Ms. Micheal Vonn (Policy Director, British Columbia Civil Liberties Association):
Thank you, Mr. Chair.
On the subject of impaired driving, of course there are no two sides. We are all on the same side. Everyone advocates for road safety. The only points of contention relate to the best way to achieve that, while maintaining the integrity of the justice system.
In our view, this bill misses the mark in some crucial areas, I'm going to be addressing three aspects of the bill, which are sentencing, procedural protections at trial, and police searches.
To begin with sentencing, this bill contains mandatory minimum sentences that should be reconsidered. The view that general or specific deterrence can be achieved through mandatory minimum sentences is deeply held, but completely mistaken. The evidence shows that mandatory minimum sentences do not deter any more than proportionate sentences reached through the exercise of broad judicial discretion. This is true, even where mandatory minimums constitute a greatly increased penalty.
As MADD notes in their December 11, 2015 report, “...research during the last 35 years establishes that increasing penalties for impaired driving does not in itself have a significant specific or general deterrent impact.”
While failing to provide a benefit in deterrence, mandatory minimums create significant risk of harm. These include excessively punitive and unfair sentences, and shifting the discretion from the public and reviewable process of the courts to the secret, non-reviewable purview of prosecutors.
As research conducted by the Canadian Sentencing Commission shows, plea bargaining increases in the context of mandatory minimums, and this informal criminal justice system serves no one's interests. It can undermine proportionality, equity, and certainty in sentencing, leveraging guilty pleas regardless of culpability, and insulating the process of criminal justice from transparency, accountability, and constitutional safeguards and review.
I have provided the clerk with the link to our association's comprehensive report on mandatory minimum sentencing for your consideration.
Moving to the second point of procedural protections, statutory presumptions and evidentiary matter, in our view there is a very dangerous assumption that appears to be operating in respect of this bill, which is if we reduce the procedural protections for people who are accused of impaired driving we will make our roads safer. This is wrong. We do not increase public safety by putting accused persons at risk of injustice.
This bill would significantly reduce procedural protections in the trial process for those charged with impaired driving through a variety of means ranging from limiting disclosures to the defence, to imposing evidentiary presumptions favourable to the prosecution. None of the procedural diminishments and rights to the accused in the trial process can be justified.
We adopt the submission of the CCLA, which you will be hearing about in a few moments, with respect to the insufficiency of the evidence on the efficacy of drug testing and drug recognition testing. Procedural safeguards that guard against wrongful conviction are always, obviously, dangerous to reduce, but doing so in a setting where critical evidence is likely to be of questionable reliability should not even be considered.
I'd like to draw your attention to evidence that runs counter to the prominent view in some spheres that appropriate prosecutions of impaired driving are regularly derailed.
The StatsCan report, “Impaired driving in Canada, 2011”finds that, “Compared to most...offences, impaired driving cases are more likely to result in a guilty outcome.”
The 2010-11 StatsCan report cites 84% of impaired driving cases resulting in a guilty finding, and this proportion has been maintained in its stability for the past 10 years. There is some regional variation in this proportion, which we see ranging from 81% in Ontario and Alberta to 93% in P.E.I. This is a much higher percentage of guilty findings than for completed cases in general, which stands at 64%.
The evidence from StatsCan is that, for over a decade, impaired driving cases have produced a much higher percentage of guilty findings than have criminal cases in general. It is unclear to me how MADD's paper in 2015 came to cite figures and conclusions that are so different from and at odds with the data presented from StatsCan.
Finally, on police searches and Breathalyzers, arguably the heart of this bill is to provide for randomized Breathalyzer testing, or RBT. It was only yesterday, I confess, that I was able to access a copy of Peter Hogg's opinion on the constitutionality of RBT. Having now received that, we concur in the opinion of our colleagues at the CCLA with respect to the weight of evidence that was relied on regarding the effectiveness of RBT. We have not been able to review this evidence sufficiently in order to come to a definitive position, but it is nevertheless extremely clear that the evidence is highly contested.
Careful attention to methodology is always needed in reviewing studies, and a selective review of studies is always problematic. It is for this reason that systemic studies are so compelling—because they attempt to correct for methodological shortcomings and selection bias. Thus, in our view, the committee should be giving very serious weight to the systemic study of the Traffic Injury Research Foundation cited in the CCLA's submission. That systemic review found no evidence that RBT substantially enhances road safety over our current regime.
Evidence on this subject is, of course, central to the question of the constitutionality of such a provision. Were such evidence to be produced, RBT would be justified and its potential discriminatory impact would nevertheless still be outstanding.
There is considerable evidence in Canada of discriminatory policing, particularly based on race. Even though crucial data for the assessment is often not collected, we are at a juncture where there is great agreement on the need to prevent police targeting of racialized communities.
Advocates of RBT point out that if it is used most often in the context of sobriety checkpoints, then you have a system that is genuinely random and non-discriminatory in its selection; however, proponents of RBT insist that individual officers also be given the discretion to demand testing of drivers outside the context of checkpoints, arguing that remote or rural areas, for example, have resourcing issues that do not extend to having regular checkpoints. Given that these tests would be administered expressly on the basis of having no criteria for suspicion, such unfettered officer discretion facilitates discriminatory selection of drivers.
In our view, RBT, were it to be clearly justified, should nevertheless be limited to checkpoint situations, which proponents concede constitute by far most of the current uses of such programs in other jurisdictions. This would extract the maximum benefit of such programs while still ensuring that RBT use would not be compounding the discriminatory profiling of racialized communities. It would also further facilitate a basis for assessment and review of the program in order to determine whether any changes are needed or justified.
Those are my preliminary comments.
Ms. Abby Deshman:
Thank you very much for the opportunity to appear before you today.
I am Abby Deshman. I'm a lawyer and program director with the Canadian Civil Liberties Association.
Like the BCCLA, we fully support the goal of this bill. We know that impaired driving is a serious concern in this country. The government clearly has a strong role that it can and should play in combatting this persistent social problem. We know we can do better. Unfortunately, we don't think that this bill, in its current form, is the right answer.
This afternoon, I'll touch on four specific areas of concern. I do have a written brief, but unfortunately it wasn't here in time for the official translation. It is lengthy—it ended up being 19 pages—but I'll go through what I can.
The four areas are as follows: mandatory minimum sentences and fines; the imposition of consecutive sentences; random breath testing; and the new statutory presumptions in the drug-impaired context.
First, simply put, mandatory minimum sentences do not work. They are ineffective and unjust. Decades of research has clearly shown that stiffer penalties do not deter crime. The mandatory minimum sentencing and fine regime that's in place in this bill will not deter drunk driving. It will, however, constrain our courts and impose unjust sentences on a subset of the population that have committed these crimes. Mandatory minimum sentences are a failed public policy experiment, and we think they should be ended. We did welcome the comments of Mr. Blair in the House of Commons. He said that the new mandatory minimum sentences would be removed or should be removed from this bill and he encouraged this committee to do so. We fully support that step; we think we should go further in Canada.
If you just remove the new mandatory minimum sentences, that will still leave a whole slate of mandatory minimums that were in existence before this bill was proposed, including a set of mandatory minimums that were harshened as recently as 2008 under a previous government. We do not think that they are necessary in order to combat impaired driving.
We similarly believe that mandatory minimum fines are not useful in combatting impaired driving. There is no reason to think that where mandatory minimum sentences do not deter crime that fines will somehow be more effective. In fact, fines operate to discriminatorily target those who do not have as much money as other Canadians.
Mandatory minimum sentences may impose unjust sentences on some Canadians. Mandatory minimum fines will always impose unjust sentences on those who are living on social assistance or disability, whereas they will not be a hardship for wealthy Canadians. That kind of sentencing regime is unfair. We don't think it's necessary. It does not contribute to public safety, and we encourage this committee to repeal the mandatory minimum sentences and fines in this bill.
Of secondary concern is the imposition of consecutive sentences. I know this has been addressed in the House of Commons as well, so I'll be brief, but proposed subsection 320.22 (2)—that's the mandatory imposition of consecutive sentences for impaired driving causing death— is extremely concerning, and, we believe, unconstitutional. The mandatory minimum for impaired driving causing death in this bill right now is five years. That means that one accident, which tragically kills more than one person, will result in 10, 15, 20 or more years of a mandatory jail sentence. For us it's clearly a contravention of the right to be free from cruel and unusual punishment. It needs to be removed from the bill.
Our third area of focus is the expansion of arbitrary police stop and search powers through the introduction of random breath testing. As you will be able to see from our written materials, we have significant concerns about the likely impact and ultimately the constitutionality of this new proposed power. We have looked at the extensive research that has been published relative to the Canadian context in papers as well as Mr. Hogg's opinion. We do not believe that the key question in Canada, the most relevant question in Canada, is answered by the existing literature.
For Canada, what we need to ask is not whether random breath testing is effective; it's clear that it is. It is clear that random breath testing does work. What we need to ask is whether it will be more effective in deterring impaired drivers than is our current regime, which involves selective breath testing and which we have had in place for many, many years. That is the question that is extremely difficult to answer and I think, frankly, it is not possible to answer with regard to the existing international comparators and research.
There are two main problems with the studies and international comparisons that I've seen.
First, while it's true that the introduction of random breath testing has been revolutionary in many countries, the vast majority of those jurisdictions did not have any roadside testing program before they introduced random breath testing, so we're not comparing it to the situation in Canada, which has had decades of RIDE programs in which drivers are stopped on the side of the road; we're comparing it to a situation of having almost no real enforcement at all.
As a result, in Canada we have had our own revolution in impaired driving due to selective breath testing, as well as other initiatives. We've seen the percentage of driver fatalities involving alcohol drop from 62% in 1981 to 33% in 1999, and we are now below that. It has definitely slowed down in Canada in the past 10 years as it has in other countries where random breath testing has been implemented.
Given the significant legal, cultural, and educational shifts that have occurred in this area over the past few decades we do not think that other jurisdictions' early experience with random breath testing is a useful comparator for Canada. We are simply not in the same place as those countries.
Second, while there are a few jurisdictions that did implement selective breath testing first, followed by random breath testing, they also introduced a host of other measures to combat impaired driving at the same time. I have some examples. I'll leave them to the question period if you're interested.
But it is extremely difficult to separate the impact of random breath testing from the other initiatives they also implemented. Many of these jurisdictions drastically increased enforcement at exactly the same time as they implemented random breath testing. They also had very large media campaigns, very large education campaigns, and it's simply not possible to tease apart the impact of implementing random breath testing and all of the other considerable efforts that went on at the same time.
As summarized by the Traffic Injury Research Foundation in 2012:
||...the available evidence supports both...[selective breath testing]
—which we already have,
||—and ...[random breath testing] and suggests that what really matters is the balance between enforcement levels that are sufficiently high and publicity about the enforcement to establish the required general deterrent effect.
As a result of this review, we view the projected impact of random breath testing implementation in Canada as more speculative than certain, and we view some of the papers that we have read championing random breath testing as overly optimistic assessments of what that evidence actually demonstrates.
On the other side of the scale, we're deeply concerned about the additional impact that an additional arbitrary police search power will have on individuals, and in particular those who come from minority communities. The current proposal would not limit this search power to stationary checkpoints, where discretion is curtailed and therefore the risk of racial profiling or other improper exercises of police powers is reduced. Those who are already disproportionately stopped while driving will now not only be pulled over and questioned, but required to exit the vehicle, stand on the side of the roadway or sit in the police cruiser, and provide a breath sample.
I have never been pulled over to have my licence registration or my sobriety checked, and I have actually never gone through a ride checkpoint. I am not the person who experiences this. But for those individuals who are singled out disproportionately and required to submit to a Breathalyser, they will frequently be...experience that is humiliating, degrading, and offensive. This is not necessarily something that is going to be quick and happen within a car.
This factual background, the speculative benefits of random breath testing in Canada with the significant extension of police powers, underlies the constitutional analysis that we provide in our submissions. You recognize that, again, there are very learned written opinions that have suggested that this power be constitutional. We take a different view.
Our own conclusion is that the implementation of random breath testing as currently proposed would raise significant constitutional issues and is likely an unjustifiable violation of section 8, arbitrary search and seizure, and section 9, arbitrary detention, of the charter.
Finally, I'd like to say a few words about some of Bill C-226's statutory presumptions. You will hear, I think, from the Criminal Lawyers' Association about the elimination of the Mohan test for evaluating officers. That is the requirement that they be certified as experts in individual cases. We share those concerns.
We are also very concerned about the evidentiary presumption related to drunk and impaired driving that is in proposed new subsection 320.32(7). Briefly, that new subsection would use consistent results from a drug evaluation officer, the results that are consistent from the DRE evaluation and the bodily fluid analysis, to establish a statutory presumption that this drug was the cause of impairment at the time of driving. Basically it takes the two results from those two tests and says that if they're consistent, we will presume that this person was impaired by this drug at the time of driving.
Both of these testing mechanisms, though, the DRE evaluation as well as the bodily fluids analysis, are flawed in their own ways. In a Canadian study of DRE evaluations, one in five innocent individuals who had not taken any drugs was wrongfully identified as impaired. That's 20% of people who had not taken any drugs.
Saliva and urine samples are also very limited in their utility. Those who have taken drugs many days, weeks, or even months previously will often receive a positive drug test, depending on the type of drug or the specific bodily sample that was run.
Simply put, you cannot take these two pieces of information and combine them to create a presumption in the way that this bill does. It seems to be trying to mirror the breath-testing regime. The science on breath testing is much more reliable, much more certain, and much less varied than the science on drug impairment. We think if you keep these presumptions in, they will lead to wrongful convictions and imperil the presumption of innocence.
Mr. Michael Spratt (Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association):
I'll try to be as efficient as that.
I guess the first step is to dispense with my normal pleasantries and get right to the heart of things. This is a massive bill, and we won't have enough time to cover everything. I submitted a 32-page brief. I decided to one-up my friends here. I did crib a little bit of their work, though, so credit should be given. In typical criminal lawyer standing, I submitted it late last night. It's not yet been translated, but I'm happy to answer questions and follow up if anything comes up.
The CLA supports legislation that's fair, modest, and constitutional. While the CLA supports the objectives of protecting society from the dangers of impaired driving, we are unable to support this bill in its current form. The CLA cannot support legislation like this in its current form, or actually not much of this legislation at all. Nonetheless, in my written brief I offer some suggestions for amendments should this committee come to a different conclusion.
This once government bill, now introduced as a private member's bill, requires a real enhancement of scrutiny and study commensurate with the massive changes it brings to the Criminal Code in relation to impaired driving and related offences. Changes as fundamental as those proposed in this bill should be the subject of extensive review, full justice department reports, broad consultation, and ideally an examination by a body such as a law reform commission.
I do adopt the submissions of my friends as our own, in addition to what I'm about to say.
In our view, any provision of this bill that imposes mandatory minimum sentences, fine or jail, must be removed, and current mandatory minimums should be examined. Mandatory minimum sentences are an ineffective method of achieving the principles of sentencing. Minimum sentences are a one-size-fits-all solution that sacrifices fairness and proportionality without any resulting increase to public safety. Minimum sentences result in economic costs, place undue burdens on the correctional system, and, perhaps more importantly, they devalue the principles of judicial discretion and basic fairness. The mandatory minimums contained in this bill are unconstitutional.
We are also deeply concerned by the new random breath-testing regime. Increasing police powers does not come without societal cost. The experience of carding or street-checking—disproportionate arrest and charging of visible minorities for marijuana offences—makes this clear. The exercise of police authority can and does disproportionately affect visible minorities.
There are opinions, which I'm sure this committee will hear, that come to a different conclusion and suggest that the random breath-testing measures in this bill are constitutional. I would suggest that the evidence that those opinions rely on should be examined very carefully. Even if that evidence is correct, it's only the most charitable view of the circumstances of those random breath tests that will pass muster. I give an example in my paper of some situations that would not pass muster at all and that I think would be offensive to many members on this committee.
Bill C-226 also represents a significant expansion of state powers and contains numerous evidentiary shortcuts. I don't want to minimize it, because they're not really shortcuts. They're shortcuts to the pre-existing shortcuts. Those shortcuts risk trial fairness. They include, as outlined in my paper, number one, charges to the very offence of driving with a blood alcohol level of over 80 milligrams. That would no longer exist. It would be having a blood alcohol level of over or equal to 80 milligrams within two hours of driving. These are massive changes.
The de facto reverse onus provisions included in this bill are problematic. The presumptions about blood alcohol level represent a dangerous shortcut that needs careful evaluation. The relaxed standards with respect to obtaining breath samples for the purposes of screening should be of concern as well, as is the complete relaxation and abdication of any judicial oversight with respect to the evaluation of expert evidence that this bill, in some cases, makes definitive with respect to guilt or innocence.
These shortcuts will impact trial fairness. They will engage significant charter concerns. Ultimately, and perhaps more importantly, these shortcuts will devalue and limit the quality of evidence that's presented in our courts.
Finally, there are some sections to the bill that are unquestionably unconstitutional such as the amendment that permits the use of compelled statements for the purposes of grounds to make a breath demand.
The Ontario Court of Appeal and the Supreme Court, over the last 15 years, have found this to be a violation of the charter that's not saved by section one. There's no need to have a Supreme Court reference on the section. We already have it, and the results are not good.
In light of the breadth of this bill and the massive changes the study detailed here—but limited—that this bill will receive, we simply cannot support this legislation, and I would urge the committee to carefully examine our written submissions along with our detailed suggestions for amendments should this committee see fit to approve any of these sections.
Mr. Sven Spengemann:
I was just going to say, if I don't take up the full seven minutes, I'm happy to delegate some time to Mr. Mendicino.
I'm going to take you right to the heart of what I think some of the controversy relates to, and that is the issue of random testing.
This bill brings into conflict or into the discussion two very important currents of thought. One is the level of condemnation of drunk driving offences, which is probably akin to other forms of homicide or racially motivated crimes. It's very high in the minds of the public. Then, of course, our civil liberties, procedural rights, and charter rights....
I'm going to put to you the idea that the very concept of randomness is misplaced here because the human mind rarely, if at all, does anything randomly. So, when we talk about randomness, are we talking about randomness from the perspective of the motorist who or may or may not be caught in a traffic stop or from the perspective of the police officer who has, in my view, full discretion under this bill to decide whether to apply the breath test to somebody or not?
It isn't just racial minorities, I would put to you, who are potentially negatively impacted. It could be old people, young people, women, or people driving pickup trucks. There's all sorts of room for discretion on the part of the officer when she decides whether or not to apply the test. The only way to truly randomize that decision is for her to punch the licence plate into a computer, and the computer, on a binary random selection, spits out a yes or a no to apply the breath test.
I think we're outside of the domain of randomness, and I wanted to ask you if you agree with that, and if we are, if that strengthens the argument—presumably, it does—in terms of not following through with this provision. But if we left randomness in, you'll in see in 320.27(3), it is really only the title of that paragraph that says “random testing”.
Would the bill, as it's currently framed, lead to the possibility of a non-randomness defence? In other words, if somebody was pulled over by an officer and then some research reveals that, yes, she does pull over everybody who drives a pickup truck but not anybody else, would that, in your mind, lead to an avenue of criminal defence that really is an unexpected consequence of the bill?
The second question, time permitting, is to take a broader look at the principles that we're expounding here and let us know your views on how they may or may not apply to the question of legalization of marijuana. In terms of resources of committee time, we're working here on a bill that may well be a forerunner to questions that arise on legalization. We want to get it right, if possible, on both fronts, as early as possible.
Mr. Larry Miller:
Thank you very much, Mr. Chair.
I hardly know where to start, but thank you very much to all the witnesses for being here.
We all want to see the tragedies caused by impaired driving ended, but personally I have quite a problem with this bill, for all the reasons that all of you have mentioned here today.
In the short time that I have, let me say that I've already been contacted by a member of one of my native reserves who was concerned should an officer who maybe has a dislike target somebody on the reserve or that kind of thing, and I think you've pointed that out here.
Mr. Spratt, could you explain briefly what a compelled statement means? I'm not a lawyer, and I wasn't aware of that term.
Secondly, I'll let the two ladies here comment, if they could, on impairment by alcohol, drugs, prescription drugs, texting, or whatever. Even driving down the road texting impairs your ability to drive, and in terms of treating one form of impairment differently from the others, is that a legal issue out there?
I'll leave it at that.
Mr. Daniel Therrien (Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada):
Thank you, Mr. Chair.
Members, thank you for the invitation to appear before you today to discuss Bill C-226.
As you mentioned, Mr. Chair, I am accompanied by Patricia Kosseim, senior general counsel of my office.
I would like to be clear from the outset that I fully understand the seriousness, societal impact and clear dangers of impaired driving. Impaired driving affects far too many Canadians each year and is indeed a grave social problem.
At the same time, the legislation you have invited comment on is multi-pronged. I will focus mainly on the issue of random checks.
In upholding random vehicle stops for the purpose of police questioning to check for sobriety, the Supreme Court of Canada has taken into consideration several factors, including the compelling state objective of ensuring highway safety; the limited purposes connected to that objective and grounded in appropriate statutory authority; the invasiveness, effectiveness and proportionality of the police activity; and the reasonable expectations of the individual as informed by the context.
For the purposes of analyzing the bill before you, among the factors I just listed, the state objective of ensuring highway safety is certainly compelling. However, let me address some of the other important policy considerations such as random breath screening and disclosures of various test results.
As you will note, subsection 320.27(3) of the bill introduces a new ability for police to require individuals operating a conveyance—whether in motion or not—to immediately provide a breath sample on demand for random screening using an approved screening device, where police have an approved screening device in their possession.
Currently, this type of breath screening test can only occur where the police have reasonable grounds to suspect that an individual has consumed alcohol.
In assessing whether it is reasonable to move away from the suspicion standard, I would suggest that Parliament consider the following factors.
First, how invasive would a new state power be, compelling everyone to provide a breath sample on demand? While more intrusive procedures are certainly possible—for instance, the taking of a blood sample—I would suggest that there is a level of intrusiveness in the mandatory procedure suggested, particularly for individuals who are not suspected of any wrongdoing.
Second, how necessary is it to move from the suspicion standard to random sampling in order to reduce the occurrence of impaired driving? To what extent has the current system proven effective or ineffective, and what is the evidence for this?
Third, what does the experience of other countries show, from an evidentiary perspective, as to how much more effective the proposed system in Bill C-226 would be?
I do not have the evidence required to answer these questions, but I do think that these would be relevant questions to ask of those who are proponents of this bill.
Furthermore, I would be remiss if I did not remind members of the privacy risks inherent in a collection that is over-broad and could potentially open the door to disproportionate targeting. I would add that, if you are inclined to approve random testing, I would encourage you to consider prescribing conditions to prevent arbitrariness, a certain way to organize this random testing so that it is not purely at the discretion of individual peace officers.
The other substantive privacy issue I would like to raise is the broadening of purposes for which test results and analysis of bodily samples can be shared.
Proposed subsection 320.37(2) would permit the sharing of the results of any evaluation, physical coordination test, or analysis of a bodily substance, for the purpose of the administration or enforcement of any federal or provincial act. Currently, the use and disclosure of this type of information is restricted to specific Criminal Code, Aeronautics Act, and Railway Safety Act offences, or administration enforcement of provincial law. The bill clearly would widen the potential uses and purposes for which such results may be utilized by authorities.
While I began my testimony by agreeing that ensuring highway safety is a compelling state objective, the same cannot be said about the administrative objectives of all other federal or provincial laws. Therefore, in considering this question of broader sharing, I suggest that you examine whether the objectives of these other laws, for which results could be shared, are sufficiently important to justify the sharing of sensitive, state-compelled personal information. I further suggest that sharing should be limited to those specific laws that meet that standard.
You may also wish to prescribe that the results of random tests, once they have served their purpose, should be destroyed. That would be another way to minimize privacy risks.
In summary, I would encourage members to consider the fuller privacy implications of random breath screening and the broadening of purposes for which results can be shared using the analytical framework proposed.
I look forward to your questions.
Dr. Thomas Brown (Assistant Professor, Department of Psychiatry, McGill University, As an Individual):
My name is Dr. Thomas Brown. I'm a senior researcher and director of the addiction research program at the Research Centre of the Douglas Mental Health University Institute in Montreal; assistant professor in the Department of Psychiatry, McGill University; and a licensed clinical psychologist in the province of Quebec. I'm also a mental health specialist designated by the U.S. Consulate to Canada to assess non-U.S.-citizen visa applicants who are suspected of suffering from substance use disorder related to harmful behaviour, mostly impaired driving. My expert opinion is sought as part of the U.S. visa waiver program, and I have provided it hundreds of times. I am honoured to be provided an opportunity to participate in this session.
Mr. Chair, I would like to express my opinion on two issues with respect to my understanding of the amendments to Bill C-226. The first issue is a general one and relates to value of increasing severity of punishments following a conviction. The severity of punishment to a conviction sends an important message and may on its own deter some individuals from this criminal behaviour. At the same time, my understanding of the available evidence is that the deterrent effects of sanctioned severity are achieved when they are coupled with certainty and celerity in the enforcement of relevant laws. This is also observed in other forensic contexts.
Clinically, while I observe that sanctions in many cases do hurt and appear dissuasive for many offenders, they are frequently seen as unjustified and prosecutory by many other offenders who I and other authorities would consider the most at risk for recidivism and therefore the ones we should be most worried about.
One aspect of this response is that these drivers have probably driven many times, if not by some estimates hundreds of times, without being arrested or suffering mishap. This personal experience is a powerful narrative that distorts their risk assessment when deciding to take the wheel of a car, especially after drinking excessively. They often say, “I can do it”, “I have done it plenty of times in the past”, “I'm only four blocks away from home”, etc. Indeed, it competes quite successfully, especially in a significantly impaired state, with any deterrent effect from the remote possibility of an arrest and other severe negative consequences, including injury.
Our research, as well as that of others, runs in the same direction as these clinical observations. Changing this narrative for offenders requires something more, and measures that facilitate and enhance the use of highly visible enforcement measures, and in particular the addition of checkpoints and random roadside testing, will go a long way in making severe sanctioning more persuasive for primary prevention as well as prevention of recidivism.
My second issue, Mr. Chair, relates to the provisions regarding blood alcohol concentration as a benchmark for an aggravating condition for sentencing purposes. The meaning of BAC in impaired driving is surprisingly controversial. Excessive alcohol use is a necessary precondition for impaired driving, though the actual BAC level for per se conviction is very arbitrary. BAC is an established marker of crash risk, which rises exponentially as BAC increases. Increased risk for injury from all causes starts much lower however, at .02, and, by the time it reaches .05 or .08, it is already several-fold greater than zero BAC. Hence, it is a good marker for impairment and crash risk and is pragmatic as well.
At the same time, the available scientific literature suggests that arrest BAC has not been proven to be a particularly reliable predictor of recidivism risk. Therefore, this confuses me as to its justification as part of a deterrent strategy and possibly triggering more severe sanctions. What does this provision seek to accomplish? Most impaired drivers do not intend to break the law or harm others, but they still must take responsibility for their criminally negligent behaviour.
We have set our criminal per se threshold at .08%, and the law is the law. We have selected the current per se limit for many reasons, but in terms of riskiness and the degree to which it impairs judgment, .08% is already significant. For most Canadians, it represents an excessive amount of alcohol intake. In my opinion, this amendment seems to be saying that being arrested at a BAC of .08% is bad, but a BAC of .12% is worse, even if a crash had not occurred in either case.
We have set a reasonable, some would argue excessively liberal, per se limit for impaired driving. Why would we want to diminish or confuse the significance of our current benchmark by adding another higher benchmark?
Another facet of this concern relates to the utility of an arrest due to BAC. As noted above, an arrest has not proven to be a particularly reliable predictor of recidivism. I also have never heard an impaired driver report to me that being impaired at over .08% was not enough, and that they were motivated to be even at a higher BAC level when driving.
More typically, they drink excessively, frequently to the point of being over the per se limit while having access to a vehicle, and the proclivity to drive it. To what extend they drink over the per se BAC limit involves factors other than greater negligence or more disregard for the safety of others. Indeed, most individuals do not and cannot drink that much.
Impaired drivers frequently report that they felt fit to drive just before an arrest, which we and other researchers hypothesize is a signal for disordered drinking. Moreover, highly elevated BACs suggests the capacity for drinking a lot of alcohol, which again flags the possibility of tolerance, which is also a signal for disordered drinking. In other words, the ability to appraise the level of impairment, which is already difficult for most people, frequently appears even weaker in impaired drivers, and they are also more likely to suffer from bona fide alcohol use disorder.
From this perspective, an arrest due to BAC is likely a more useful indicator of disordered drinking and alcohol use disorder than risk for more impaired driving. Both are characterized clinically by poor control over drinking.
Raising sanctions in the case of a highly elevated BAC risks punishing individuals who are more likely to have a problem that, in many cases, would meet thresholds for alcohol use disorder. In these cases, punishment is an inappropriate deterrent or preventative measure.
In many jurisdictions, an arrest due to BAC is used for remedial and therapeutic decision-making during re-licensing. I consider this to be the more appropriate method to intervene in disordered drinking indicated by elevated BAC, namely as a public health strategy rather than a legal strategy for deterrence or punishment.
Dr. Marie Claude Ouimet (Associate Professor, Faculty of Medicine and Health Sciences, Université de Sherbrooke, As an Individual):
Mr. Chair, committee members, thank you for inviting me to appear.
I am a professor and researcher at the faculty of medicine and health sciences at the Université de Sherbrooke. My main research areas are impaired driving and young drivers.
In fact, I too would like to offer you suggestions for clarification of the new subsection 320.27(3), which deals with random testing and its definition. I would suggest that the wording of the proposal be clarified. Can we talk about random testing, mandatory testing during specific police action to reduce impaired driving, or mandatory testing at any time under any circumstances when operating a vehicle? There are significant differences between these three definitions.
First of all, when we talk about something random, we often say that it is done or chosen haphazardly. So a string of random tests should be generated, for example, using a sequence of random numbers. That sequence would indicate which vehicles should be stopped to subject the driver to a breathalyzer, or which drivers stopped for various reasons by the police should provide a breath sample. These random techniques are already used by customs officers, who can ask travellers to press a button on a device, which will indicate whether the person will have to undergo a full search.
The word “mandatory” will be defined as “that which is required by law, and which cannot be escaped”. Therefore, the word “random” is not a synonym for the word “mandatory”, whether it's considered during specific police actions or at any time and under any circumstances when operating a vehicle. However, the words “random” and “mandatory” could be used to describe two types of compatible activities, which I will describe later.
The definition of “random testing” found in subsection 320.27(3) is instead similar to the description of mandatory testing, at any time and under any circumstances, when operating a vehicle. It in no way suggests the notion of randomness or of reasonable grounds. It even suggests the obsolescence of reasonable grounds since mandatory testing at any time will include reasonable grounds.
So, it seems to me that the definition in subsection 320.27(3) allows mandatory screening other than that done in the context of specific police action to reduce impaired driving in which all drivers are stopped. The wording also suggests that mandatory testing could be done by officers of the peace who work singly or in pairs. It does not include the screening of all drivers without the need for reasonable grounds to suspect alcohol consumption.
I would suggest supervising these police actions that don't involve the systematic mandatory inspection of all drivers. It might be possible, for instance, to use a random sequence to determine which vehicles to stop, or a random sequence of controlled drivers, once they have been stopped for various reasons. A random sequence could be archived to show the public the random nature of the requested mandatory testing, and also to protect the work of the police. This involves combining the random selection, made at random, with the mandatory testing. Random selection could also be used when there are high traffic volumes, for example, and the police don't want to stop everyone.
In short, it is recommended that the meaning of the terms “random” and “mandatory” be clarified. In addition, there is a grey area in the definition of mandatory testing in the circumstances in which all drivers are not tested systematically and there aren't reasonable grounds to suspect alcohol consumption. Therefore, combining random testing and mandatory testing in these circumstances could help to make the public feel that their rights are being respected, while participating in the demonstration that the probability of being tested is high. It would also help to protect the work of the police.
I would like to raise another point. Mandatory alcohol checks seem associated with reducing impaired driving. however, as the document prepared by the Canadian Centre on Substance Abuse summarizes well, the number of checks that should be done in Canada to reach reduction targets is in the millions.
This will require that, in tandem with the changes, the provinces and police forces need to be given the capacity to put in place these procedures relating to educating the public, police officers and judges. It will also be important to think about the costs and the personnel required on the ground.
In addition, considering the scope of the proposed bill and its ramifications for the codes of the various provinces, as well as the need to inform and train all parties, I suggest an effective date much later than 90 days. There must be a minimum of nine to 12 months on the ground so that all stakeholders can be ready and fully understand all the proposed changes. The objectives could therefore be achieved much more effectively.
I also wish to give my support to paragraph 320.27(2)(d), which states that the fact that the person's involvement in an accident that resulted in bodily harm to another person may amount to reasonable grounds to suspect that a person has alcohol in their body. I think this initiative is important both on the ground, after a collision, and to screen injured drivers who are sent to the hospital.
On one hand, adding the involvement in a collision to the reasonable grounds to suspect that a person has consumed alcohol gives police the ability to identify the collision as a reasonable ground, whey they often had difficulty doing before. On the other hand, paragraph 320.27(2)(d) is a possibility for the police, and not an obligation. I think that mandatory testing is necessary in the case of a collision with injuries.
If testing becomes mandatory or more easily constitutes a reasonable ground to suspect that a person has consumed alcohol, it does not mean that it will be applied systematically. My general suggestion is that the provinces and heads of the police forces in the various jurisdictions strongly suggest to the police that they apply testing, otherwise take the necessary measures to systematically test all drivers involved in collisions with injuries who are taken to the hospital.
The information collected as part of these actions could help to demonstrate that the probability of being tested is high, which is what everyone wants. It would also help to better assess the extent of alcohol use in collisions with injuries.
To conclude, I would also like to extend my support to the elements that will enable police officers to take samples from injured drivers at the site of an accident. We know that the majority of drivers who are injured in a collision and taken to the hospital and whose blood alcohol above the legal limit are not convicted. A review of the 2015 documentation by Robert S. Green and his colleagues, which covers five Canadian studies, reveals that the conviction rate in these cases is below 20%. Several factors explain these low rates. In particular, there is the difficulty in identifying the type of intoxication and obtaining an eligible sample. There is also a lack of resources to apply the law properly.
The changes to the act, including paragraph 320.27(2)(d) that adds collisions with injuries to the reasonable grounds to suspect that a person has consumed alcohol, and the changes that describe the procedure for issuing warrants—think of the longer delays in obtaining them—will make it possible to consider several problems described in the review of the documentation.
However, it's also important to note the need for more assistance in applying the legislation. It sometimes takes the police a long time to proceed in the case of hospitalization. I strongly suggest giving the police forces the capacity to use these new procedures to maximize their effectiveness.