult system. The young offender system is totally separate from the adult system.
The Chairman: I have just been told that young offenders can be charged under the Criminal Code, but that the dispositions are under the young offender provisions.
Senator Beaudoin: If I am not mistaken, there is a system of adaptation for young offenders in that sense.
The Chairman: There is a predisposition report required by the court.
Senator Beaudoin: Is it your argument that we see this kind of offence committed more often by young people than by adults?
Senator Andreychuk: We see it in three categories. We see it in serious criminals who are into robberies, getaways, and such things. We also see it in the people in the broader stream of Canadian society who drink and drive and, if stopped for an offence, flee. Then there are young offenders who are in both of those categories. Although they may not be serious criminals, they are engaging in criminal activity. They may be the joyriders who take a parent's car without permission. They panic when they see a policeman and they flee. I have found that young kids often do not consciously make choices.
Senator Pearson: Of the people who do this, it would be interesting to know what percentage falls into each category.
Mr. Sullivan: I can make some inquiries about that. As a point of interest, of the three cases I mentioned, I know that at least two were young offenders and I believe that the third was a young offender who was transferred to adult court.
Senator Fraser: I wish to make an observation following on Senator Andreychuk's remarks about the need for education.
I do not know whether it is within the ambit of this committee to undertake to write to provincial governments, if we pass the bill, to request that this be made part of standard driver education. In driver education, young people now study a book, which I believe is a standard book across the country. They learn it by heart because they are given a computerized test on it and if they have memorized it they can ace the test. That has some effect. I take the point that young people can panic, but if they know the rules there is a greater chance that they will keep their heads and follow the rules.
The Chairman: That is a very good suggestion. I am not sure whether it is within the ambit of this committee, but we will investigate.
Mr. Sullivan: That is an excellent point. Perhaps our organization could undertake to pursue that as well.
The Canadian Automobile Association testified in the committee of the other place. That organization could also help in the education of the public.
Senator Beaudoin: In this country, the Criminal Code is administered by the provinces. They are very involved in the Criminal Code.
Senator Joyal: Mr. Sullivan, does your organization have any idea of the numbers of victims who have been the result of an accident provoked by the kind of driving that we are trying to eradicate in this proposed legislation?
Mr. Sullivan: As far as statistics go, we do not. Perhaps the department does. I can tell you that we have dealt with a number of families who have lost relatives from this type of behaviour, but there have not been great numbers who have come to our group for assistance. We also deal with the planning of the police memorial, and very often police officers are the victims in these accidents.
With respect to the number of people who lose their lives or who are injured, I do not know. I can tell you, from the people I have met, that the emotional toll is incredible. I can undertake to try to find some numbers for you.
Senator Joyal: We all understand the importance of one life and one person's bodily integrity. We all definitely agree with that. The element I am trying to seize in this bill is how wide the situation is. In other words, is bike-riding something that has increased exponentially in the last 10 years and we are now faced with a situation that is much more important socially than it was 30 years ago? And has that had any material effect on the number of injuries and incidents of the nature we are trying to address in this bill?
In the context of this bill, saving one life may justify an amendment to the Criminal Code to protect people. We all agree with that. On the other hand, we must put that into the social or societal context that we are trying to understand here. It seems to me to be an important element to take into account when we legislate, and of course your association might be well positioned to help us understand that. That is why I am asking you those questions.
Mr. Sullivan: I am not sure where the statistic came from, but your colleague Senator Ghitter said that in the past five years, in Canada, 305 people have been injured in flight situations. That is just a rough number, but I will certainly undertake to try to find more exact statistics for the committee.
The Chairman: When you get that information to us we will circulate it to senators on the committee.
Senator Andreychuk: If the statistics are available and can be broken down, I should like to know how many were police officers and how many were innocent bystanders, if that is possible.
Mr. Sullivan: I shall try.
Senator Cools: The bill seems to be directly focused on motor vehicles. That is extremely important. I am informed that in a city like Ottawa, there are 50 motor vehicles stolen per day.
Senator Andreychuk: The figures for Regina are the highest.
Senator Cools: Apparently it is such an enormous number that the police do not even go out any more. When a person phones to say, "My car has been stolen," the police take the report over the telephone.
If it is 50 thefts of motor vehicles a day in Ottawa alone, and I have no idea of the figures for Toronto or Montreal, we are talking about a huge number of stolen cars. According to my rough arithmetic, there must be many criminal offences out there around the question of the abuse or the misuse of cars, and so on.
Do you know the number of people who have been injured in these kinds of situations? For example, of these 305 that you know of who have been injured in the past five years, how many would have been in incidents where the motor vehicle was not only fleeing the situation, but might have been stolen? Do you have any knowledge of that, and could you relate that to the whole question of the enormity of crime around the use of motor vehicles?
Mr. Sullivan: I do not have any numbers. The number that I referred to I got from Hansard. However, I will undertake to obtain some statistics. My guess would be that the majority of people who choose to flee are doing so because they have already done something illegal, and stolen vehicles would be one of the most common situations. We have talked about young offenders; probably a lot of the vehicles stolen are stolen by kids out for a joyride. I would assume that a large percentage of the pursuit-type situations are a result of stolen cars.
The Chairman: Senator Cools, I will alert the officials who come before us to ensure that they come here with answers to these questions.
Senator Cools: Perhaps we could have a witness appear before us from one of the various police forces.
The Chairman: We are working on that right now.
Senator Cools: When they come, just let them know that we are especially interested in that question, because I am told that crime involving motor vehicles is quite significant.
Senator Moore: This is more by way of a comment than a question. It is pursuant to what Senator Joyal was asking Mr. Sullivan.
As a sponsor of this bill, I met with Dan McTeague a couple of times and went over the situation and asked him the same question about the number of incidents involving death or injures. Because there is no offence for this on the books, there are no court records to go to in order to determine the number. However, numbers have been kept by the Canadian Police Association, Mr. McTeague advised me, and that is the source for the numbers over the past five years as provided by Senator Ghitter in his comments in the Senate. The association records that 40 policemen have been killed in the past five years and 305 persons have been injured in flight situations. Whether they were flights involving crime or just a vehicle, I do not know, but those are the numbers and that is the source of those numbers.
The Chairman: We will endeavour to get answers to the questions that have come up today. Hopefully, we will also hear again from Mr. Sullivan.
If there are no further questions, I thank you very much for coming before us today and presenting the point of view of the victims.
The committee adjourned.