JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, February 11, 1999

• 0940

[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): I'd like to call the meeting to order this morning.

Our witnesses are, from the Canadian Council of Criminal Defence Lawyers, Edmond O'Neill and Ravi Prithipaul; from the Criminal Lawyers Association of Ontario, Mike Neville; and from the Ministry of the Attorney General, Andrejs Berzins.

Gentlemen, we'll keep the presentations to approximately ten minutes each, and then we'll open up to our committee for questioning.

Would one of you like to start—Mr. O'Neill, perhaps?

Mr. Edmond J. O'Neill (President, Canadian Council of Criminal Defence Lawyers): Thank you, Mr. Chairman, ladies and gentlemen.

By way of introductory remarks, Mr. Prithipaul and I represent the Canadian Council of Criminal Defence Lawyers.

Let me say at the outset that we, as lawyers and as citizens, are indeed concerned about the problem of impaired driving in this country. We're not proponents of impaired driving, and we don't come here today urging you to pass lighter laws or impose lighter penalties. What I think we want to attempt to ensure, and what I think we are all striving for here, is fairness—fairness in the detection of impaired drivers, fairness in the prosecution of these offences, and fairness at the penalty stage for those convicted of impaired driving.

Before Mr. Prithipaul addresses some of the specifics, let me make one observation and leave you with one cautionary note.

First, I sincerely question why these proposed changes to this legislation are being debated now, as we don't sense that impaired driving is on the increase. Conversely, it's our experience that the number of impaired driving charges are down and that the present legislation is in fact having the desired effect. I would add that conviction rates for these offences are very high. Most result in guilty pleas, and for those that proceed to trial, the majority are ultimately convicted. Further, the penalties are indeed severe.

It's our position that the legislation addresses the concerns raised. It is tough legislation, and therefore we see no pressing need for changes to a regime that presently facilitates the detection of impaired driving now and favours the prosecution with a wide variety of evidentiary shortcuts.

I think it's always tempting to see the criminal justice system as a means of effecting broad social change, but it's my respectful position that the criminal law is a blunt instrument, and an ineffective one at that. We have to recognize that impaired driving is a behavioural problem that comprises societal and personal aspects. So it's our position that we would be better served if energy and resources were devoted here to the prevention of impaired driving through education, through the raising of public awareness, and ultimately the isolation of the root causes of illicit drug use and excessive alcohol consumption.

Secondly, by way of a cautionary note, we are most concerned that you not legislate or consider changes to the present legislation based upon statistics generated by professional interest groups, groups with their own clearly defined agenda. I and we are most concerned that in their attempt to have you pass more severe legislation, some interest groups are adducing statistics that are simply inaccurate and very misleading. We question where these groups obtain some of this information. Is the information corroborated? Does it survive scrutiny? So I simply ask that you be careful and not accept everything that's put forward by all witnesses in attendance before you.

I also ask this committee to be wary of comparisons with the legislation of other countries, because comparisons of legislation are, of course, in our opinion, valueless unless one has both a thorough knowledge and full understanding of both legal systems.

So I leave that as a cautionary note with you, and with those general remarks will let Mr. Prithipaul address some of the specifics. Thank you.

Mr. Ravi Prithipaul (lawyer, Canadian Council of Criminal Defence Lawyers): Mr. O'Neill and I prepared some written materials, which we have circulated to some members of this organization.

I'd like to say at the outset that I'd like to make my comments in French, if I may, to those members of this body who do speak French.

[Translation]

The Canadian Council of Criminal Defence Lawyers has francophone and bilingual members. It is not because of a lack of sensitivity that we drafted our briefs in English, but rather because of time constraints. Mr. O'Neill and I only finished writing our brief yesterday afternoon. We apologize for presenting it here without being able to give you the French version. However, we are quite willing to have the documents we are presenting translated at our expense.

• 0945

Having said that, I would invite the members who want to ask me questions in French to do so. But if you will allow me, I would like to deliver my oral presentation in English.

[English]

Mr. O'Neill has spoken about three broad phases of the criminal justice system: the detection, the prosecution, and the penalty stage. Our written materials also address each of those specific topics. It is the consensus of our members that the present legislation, which has existed in roughly the same form in which it exists now for approximately 15 to 20 years, provides a workable framework for the apprehension and detection of impaired drivers, drivers whose ability to drive is impaired both by alcohol and/or drugs.

We have to bear in mind that the criminal law operates within the confines of a constitutional system. And we criminal lawyers are fond of viewing the charter as sitting at the apex of the criminal justice system. The measures that exist now have come to operate within the confines of the charter reasonably. The competing interests are those of fairness to the accused, accuracy in blood and breath testing, and also the normal exigencies and requirements of police investigations. At times those interests come into conflict, but for the most part they have come to be balanced within the present legislative framework. To reiterate something Mr. O'Neill said, we therefore question the need for changes, particularly far-reaching changes, to a system that works fairly well for the time being. It balances those competing interests reasonably well.

I don't wish to sound condescending, and I hope I'm not taking too little for granted, but it is useful perhaps to observe at the outset that there exists a difference between two sorts of offences right now in the Criminal Code. The offence of impaired driving is defined by paragraph 253(a); allusion is made to this in our written materials. Paragraph 253(b) is the more technical of the two offences, which defines the offence of operating a motor vehicle while over the legal limit.

Contrary to what we suspect this committee has been hearing, the impaired driving offence is not a technical offence. It is one that is proven usually on the basis of observations of individuals who have been operating their motor vehicle, and evidently if these people show signs of lack of sobriety the chances of a conviction are fairly strong. It is really that simple. The more technical of the two offences, the over-.08 offence, is one that lends itself to perhaps greater scrutiny or challenge in the courts, but precisely because it is an offence that requires for its proof some technical and scientific accuracy.

It should be understandable that the criminal justice system is manned by humans. Humans make mistakes, and sometimes those mistakes result in inaccurate or faulty testing procedures. Those are the kinds of issues that will be litigated on the over-.08 offence, but they need not affect the crown's chances of success on an impaired driving charge.

Our submission is that the offence that is wrong per se, the offence of impaired driving, is not one that lends itself by and large to technical sorts of defences. There is no need, in our respectful submission, for changes to the definitions of the impaired driving over .08 offences as they presently read. We are not opposed in principle to more accurate testing devices. On the contrary, we would welcome them. It is not our job, as Mr. O'Neill hinted at, to frivolously complain about inaccurate results. On the contrary, we would be most pleased, even as defence counsel, to tell our clients that testing procedures are relatively accurate. The technology is accurate and therefore the chances of a successful challenge are relatively low.

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Of course, technology is an evolving process. We are concerned that when new technologies are implemented we be informed about how these mechanisms work. We recall that several years ago screening devices—they were known as the ALERT 3JAs—were being routinely modified by the manufacturer after their approval by Parliament, and these modifications were resulting in inaccurate tests. The breath test committee was aware of these changes, but did not disclose them to the public and to the defence bar until well after the changes and modifications had been made. That is a cautionary note.

We welcome the advent of new technology, particularly if it facilitates the detection and testing procedures, but there should be a certain level of transparency and openness.

We have read some of the submissions that have been made to this committee concerning screening tests known as AST tests in some of the technical language, alcohol screening tests. We would only point out that changes to the present legislation are not needed because the legislation as it presently reads already provides the police with a certain amount of flexibility and the courts have already interpreted these provisions and told the police and law enforcement agencies how they can be used.

Our concern is fairness to the accused. We are concerned that when these devices are used they're used a manner that ensures accurate testing, number one, and that the tests are carried out in a manner that respects individuals' civil rights.

Mr. O'Neill also mentioned that the present legislative framework provides the crown with certain evidentiary shortcuts and procedural ones. Again, I just wish to highlight that point.

The legislation as it presently reads gives the crown an enormous number of evidentiary and procedural—to use a phrase of defence counsel—advantages. I practise in Alberta. I do not have a sense from having spoken to my colleagues in the crown that they see any great difficulty in proving these offences. On the contrary, prosecutions are relatively routine and they are often successful.

I have read some of the submissions made to this committee concerning penalties. Our main concern at this stage is that people are already being punished to a very harsh degree. We oppose in particular the increased use of mandatory minimum penalties, particularly where they involve people's driving privileges. Also, we certainly reject the increased use of jail as any means whatsoever of achieving the objectives of reducing drinking and driving.

We must bear in mind, and this is a point we've made in our written materials, that impaired driving by its very nature is unique among the criminal offences mentioned in the Criminal Code in the sense that it is committed at a time when people's ability to make informed, rational judgments is reduced. Of course sober we would never countenance drinking and driving. Unfortunately, drinking, which is certainly socially acceptable to a certain degree, also has the effect of impairing people's judgment, and it is at that time that people are weakest and make poor choices.

I don't say that this fact should necessarily attenuate the harshness of the criminal law in this area, but I would respectfully suggest that this committee be sensitive to the needs of people to drive to carry on their businesses, as a means of gaining their livelihoods.

In our province of Alberta we see a great many clients who are charged in rural locations who do not have easy access to public transportation and whose jobs and livelihoods absolutely depend on their ability to drive, to be mobile. This is particularly true perhaps in our resource-based economy, but I suspect that it's true in other parts of the country as well. Mandatory minimums deprive judges of the ability to soften the harshness of the law in this area.

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Our province has a very successful ignition interlock program. This is a system that allows people to drive while their suspensions for alcohol-related offences are in effect. But it must not be available only to those who can afford it. It's an expensive system. If this committee is contemplating changes, it should also bear in mind that people view their ability to drive as a liberty and more than just a privilege.

Thank you.

The Chair: Thank you, Mr. Prithipaul.

Mr. Neville, you have roughly ten minutes, sir.

Mr. Mike J. Neville (Regional Director and Co-Chair, Legislation Committee, Criminal Lawyers Association of Ontario): Thank you, Mr. Chair.

I'd like to start with a few comments about alcohol in our society. Its use, as I'm sure all here realize, is as old as the human race. It is difficult to think of a major event, be it social, political, athletic, charitable, or cultural, where alcohol is not served. Our electronic and print media are full of commercials promoting the use or consumption of alcohol.

The present Government of Ontario, when it campaigned for office in 1995, had as one of its platforms the privatization of certain government agencies. One that was prominently featured was the Liquor Control Board, known as the LCBO. It has not been privatized, and undoubtedly the reason is that in its past fiscal year it returned the Government of Ontario some $760 million in revenue.

The fact of the matter is that at least subliminally in this area, there is an element of hypocrisy in on the one hand profiting greatly from an economic standpoint—both government and private industry—from the use and sale of alcohol, and on the other hand cracking down unduly and perhaps unfairly.

In the area of penalties and deterrents, perhaps one of the difficulties from a practical standpoint is a lack of uniformity across the provinces. Let me use Ontario and its present situation as an example. Introduced into Ontario within the past couple of years—and this does exist in at least three other provinces—are what are called administrative driver's licence suspensions.

This means upon charge of any of the driving-related offences, from the most serious of offences such as impaired causing death, down to the least offensive, namely, failing to comply with a roadside demand, the alleged accused is automatically suspended for 90 days, contrary, of course, to the presumption of innocence. During that 90 days, the only grounds of appeal to a review board are wrongful identification, which is hardly likely to arise, and medical inability to provide the sample.

In fact, I am personally aware of instances where the person was arrested, charged, and on first appearance in court, the file having been reviewed by a crown attorney, it was determined there was no likelihood of conviction and the charge was withdrawn. The 90-day suspension still had to be served. Indeed, the case presently in the court of appeal, Horsefield, challenging the constitutionality of that program, is a situation where the accused person's charge was withdrawn prior to any trial and the suspension had to be served.

More recently, as of the fall of 1998 in Ontario, the consequences—and the real consequences on a practical matter are those involving the ability to drive—were increased dramatically. On first conviction, the suspension is one year. On second conviction it is three years. On third conviction it is indefinite, potentially for life, and the earliest restoration period is 10 years. It is difficult to imagine anything more severe than that.

It is, or will be, mandatory, even on a first conviction, that prior to restoration of licence, at the citizen's cost—approximately $475—he or she must take an educational program of eight hours' duration. Failure to comply with that means no return of licence, even after the year. Upon a second or subsequent conviction, the remedial measure is sixteen hours—eight hours of education, eight hours of substance abuse counselling—failing which there is no return of license.

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What is important to understand is that this regime would apply even if the finding of guilt were for nothing more than failing to comply with a roadside demand. What the committee should perhaps understand is that the triggering mechanism for that type of investigation and conviction is merely reasonable suspicion of the presence of alcohol. By definition, the police officer's power in that regard does not involve even a belief of impairment.

In fact, many of these types of offences are laid against people whose motor vehicles have not moved an inch. They are intercepted, so to speak, as they are entering their vehicle in a public place. The police officer, exercising his powers of random intervention, demands a sample, and perhaps through some explanation that is not acceptable to a judge, the person fails. All of these penalties apply, even though the vehicle has not even been started.

Constitutionally, the normal standard for police intervention with a citizen is reasonable probable grounds in the belief of an offence. There is also power to intervene by the police for what is called “articulable cause”, which involves a subjective belief based on some reasonable objective grounds. In this field of law enforcement there need be no cause. The constitution has been upheld as allowing the police to intervene with a citizen for no cause, simply a random stop pursuant to the provisions of the Highway Traffic Act. It is the lowest non-standardized intervention with a citizen that our law has recognized.

In fact, we would suggest that making it an offence to fail or refuse to comply with an ALERT demand where the only evidence is that of an odour should no longer be an offence, but should be grounds only for a proper full breathalyser demand.

The financial consequences of these convictions, even convictions of refusal or failure to provide alert where there is no evidence of impairment whatever, are an increase of insurance rates of approximately 250% for at least three years. At least in Ontario, there is a 100% increase because you go to what's called “the facility”, and there's a 50% surcharge on top of that. So if the average male or female driver paying $1,000 a year to insure incurs one of these convictions, something as minor, so to speak, as an alert refusal, his or her insurance would then be $2,500 a year for at least three years starting a year after the serving of any suspension.

The social costs are significant, particularly where there are wrongful convictions spurred on by an overzealous desire to enforce the law. People who lose their livelihood often have dependants, be it a partner, children, or both, or if they own or run a business, they have employees dependent upon them. And all of these consequences flow from conduct that may not even involve an iota of impairment.

As my colleagues have said, the criminal law, in most areas, is a very poor instrument for social change. When I grew up—and I won't say when—the notion of drinking to excess and driving was almost considered to be a joke. People told anecdotal stories of making it home in spite of their condition. That, in my experience with children who are now largely grown, has changed. My children throughout their educational period got lectures, courses, and the like on saying no to drugs, drinking and driving, and the like. In my view, respectfully, the whole social attitude toward drinking and driving is dramatically different from what it was as recently as 20 years ago.

I think it's also important to remember this is criminal legislation and it is governed ultimately by the charter, which is there to protect all of us, no matter how unfavourable we may appear as a citizen. This type of law enforcement area enjoys or has attached to it significant potential for discriminatory conduct against minorities because of the ability of the police to intervene without standards with whomever they wish.

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Finally, because it is criminal legislation, presumption of innocence and proof beyond a reasonable doubt through fair constitutional means should still be the norm. Zero tolerance policies and a lack of discretion are a recipe for more than occasional injustices. It would be my respectful submission to the committee, on behalf of our association, that if there is to be any change here, one should go about it very cautiously. In our submission, social change is coming. It is not going to happen overnight, but we shouldn't sacrifice basic principles on the altar of expediency, particularly when alcohol is no small part of our existing social norms.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Neville.

Mr. Berzins, you have approximately ten minutes, sir.

[Translation]

Mr. Andrejs Berzins (individual presentation): Good morning, members of the committee.

[English]

I'm very pleased to have this opportunity to address you. Just to introduce myself to you, my name is Andrejs Berzins. I'm the local crown attorney. I'm the chief prosecutor for the Ottawa area.

First of all, I want to make it clear that I represent only myself. I do not represent the views of the Province of Ontario or the Ministry of the Attorney General. I asked to come here to be able to say a few words and give my own personal views. The reason I made that request is that I feel very strongly about this issue and what is happening in the criminal courts today in Ottawa and what I see happening in some other jurisdictions around Ontario.

I don't wish to make any comments on the area of penalties or sentencing. I know the committee is largely focused on that area, but I'd like to go on to another area. That area is how impaired driving cases are dealt with in the criminal courts on a daily basis. I want to qualify this by saying that I can only speak from first-hand information. I understand that the practice varies across Canada. There are different practices in some jurisdictions, so things are not consistent. However, I can only speak about what happens in my city and some other large centres in Ontario.

The problem is that the law of impaired driving has become incredibly complex, and something must be done to simplify it. I was thinking that I would come to the committee and bring a couple of digests of drunk driving or breathalyser cases, but I felt that my arm couldn't bear the stress from walking over from the court house if I did that. I wanted to do it, though, just to demonstrate to you how ridiculously complex an area of law that was meant to be common sense and simple has become.

Trials are not a search for the truth. Rather, they are a test of whether or not the police have complied with the complex letter of the law. The focus of the trial is not whether the accused was driving while impaired—not at all—but whether or not the clear evidence of impairment from the breathalyser can in some way be excluded and suppressed. That is what the trials are concentrating on.

We have a proliferation of charter cases and a proliferation of issues that are brought up every week. We refer to a phenomenon called the designer defence of the week, and I'll tell you what happens in these situations. A defence lawyer successfully gets a certain ruling in Toronto. It's put on the Internet or on a database. That defence is floated across the province and stands up maybe until the court of appeal deals with it. We're therefore trying to keep up to date with these designer defences.

In my personal view, the charter has become trivialized. It was intended to be an important document in our Constitution. In my submission, it is applied in a trivial way by the courts when dealing with drunk driving cases. The standards imposed upon the police by the strict rules—the necessity of crossing every t and dotting every i—are unrealistic. The courts do not seem to realize that the police officers are responding in emergencies; that they sometimes have to deal with many competing interests, including the needs of victims; and that it is all too easy for a clever defence lawyer to scrutinize that officer's notes and pick holes through them six months or a year later.

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As a result of the court experience, police officers are becoming frustrated. Police officers will tell us that they sometimes don't bother enforcing the impaired driving law. Rather, they put the drivers in the back of the cruiser and bring them home because they know what will result when they have to go to court. And we were also told recently that as a result of the introduction of new forms that have to be completed, an officer can spend as much as four hours processing the paperwork that has to be done.

We have a defence that is known as “evidence to the contrary”. It is a very popular defence, and under it the accused essentially testifies that he or she only had two or three beers to drink—and this is despite the breathalyser reading. He or she brings along a friend who confirms that. A toxicologist then testifies and says that the reading would be below .08 if this were true. This is a commonly used defence, but there's no evidence at all that the equipment was in any way defective or wasn't operating properly. The fact is that the accused had a relatively low reading and may not have exhibited any or substantial physical signs of impairment. Based on the accused's word, the breathalyser reading is in fact contradicted and the judge has a reasonable doubt.

I'm therefore making a recommendation that the only type of evidence to the contrary that could rebut a presumption would be evidence directly indicating that the apparatus was malfunctioning or not properly administered.

Why is this happening? Why have impaired driving trials in some jurisdictions become such a chess game played out by lawyers? We have many good judges, and I'm not criticizing them. Many very competent and good judges are making these decisions, but they feel they are bound by the case law that is coming from the courts and from other decisions. They obviously wish to respect a precedent and apply the law in the state it is in.

Also, impaired driving has become an incredible cash cow for defence lawyers. That is simply the truth. The modern-day Perry Mason is not defending murder cases because there isn't much money in them; they're all legal aid. The modern-day Perry Mason is representing drunk drivers. As a result, we have very competent defence lawyers who are able to make extremely effective arguments, and they are quite successful on impaired driving in a criminal court. That's reality.

In my submission, the second reason behind this is that many of the people who come before the criminal courts charged with impaired driving are not your usual criminals. They are people who could be your next-door neighbours, people from all walks of life. The judges see these individuals who are about to lose their licences if they are convicted, who have paid a great deal of money for their lawyers, and who are not your usual criminals. It is my submission or my belief that considerable sympathy is extended to a person who has gone to the trouble of expending a great deal of money to employ a defence lawyer, and who faces the consequences of the loss of a licence, along with insurance consequences as well.

Let me just give you one example of the type of ruling I'm referring to. It happened not too long ago in Ottawa.

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Section 258 of the code provides that in order to be admissible, each breath sample must be received from the accused directly into an approved instrument. Two samples are taken. You had one case in Ottawa where the breathalyser technician testified and with regard to the first sample said yes, indeed, I was operating the equipment properly, and the accused provided a sample directly into the breathalyser. With regard to the second reading, the officer forgot to use the word “directly”. He omitted that from his evidence. At the end of the crown's case the defence objected to the admissibility of the breathalyser because in fact the word “directly”' had not been used. We appealed that case, and it was upheld at the appeal stages because of forgetting to use one word.

Another case I reviewed the transcript of just very recently turned on a question of reasonable grounds to believe. If an officer who makes a stop has only reasonable suspicion that the person has alcohol in their body, then they can administer only the roadside device, the Alcotest device. In order to arrest the individual and take them to the police station for the breathalyser test, they need to have reasonable grounds to believe. In this case the police cruiser was following a car at night that swerved from one lane to the other and failed to signal when switching lanes. Upon being arrested the driver jumped out of the car and ran off into a field. The officer pursued the driver, eventually caught him, brought him back, and detected an odour of alcohol on the driver's breath. The driver said that they had had a couple of beers. The driver slipped and fell on the grass twice and appeared to be unbalanced. The charge was dismissed. The breathalyser reading, which was very high, was ruled inadmissible because the police officer had only reasonable suspicion on that basis and should have administered the roadside device rather than take the person in for a breathalyser reading.

These types of decisions are coming from our courts because of, in my view, an unrealistic application of the law.

What I'm suggesting is set out in my five recommendations. I haven't worked on them to a great extent. I also apologize to our French-speaking colleagues because I didn't have a chance this morning to translate them. But I have them available here.

The first recommendation is that the Department of Justice should be asked to conduct a thorough review of the provisions in order to simplify the law and procedure in this area. The goal should be to make prosecutions more effective and more likely to bring out the truth in a fair but expeditious manner. It's important, of course, that any amendments comply with the charter of rights. Also—and this comment applies to the work of the committee in general—what you have to consider is the practical consequences of any amendments you're suggesting. For example, if you are going to be proposing penalty amendments, you have to look at what impact that is going to have on the prosecution system and the criminal courts.

Right now in Ottawa approximately one-third of the criminal court time is taken up with impaired driving cases. Does it make sense to you, considering all of our other criminal matters, such as child abuse, domestic violence, murders, and so on, that a full one-third of provincial court criminal trial time is being taken up with impaired driving?

I've already made reference to number two, my comment with regard to evidence to the contrary.

My recommendation number three is that the police at the scene should have a portable apparatus, and the results of that portable apparatus should be admissible in court. In other words, the intoxilyser or breathalyser that is now provided at the station should be available in police cruisers in a portable form. Police officers should have the right to make the demand for that breath sample based on reasonable suspicion, and that evidence should be admissible in court.

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You have to understand that for that amendment, it takes some appreciation of the standards here. I would recommend that the legal limit be reduced from 80 milligrams to 50 milligrams of alcohol in 100 millilitres of blood. For anyone who wants to try it, to experiment, you will see that you have to drink an awful lot to get over 80, and I think that standard is too high.

Lastly, the police have advised me that they have difficulty obtaining any tests where they suspect a person may be on drugs rather than on alcohol. There's a gap that exists right now that needs to be filled. When a police officer stops a motorist and believes the individual may be under the influence of drugs rather than alcohol, they should have the right to make a similar demand for the person's blood as they have the right to do now for their breath if it's alcohol.

Thank you very much. I'd be pleased to answer any questions.

The Chair: Thank you, Mr. Berzins.

We'll now have seven-minute rounds, starting with Mr. Harris.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I fully understand the constraints placed on all participants. Indeed, I thank them for the effort involved in presenting us with the fruit of their labour. However, around this table this morning, we have documents that are exclusively in English, which is not unusual. I do understand the constraints, and my comments are certainly not addressed to the witnesses who are presenting these documents. Rather, I would like to discuss the operation of our committee. I would really wish that we consider the possibility of having these papers in French and English so that we can all have an equal opportunity, regardless of party, to have access to the same information so that we can all think about it on an equal footing.

I know that this is a complicated problem, but I submit it to you because it's happened on many occasions now that we don't have any French texts, quite often because of time constraints. Clearly, it is not the fault of the witnesses, who have very little time to prepare them. I would really like us to examine this problem and find a solution.

[English]

The Chair: Thank you. We have a steering committee meeting on Tuesday, which will then report back to the full committee. This has come up this week again. We'll discuss it and perhaps make a ruling. I don't know if you want to go so far as to say if it's not in both official languages, we won't hear from the witness. I don't know if you want to go to that extreme.

Mr. Jacques Saada: Please, don't get me wrong. I'm going to say it in English, Mr. Chairman, to make sure it's clear. My aim is not to be an extremist in any way, shape, or form. My point is that I think it's only fair that all the people around the table, whether they speak only French or only English, have access to the same material in order to be able to participate in the same fashion.

The Chair: We appreciate your point. I don't think we want to have a debate today. We will deal with it on Tuesday, and we'll prepare a position paper on that. Thank you.

Mr. Harris.

Mr. Dick Harris (Prince George—Bulkley Valley, Ref.): Thank you, Mr. Chairman.

I wish to thank the witnesses for their presentations.

Mr. O'Neill, I understand where you're coming from and the group you represent. I have to question your comment that we on the committee have to understand that a lot of special interest groups will come here and provide us with perhaps inaccurate and misleading information. If that's your opinion, then, certainly, you must consider your organization a special interest group, and if you think other special interest groups would give us inaccurate and misleading information, why would we not suspect the same from your organization?

Mr. Edmond O'Neill: I would just say that, with respect, Mr. Harris, this was just a cautionary note. We always have to be careful of what is put before us. We have to look at all the evidence. Please don't take my word for it. The research is out there. Statistics are generated from objective bodies. Take a look at the statistics. Take a look at my comments as compared with Mr. Berzins'. Convictions are very, very high. People aren't getting away with these things. It's not out of control. Don't take my word that the conviction rates are high.

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Mr. Dick Harris: You made the comment earlier that impaired charges are in fact down, and the statistics and the numbers certainly bear that out. However, the statistics provided by a number of reputable interest groups or organizations, witnesses, do declare that for every charge that's proceeded with, there have been in fact as many as 2,000 offences that are not charged.

So while the impaired charges may be down in numbers, do you think that could be a combination of, on the one hand, an increased awareness of impaired driving, plus over the last 20 years a tougher stand against impaired driving, plus the fact that our police officers are becoming just so darned frustrated with the way the courts process impaired driving charges that they are being extremely flexible and lenient when they stop a suspected impaired driver, that out of frustration many of them are simply not charged, because they know when they get to court they're going to be facing the very sharp criminal lawyers who specialize, as Mr. Berzins pointed out, very successfully and very profitably in getting people off who have been charged with impaired driving? Is it the frustration factor that may contribute to the numbers being down?

Mr. Edmond O'Neill: With respect, it's my experience that police officers charge when there are grounds. Police officers aren't letting people get away with it because they're frustrated; that's a fiction.

I could tell you that I have a reasonably good reputation in Edmonton, where I practise, and I lose a lot of impaired cases. And I question, because most impaired cases—

Mr. Dick Harris: I'm happy to hear that. We heard from the police association the other day, and they expressed the sheer frustration with the court system they face every day as front-line officers.

The witness told us that in his opinion, and given evidence by his colleagues, the frustration level is so high that in so many cases they simply have to let people go, because they know because of courtroom clogging at that particular time, because of defence lawyers who have become very good at... They let far more go than they ever would wish to, because of the frustration with the system.

Mr. Edmond O'Neill: That's simply not the case. My opinion conflicts directly with that evidence, sir, with the greatest respect.

Mr. Dick Harris: I'm also a little troubled by the attitude you have toward the crime of impaired driving. As a matter of fact, nowhere in your submission do you refer to it as a crime but in many cases refer to it as a behavioural problem, a sociological problem that we have.

In fact, impaired driving is the largest cause of criminal death in this country. I think it's two or three times higher than murder. I'm surprised that you seem to be of the opinion, or at least you indicate, that it's simply another social ill and not really the crime that it is that incidentally kills 1,400 or 1,500 people a year, injures tens of thousands a year, costs our health care system in Ontario—I think this is the latest number—about $600 million a year, not counting the insurance costs, the compensation costs, and certainly the legal costs, the court costs. Is it not a serious crime in this country?

Mr. Edmond O'Neill: I'm sorry if I miscommunicated my views, Mr. Harris. It is a crime.

My point with respect to the sociological problem was that impaired driving isn't; drinking, alcohol abuse, is the sociological problem, which results in impaired driving, which is a crime.

I'm sorry if there's any misunderstanding, but there's no question about it, and I have no difficulty with the legislation right now. It allows for the enforcement of our laws, and as I say, it results in conviction of the majority of those charged. There's no question about that.

• 1030

Mr. Dick Harris: It appears to me that the criminal justice system, as it deals with impaired driving, is rocked with problems. It has incredible loopholes, as Mr. Berzins pointed out. What we want to do here, out of this whole exercise, is respond to an overwhelming demand by the Canadian people that the fact that 1,500 people a year are killed on our highways because of impaired driving and tens of thousands are injured is simply not acceptable. We have to find a way to begin to make a dent in that. If stronger deterrence by penalties is the way, then we have to look at that. We have to fix the justice system and take the loopholes out of the law. People who are proven to be legally impaired by the approved instruments must be prevented from getting off because of some technicality.

Mr. Berzins, I would like to give you a chance to speak again to the problems we have in the justice system.

Mr. Andrejs Berzins: I just want to again reinforce the point I made that as much as one-third of all of our criminal court time in my jurisdiction is taken up with impaired driving-related matters. There's an urgent need, in my submission, to really simplify the law in this area.

Second, there are positive things to everything. One of the positive trends I have seen during the course of my career as a prosecutor is fewer young people charged with impaired driving. I believe the message is slowly getting through to youth. The average impaired drivers coming before the courts are people more in our age group.

Mr. Dick Harris: Okay.

The Chair: Mr. Brien?

[Translation]

Mr. Pierre Brien (Témiscamingue, BQ): Mr. Berzins was telling us that one third of the cases he handles involve drinking and driving and that many such cases are lost. Have you calculated the number of cases you have won and lost before the courts?

Mr. Andrejs Berzins: With your permission, I will respond in English because I'm more fluent in that language.

[English]

On the question of our success rates for convictions, we estimate that approximately 50% of the people who are charged with impaired driving in our area plead guilty. Out of the other 50% that go to court for trials, we have approximately a 50% conviction rate and a 50% acquittal rate. I had heard from another source that in Ontario, in contested impaireds, the conviction rate was about 40%. It depends entirely upon the jurisdiction. It depends entirely upon the defence lawyer, to some extent upon the judge, and perhaps to a lesser extent upon the evidence. Probably the main factor determining your chance of a conviction is the skill of the defence lawyer.

[Translation]

Mr. Pierre Brien: You alluded to the fact that judges can feel sympathetic towards the accused. Would it therefore be appropriate to also educate the judges, who may not feel that this type of offence is as serious as the legislator or the law considers it? Is there still a gap there? To my knowledge, judges are not necessarily young. You say that the legislation has had major consequences for young drivers. Is there a problem with education for judges?

[English]

Mr. Andrejs Berzins: On the problem of education of judges, again I want to make it clear that we have very good judges and are getting progressively more and more well-qualified judges.

• 1035

I think what happens, and again this is just my personal observation, is you become desensitized to a certain degree. If you see impaired driving cases day in and day out, and the people are usually from all walks of life, there's a tendency to not see the actual charge as being that serious if an accident or a fatality wasn't involved.

It becomes very troublesome, and I must say shocking, in those cases where a person has been killed, the parents are sitting in court watching the trial, and all of the cases that were dealt with by that judge in simple impaired driving cases—not fatalities—are thrown back at the judge who is being asked to apply the law in the same manner—which the judge has to do—as he did in the non-fatality cases.

One of the most disturbing experiences in a courtroom is to sit and watch the relatives of a victim killed by impaired driving where the discussion concentrates on the violation of the rights of the individual who was arrested at the scene, brought to the station and gave a breath sample that was many times over the legal limit. The focus is on whether that person's rights were somehow violated—the police didn't have sufficient grounds and should have given the roadside test instead.

I know those are not words my friends here like to hear, but it is reality.

[Translation]

Mr. Pierre Brien: Mr. Neville and Mr. O'Neill, since the beginning of our hearings, we've heard that many highway accidents causing death and injury are attributable to individuals who are driving while impaired and in many cases these are repeat offenders, people who have been charged with impaired driving in the past.

It seems to me that despite the severity of the penalties and all the prevention efforts that have been deployed, a major problem persists among a certain clientele. What do you suggest we do about repeat offenders? If you were legislators like us, what would you do regarding this problem that arises among a certain group of people?

[English]

Mr. Mike Neville: Perhaps, to answer your question with a question, someone can explain to me, if we accept that these hard-core drinkers are, generally speaking, alcoholics and that's considered and accepted as a disease, and to some degree a treatable disease, why the Province of Ontario is one of the only provinces that has refused to implement the curative discharge provisions of the Criminal Code, and made it very bluntly clear they did so because they thought they were not sufficiently deterrent and sent the wrong message. That was refused and turned down and hasn't been implemented in the ten or fifteen years it's been in the Criminal Code.

May I say—although not perhaps directly in response to your question—what you have heard here from Mr. Berzins, with the greatest of respect, is nothing but a subtle form of contempt for the bench. It is outrageous the suggestion that judges... Out of one side of his mouth he says these are good judges. Are these the same judges that are allowing these unduly technical complex defences? You can't have it both ways, with great respect. The principles of law and constitutional law that these judges are applying in drinking and driving cases are no different from those implied in murder and every other Criminal Code offence—no different at all.

On his proposal, for example, that evidence to the contrary should not be based on the accused's words, since when in our law did the accused words not count in the scales of justice? Are we to leave the ultimate guilt or innocence to the say-so of a police officer who says “I ran the machine correctly”? Is someone seriously suggesting it's within the capability of an accused to prove that a machine in the possession of the police, when his trial is six to eight months down the road, was operating perfectly accurately six months before? Are we going to create an area of law where the word of the accused doesn't count?

• 1040

I can tell you, if we want to be anecdotal, I've had a number of these kinds of cases where I think if every member of this body heard the defence witnesses testify—good, credible, honest people—as to what the accused drank in circumstances where there was objective verification, and yet the breathalyser readings were completely out of step with the accused's defence, something is wrong, and that's called reasonable doubt.

If we're going to throw that out, why don't we just bluntly say we want absolute liability and forget that it's criminal law? With great respect, to say there are all these technical charter violations, since when did the police have the lack of ability to form reasonable probable grounds?

The accused doesn't walk around with a notebook; the policeman does. It's interesting how the police officer at trial six months later, having made detailed notes on what he observed right down to what clothing the accused wore but not about any signs of impairment, has all kinds of signs of impairment to testify to that can't be found anywhere. Is that not legitimate cross-examination? I think so, and it's done in every kind of case.

What we're talking about here is a desire to throw out the criminal law entirely. If that's the decision this committee wants to recommend, I can tell you where that will end up. It will end up just down the road here with another constitutional challenge, and it won't stand up.

The Chair: Thank you, Mr. Neville.

Mr. Mancini.

Mr. Reg Alcock (Winnipeg South, Lib.): It will not withstand it.

Mr. Peter Mancini (Sydney—Victoria, NDP): That's my fear.

I want to pick up on those last points raised by Mr. Neville, and I'm going to direct my first questions to Mr. Berzins. Surely in your statement—I'm going to give you a chance to clarify this—you said initially this is a simple criminal charge of impaired driving and the charter has complicated it, made all of these defences, and made defence lawyers rich.

Surely you would not have this committee believe the Charter of Rights and Freedoms applies only to certain sections of the Criminal Code and not to every section of the Criminal Code equally. That's not what you're saying to us, is it?

Mr. Andrejs Berzins: Not at all.

Mr. Peter Mancini: So the defences and the challenges under the charter should apply equally to people who are charged with impaired driving, as they do whether they're charged with murder, sexual assault, treason, or under whatever section of the code. Those necessary protections should apply to those accused as well. Am I correct?

Mr. Andrejs Berzins: Certainly.

Mr. Peter Mancini: My second point is also one raised by Mr. Neville that in your submission, evidence to the contrary ought to be displaced. I'm going to give you a chance to clarify this for me, because as I read this it says we don't even need a judge; what we need is a technician who says “Everything was perfect; we don't need to hear from the accused; the machine says you're guilty.” So the only role for a judge would be in the sentencing of the individual. We have no trier of fact. We have nobody to sit down to determine what is the truth and what isn't, and what actually happened. You're not suggesting that either, are you?

Mr. Andrejs Berzins: No. But let me clarify this. Certainly there has to be a recognition of the accuracy of the apparatus. Experts testify that the accuracy rate, if the apparatus is properly operated, is very high. What I'm just explaining to you, Mr. Mancini, is that a common defence is for an accused person to stand up and say “Regardless of the reading, I only had three beers to drink, and here's my buddy”.

How do you cross-examine on that? A seasoned drinker does not necessarily show any great signs, as well. Therefore I'm suggesting the presumption can be displaced, but there has to be some evidence to suggest to the court that the equipment was not being operated properly. There are plenty of grounds for cross-examination around the issue as to how the equipment was operated.

• 1045

Mr. Peter Mancini: What you're saying is there should be a presumption of greater weight being given to the testimony of the police officer and the technician than to the accused and the defence witnesses.

Mr. Andrejs Berzins: Certainly.

Mr. Peter Mancini: I have a question for perhaps Mr. O'Neill and Mr. Prithipaul, and it has to do with the curative treatment section.

My experience in the court is where that section will be or could be invoked, it usually isn't until after the third or fourth conviction. It sometimes seems to me—and I would be interested in hearing your thoughts on this—that the first conviction is the time for curative treatment. Surely in this day and age, as has been stated with all of the information, we know not to drink and drive. So when you commit that crime, knowing your licence will be suspended, knowing the way society will view it, knowing you could kill somebody, surely that's the time for curative treatment.

Then if there are repeat offences that's when you come in with a heavier hand and say curative treatment didn't work, now we've got to put... As in other criminal cases, you give the lesser penalty the first time, but as the offence increases you say at some point, this is it, you've crossed the line.

I submit to you we do it backwards. We say we're going to fine you, we're going to put you in jail for two weeks. Then later that in and of itself may form some evidence on the third conviction that you're in need of curative treatment. Should we do it the other way?

Mr. Ravi Prithipaul: If I may respond to that, yesterday morning I was in Edmonton Provincial Court representing a client—a lady, single mother of three—on an impaired driving charge. She had provided very high readings. She was being sentenced as a first offender. The judge who sentenced her was sufficiently concerned about her readings and the lifestyle she was perhaps engaged in that he placed her on probation, which is an unusual sentencing option for a judge on a first offence. This lady was already on the way to rehabilitation. She was attending Alcoholics Anonymous twice per week. Nevertheless, the judge saw fit to couple the fine with a period of probation. I should also add that she was suspended, automatically in our province, for one year from driving and given a three-month driving prohibition.

The answer to your question is sometimes, yes, perhaps we do do it backwards. However, the difficulty we face as defence lawyers is that on curative discharge applications there must be proof that, practically speaking, even if the code doesn't require it, the person is in need of curative treatment. And it's frequently difficult to establish that criterion in the absence of, unfortunately, a track record of committing offences.

Now, this particular case was exceptional. It's our experience—and this is only anecdotal, I cannot back it up with any statistics—that for most people drinking and driving is something they will engage in once and then not reoffend.

I wish to make one comment in response to something Mr. Harris said, that in our written submissions nowhere do we consider drinking and driving a crime. At paragraph 7 of the first page of our written submissions we speak very clearly about our recognition of the moral wrongness, of the danger that is inherent in impaired driving.

With the greatest of respect, I categorically resist the suggestion that we are here trivializing, downplaying the severity of the offence. In many ways, a curative discharge is precisely the way to prevent people from reoffending in the long term. Ultimately, though, people have to be self-motivated to seek help. And there is a difference between those people who may drink and drive and never reoffend and for whom curative treatment is redundant, and the person who is liable to reoffend. A curative discharge will really only address the latter class of offender.

Mr. Andrejs Berzins: Could I just make one point?

The Chair: Very quickly, Mr. Berzins, please.

Mr. Andrejs Berzins: Yes, just one point on a question of the curative treatment and why it isn't implemented.

• 1050

The problem is that the provision for curative treatment in the Criminal Code as a penalty is put in conjunction with a conditional discharge. So what you would have is a person who is found guilty of impaired driving, but the only way you could sentence them to curative treatment would be if you gave them a conditional discharge. The courts are of the view, and legitimately so, that a conditional discharge is not appropriate for impaired driving because it doesn't result in a conviction. So if the curative treatment provisions were such that it could be ordered upon conviction of an individual, as part of the sentence, then I think we would see more of it.

The only problem, I should warn, is that I'm not sure the province will come up with the facilities for the people to receive the curative treatment. That's an issue as well.

Mr. Peter Mancini: Mr. Chairman, I would make one request. I don't know if the staff can do this, but in light of some of the comments, I'd like it if we could get two sets of statistics. One is the reoffending rates of those who are charged. Secondly—and this is a very difficult one, and I have great understanding if you can't get it—in light of the comments that this is a cash cow for defence lawyers, what I'd like to have is the statistics of the number of individuals who appear before the courts represented by private counsel, charged with impaired driving, versus the number who appear unrepresented.

The Chair: We'll try to get those statistics for you, Mr. Mancini.

Mr. Peter Mancini: Thank you.

The Chair: Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): I'd also like to find out... I don't believe, at least in the province of Nova Scotia, legal aid will pick up impaired drivers unless it involves an indictable—

Mr. Peter Mancini: That's my reason for the request. You're right: we had so many people coming because they couldn't afford private counsel, which is why I have some question as to whether it's a cash cow, that legal aid had to close the doors and say they couldn't do it.

Mr. Peter MacKay: We'll talk about this in the absence of the witnesses today.

I want to start by thanking the entire panel. Your testimony is extremely helpful and insightful. Obviously you are in the thick of it. You're in the trenches; you're practising this legislation.

I have a couple of comments before I ask some questions of you.

I don't think anybody in this room, let alone on this panel, would deny the motivation for looking at this particular problem. Statistics have been quoted with respect to the carnage on highways and the cost in human lives and injury. I think that is what mandates us, as a committee, to do something. So I think right at the outset I have to say that it is not an option for us to leave all of the legislation as it is. We do have to look at some form of change.

Where do we go with that? I think the comments made by Mr. Neville are very apt with respect to the need to keep the presumptions and the need to keep the reasonable doubt element alive and well in our criminal law. That's never going to go away. However, in regard to the charter, if I can use Mr. O'Neill's words that the criminal law is often a blunt instrument, the charter has become a scalpel in the hands of an able defence counsel. I can't help but bring my own prosecutorial bent into it when I say that I have seen examples of the cases Mr. Berzins has referred to where it appears that technicalities have resulted in some form of injustice. There are just as many examples on the other side of the coin.

One of the concerns I have about changes that may come about or should come about as a result of our deliberations is that this is going to create a further glut of cases in the courts. Any changes, any tampering with the existing legislation, will result in further challenges, charter and otherwise.

To that end, I would like your reaction to the suggestion that certain sections of the Criminal Code as they pertain to impaired driving should become absolute jurisdiction offences; that is, those offences that do not carry a penalty of over five years should be dealt with in the provincial court. They should become absolute jurisdiction without preliminary inquiry. I would see this as one way to at least avoid some of the delay that becomes systematic in this type of criminal defence.

Mr. Andrejs Berzins: I'd like to comment.

• 1055

With respect, I think that suggestion would have very little effect. The reality is that on the vast majority of offences the crown elects summary conviction anyway, and the bulk of the cases, even where there is a fatality, impaired driving causing death, for example, and it's a straight indictable, are tried in a provincial division anyway. So I think that any changes in elections will have no effect at all.

One thing I wanted to make very clear is that the amendments we're suggesting, or at least that I'm suggesting, I would submit would have to be very carefully scrutinized by the Department of Justice to make sure they comply with the charter and would uphold charter scrutiny. I think that's very important. To reiterate, it's very true that any change at all in penalties could have a dramatic impact on the courts because of volumes.

Mr. Peter MacKay: I take from that that the move toward greater consequences you feel would have the desired deterrent effect.

Mr. Andrejs Berzins: I indicated that I was staying away from the sentencing aspects. My main concern is the trials. On sentencing aspects, I would think that for a first-time offender our existing provisions are adequate. Those are my own views. For repeat offenders I think it's more problematic.

Mr. Peter MacKay: Mr. Neville, would you care to comment on the suggestion of keeping it an absolute jurisdiction?

Mr. Mike Neville: I think Mr. Berzins is right, Mr. MacKay, that the vast majority of the cases are in fact prosecuted in the provincial division. Indeed, even in some of the ones involving bodily harm or death, frequently the election by the accused is for trial at the first level for reasons of cost. The issues are often not jury-type issues; they often are legal issues of causation or charter violations and are not really jury matters. So if you feel that the experience level from a criminal law standpoint is better in the provincial division, and often it is just because of the volume of what they do, the bulk of those cases are going to be tried by choice in that level anyway.

Let me make one suggestion to you about the volume and the so-called backlog. It was my experience, and I think that of most defence lawyers I know, that what dramatically increased the volume of trials in this particular area of the law was the raising of the suspensions—certainly in Ontario—from three months on a first offence minimum to a year, and the absence of a discretionary driver's licence for purposes of employment. There is absolutely no question that the volume of work went up dramatically for lawyers. Living with a three-month suspension versus the cost of legal fees some people were prepared to do; they'd hoof it, cab it, car pool it or whatever you like. But when it went to a year—and now we're talking one year, three years, etc.—it simply became economically essential without question that people defend themselves.

As the charter jurisprudence developed—because we should realize of course that the charter didn't come in until April 1982—concurrently as areas of defence developed and the incentive to defend oneself because of the consequences was put in place, therefore your trials. It's as simple as that, it's the law of supply and demand in its own way of expression.

If there were some degree of intermittent driving privileges so that the economic hardship, particularly to dependants, as opposed to the accused, could be dealt with, I think frankly you would see your trial levels go down. People are defending because when it comes to what matters, bread on the table, they have to.

Mr. Peter MacKay: In terms of the use of evidence from the scene—that is, the reasonable and probable grounds the police officer has to have—back in the early eighties there was a shift in the law that no longer allowed police officers to demand sobriety tests. It has to be voluntary now. Without getting into the argument about human frailties of judges or prosecutors or police officers in their interpretation of these initiatives, how would you feel about the suggestion that there should be a legislative initiative that would grant police officers the right to make those sobriety-type demands upon pain of refusal, similar to a refusal for a breathalyser? Would that not—I suggest it would—allow police officers to be more objective and if a person passed those sobriety tests at the scene it might avoid the entire charge?

• 1100

Mr. Mike Neville: Firstly, the ability of the police or the right of the police to ask that those be done has been upheld. What is not allowed under present jurisprudence is the use of the results in proof of a charge, simply because there's no right to counsel. The use of sobriety testing is done concurrently with the roadside stop and you have to reconcile charter rights under paragraph 10(b) with that issue.

The fact of the matter is that with the ability to use roadside devices, triggered by the mere reasonable suspicion of the presence of alcohol and instruments calibrated to fail at approximately 100 milligrams, the need for roadside sobriety tests is almost superfluous. If there's a reasonable suspicion by odour alone and the device is administered and it registers a fail, it triggers all other duties of the police—namely, full arrest, breathalyser demand and the like.

Frankly, it's hard to imagine a lower standard of intervention the police can have, other than an odour from your breath, and it triggers every other power they have. They don't have to get into the semantics of whether his eyes were crossed or straight, or he swayed or he didn't sway; if there's an odour and he fails, he's arrested.

Mr. Peter MacKay: It's back to marked departure—

The Chair: I'm going to have to cut you off, sir.

Mr. Alcock.

Mr. Reg Alcock: Thank you, Mr. Chairman.

Let me try to set a context for the concern I have and then I'll ask a couple of questions.

It's a terrible thing when somebody who is acting irresponsibly then kills or injures somebody else. I can't imagine the rage I would feel if somebody who was acting irresponsibly in any manner, taking alcohol, drugs, or whatever, ran over one of my kids. There's an enormous amount of emotional content in this. But I always worry about us when we sit down to talk about law and rights and it's driven by that sort of emotional loading.

As a piece of personal history, I'm the son of a policeman and I grew up in a policeman's home. I grew up in barracks for a while. I sat at a dining room table that was regaled with stories of slippery defence lawyers and incompetent judges from the time I was able to understand what that meant until the time I left home at age 20. I got married a few years ago and I meet every Sunday night with the extended family, one of whom is married to a police officer. So 20 years later I'm now regaled with stories of slippery defence lawyers and incompetent judges. I'm not sure how the world has changed, frankly. I hear that all the time.

I'm worried about something that hides within that. There's a concept that's come out of Britain as they've looked at this whole question of wrongful conviction, particularly for very serious crimes. To express this concept they coined the phrase “noble cause corruption”, which is that we believe the end product is noble and good for the community, the reducing the number of people who are acting irresponsibly in our communities and committing very terrible acts.

But I think we have to be very careful. Mr. Harris used a figure just recently in his question; he said that for every charge, there are 2,000 offences. If that's the case, if you just look at the stats here—I like figures, so I was playing with the math here—that means that every man, woman, and child in Canada has committed the offence 6.7 times every year. I think that debases the whole argument.

Mr. MacKay—not that I want to be associated with Mr. MacKay too often, but occasionally he says things I find useful—referred to the concept of the scalpel in the hands of a defence lawyer, that whole sense of trying to use the law in that manner on our side. If this committee can find a way to intervene to assist the law, to assist the work of all of us—defence lawyers, who also have kids who drive around these communities, as well as judges and the police and everybody else—in removing people who are acting irresponsibly, I think that's a good thing. If we can find mechanisms in here to do that, to empower people, to say to people who have demonstrated they are unable to conduct themselves in a responsible manner they'll no longer be active in our communities, I support that 100%.

• 1105

The question I have is for the gentleman who came forward with this recommendation, Mr. Berzins. I haven't done the test, but I understand this committee is going to go and have a few drinks and blow the breathalyser, just to understand it. I should say that I don't drink, so I probably will get reasonably impaired on a couple of glasses of wine. But as I understand it, a person who sits down at a meal and drinks two or three glasses of wine can blow about .05.

I also understand, if you look at the statistics here, that 0.3% of Canadians over the age of 16 who drive cars are the ones who are charged every year. Forget about convictions. If that's the case, then we are going to put at risk, particularly if we reduce their rights on the street, everybody else who is out there leading their lives normally, being responsible, driving to and from things, and having a few glasses of wine with dinner or whatever they do, who aren't acting irresponsibly. Right?

If what you're saying to me is that at the roadside we're going to remove their rights so that anybody is all of a sudden drawn into this net, if we're going to broaden the net in a way to make it easier for... I mean, I'm a little interested in this whole thing about extremely effective defence. I thought we had extremely effective police and extremely effective prosecution too. I would hope all three of these things would be extremely effective. I don't see it being a negative thing to be extremely effective. So I worry about, in a broad-brush way, playing with the symbol—because we have a symbol, like .08—in response to the emotion, instead of looking at what the problem is and what the statistics are.

This is my final point. In the statistics here, which came from Statistics Canada—and admittedly they can't test everybody, and they didn't test the anecdotal case you used, I'm sure—it says that 35% of the 16,117 fatally injured drivers who were tested were legally impaired, and less than 8% had any evidence of alcohol at all in their blood. That's from .01 to .08, or whatever the hell the number is. You know what I mean anyway. So if we move it to .05, presumably we're going to take out some portion of that less than .08. So 2% will now move from the unimpaired but have alcohol in their blood, into the impaired column. That results in about 20 people a year.

I'm wondering if putting at risk everybody else in the community who are just leading their lives responsibly and enjoying their lives the way people sometimes like to do—unlike MPs—is worth it.

Mr. Andrejs Berzins: Well, I think where you're wrong is in your assumption that you could have two glasses of wine with dinner and be over .05. That's simply not true. You would be well below .05 with two glasses of wine over dinner.

Mr. Reg Alcock: Is the average person impaired at .08?

Ms. Eleni Bakopanos (Ahuntsic, Lib.): It depends on the weight. It depends on the sex.

Mr. Andrejs Berzins: The evidence suggests that at that level reflexes are affected.

Mr. Reg Alcock: Are they impaired? Is their ability to function impaired?

Mr. Andrejs Berzins: Well, certainly having your reflexes affected is impaired. That's exactly what impaired—

Mr. Reg Alcock: Eating too much red meat impairs my reflexes.

Mr. Andrejs Berzins: I'm sorry?

The Chair: Let Mr. Berzins answer the question.

Mr. Andrejs Berzins: Certainly the evidence is clear that the normal person at .08 has certain abilities, including reflexes, substantially impaired.

The reason I'm recommending the legal limit be changed to .05 is that as long as you maintain it at .08 you're promoting a permissible amount of heavy drinking. Believe it or not, you have to drink a great deal to get over .08—a great deal. And while you have such a high standard, I think it sends out the message that it's okay to drink a lot as long as you don't go over that limit. So if it's lowered I think the general message the public would adhere to is maybe one drink or two drinks, but that's it.

Mr. Reg Alcock: But the general public seems to—

The Chair: One final quick question, Mr. Alcock.

Mr. Reg Alcock: Let me ask the other question then to the other gentlemen on the panel here.

• 1110

Given the concern about trying to find those scalpels, if you like—and I assume that the other three of you are involved somehow on the defence side of this thing, given the way this has been set up today—in your experience are there elements in there that would allow us to differentiate and to remove at an earlier stage those people who were not being affected by the current system?

Mr. Mike Neville: Maybe I can use the Ontario example again. Under our provisions for roadside stopping, RIDE programs, or whatever, a machine is normally calibrated for what's called a warn at 50 milligrams and a fail at 100 milligrams. Under our highway traffic legislation, if by way of a random stop or a RIDE program the driver blows a warn—i.e., between 50 and 100 milligrams—they are automatically suspended for 12 hours. There is your mechanism right there. Generally speaking, the car is towed away, and their licence is taken from them right there on the spot. So there is a mechanism in place where if that type of person comes in contact with the police, they can in fact legally be removed from the road, with all the penalties that flow should they choose to drive within that 12 hours. So there are provisions in place.

I think part of the problem, as I said earlier in my opening statement, is a lack of uniformity, because I'm not sure that exists in every other province.

Mr. Ravi Prithipaul: It does in Alberta. If I may just jump in, similar mechanisms exist for temporary suspensions and also for immobilization of the driver's vehicle.

The Chair: Thank you.

We'll now turn to Mr. Cadman on round two. On this side, Mr. Harris or Mr. Brien, do you have any questions? Sorry, I think Mr. Saada is first.

[Translation]

Mr. Jacques Saada: There is one question I've put to many witnesses before you. I'm trying to find a solution but quite honestly, I haven't found it yet. Let me put the same question to you.

Quite clearly, if the figures we are given regularly are justified, the problem of impaired driving essentially resides in a small hard-core group of people who are generally repeat offenders and who are responsible for a substantial majority of the accidents that occur. The figures I read in this regard indicated that 1% of the people charged with impaired driving were responsible for two thirds of the accidents that occur.

When we talk about public awareness, we're not talking about the repeat offenders; we're talking about the vast majority of cases, notably the mother or father who had a problem once, who has drunk excessively once and for whom quite often the simple fact of going through the whole arrest and trial process serves as an extremely effective deterrent. Therefore, this is not where remedial action is needed.

The remaining 1% have already proven impervious to coercive measures imposed by law, whether these measures are administrative or legal, whether federal or provincial, and have offended again. Awareness campaigns have not been unsuccessful in their case and we're currently trying to see how we could change the law if necessary and see who is doing their work properly and who is not, but we forget a fundamental problem. It's not the entire system that is a problem; the problem is that there are 1,400 deaths on the highways and that most of these 1,400 deaths, when they involve impaired driving, are caused by a small core that is never affected by public awareness campaigns or legal action. Therefore, increasing the penalty or its severity in their case solves nothing.

What do we do about this 1%? In my opinion, with all due respect, reducing the legal limit from .08 to .05 doesn't seem very relevant. Indeed, many witnesses illustrated the fact that the lower the blood alcohol content limit, the more judges tend to take into account the possible margin of error. So that solves nothing.

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So that is my question. What can we do specifically to reach that hard core which is both insensitive to public awareness campaigns and the deterrent inherent in severe penalties?

[English]

Mr. Mike Neville: Frankly, I'm not sure that type of person is any different from a general criminal recidivist. There are repeat break-and-enter artists and repeat sexual assault perpetrators. This happens to be their crime. I don't think licensing legislation will change it. Many of these people will drive unlicensed, uninsured, while prohibited, or while suspended. They will get people to rent cars for them, or they will steal cars.

I think we may have to accept that a percentage of the population is going to commit this crime. The ultimate remedy our law recognizes is separation from society for the longest period. If for certain people putting them in jail for lengthy periods of time is the only way to keep them from that temptation, so be it.

Mr. Andrejs Berzins: If I could comment on that, it's true there is a problem with recidivists, and they do account for a large number of the cases we have. These are people who are clearly alcoholics and who have a very substantial problem. My suggestion would be that the only type of penalty or sentence that would be appropriate in that case would be either a lengthy jail sentence where they're separated from society, as Mr. Neville says, or an intensive residential alcohol rehabilitation program.

I think it's the latter we have a lack of. As we know, the intensive residential programs are very expensive and very hard to get into, and they just don't exist for the average person. So I think it would help if we had more of those and gave the individual a choice as to whether they go into one of these programs or to jail, one or the other.

The Chair: Thank you.

Mr. Harris, are you ready?

Mr. Dick Harris: Yes. Thank you.

I would just like to zero in on point four of your document, Mr. Berzins, with regard to reducing from 80 milligrams to 50 milligrams. Could you just talk about the rationale behind it? It's one of the things that has come up in this whole exercise.

Mr. Andrejs Berzins: The issue of the legal limit is one that is also somewhat of an international issue, because there are different practices in different countries. In the majority of states in the U.S. it's 0.1 milligrams. It's a little bit higher than ours. They are lobbying. MADD, for example, is lobbying to bring it down to 0.08 milligrams throughout the various states. On the other hand, I understand that in some of the Scandinavian countries it's zero, simply no alcohol. France, I believe, has 0.04, and there may be some with 0.05.

The rationale as to why I'm advancing this as my personal observation is that judging from what I have seen in situations where people drink and then submit to tests, you have to drink a lot to get over 0.08 milligrams, and I think that while that is the case, we encourage and do not deter heavy drinking. I think it is the general belief that you could have quite a few drinks and still be under the legal limit. I think that kind of belief encourages heavy drinking. I think our law shouldn't be such where we are in fact making legal or permissible heavy consumption of alcohol and driving at the same time, and that's what our current law is.

Mr. Dick Harris: Thank you.

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The Chair: Thank you.

Ms. Bakopanos, you're next on the list.

Ms. Eleni Bakopanos: Thank you.

My questions will be addressed to Mr. Neville. First of all, you're not the first witness who has come before the committee to say that taxes on alcohol are a big cash cow—we'll use the term you used on another group in society. I would question that, and state that the health care costs—another subsidiary cost to a government—would outweigh whatever the government would get in terms of taxes on liquor.

We can talk about the figures if you like, but I find that blanket statement to be irresponsible in some ways. You're not the first witness who has stated that. There are other costs to governments in terms of people not going to work, people dying on highways, and so forth.

You stated that zero tolerance would be an unacceptable premise. You based it on the fact that we should let societal thinking go along the route, and until we arrive—at least that's how I interpret what you said, so you may want to correct me—at a society that believes no one should drink, zero tolerance will not work.

Did I understand you properly?

Mr. Mike Neville: I think I said where you combine zero tolerance policies and virtually no judicial discretion, you will almost inevitably create injustices. If judges do not have discretion on the matter of sentence and the like, and every offender without exception or discretion is prosecuted, namely zero tolerance, you are going to create a series of injustices, not just in this field but in any field. It applies across the board.

Ms. Eleni Bakopanos: Would you not feel that zero tolerance would be acceptable for the front end of those young drinkers who are now starting to drink, where the educational message has had somewhat of an effect? However, we were told by witnesses before—and I forget what group came here—that there is good news and bad news there: there are fewer young people drinking, but the ones who drink cause the accidents.

I'm looking at it from the perspective of starting with the teenagers, the young people, and saying it's zero tolerance for young people. At the other end, with the alcoholics, I agree with most of what you've said, in that it has to be a holistic approach. Other witnesses have said that too. Just changing the law will not solve that problem, but I tend to favour that for perhaps the younger generation—first-time drivers.

Mr. Mike Neville: Can I give you two responses? To come partly to my own defence on the taxes issue, it was simply to say that to promote it as a society on the one hand and benefit from it and on the other hand say you're very naughty seems to be a bit inconsistent.

However, on your second point, more importantly, we have a version in Ontario of that for the novice driver. If a novice driver within a certain age bracket of early driving blows any alcohol in the roadside device, their licence is gone. So in Ontario we have a version of a special approach to the novice driver I think you're asking me about.

Ms. Eleni Bakopanos: Yes.

Mr. Mike Neville: But again it's a question of provincial uniformity.

Ms. Eleni Bakopanos: Does it work in Ontario?

Mr. Mike Neville: I'm sorry, I can't tell you the answer to that statistically. Perhaps someone from either Mr. Berzins' ministry or the Ministry of Transportation in Ontario might be able to tell you.

Ms. Eleni Bakopanos: Thank you very much.

The Chair: Mr. Mancini.

Mr. Peter Mancini: Just a quick question again on this recommendation of reducing the limit to .05. We had witnesses before us who gave us the history of .08 and they talked about the first test done in England in 1950. Then they talked about the Grand Rapids study in 1964. I'm just wondering if you're familiar with that, given your recommendation.

Mr. Andrejs Berzins: I'm not familiar with that.

Mr. Peter Mancini: That's all then.

The Chair: Thank you.

Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Mr. Chair.

Further to Mr. Mancini's request for statistics from the researchers, I think it would benefit the committee if we knew the actual number of persons who, once charged, are convicted, either through a plea of guilty or a trial. I think Mr. Berzins' estimate is about 75%. I think he indicated 50% plead guilty and 50% of those who are tried are convicted. If I remember correctly, the Canadian Police Association gave us a figure of something in the order of 96%. I think it would benefit the committee if we could get a handle on that at the beginning.

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My question deals with Mr. Berzins' recommendation one, where you're suggesting that the prosecutions be made more effective and more likely to bring out the truth in a fair and expeditious manner. Whatever these figures work out to be, whether it's 75%, 96%, or some other percentage, from that statement in the recommendation I take it you don't believe there's truth or fairness unless there's a 100% conviction rate. That's the impression I'm left with. I'd like your comments on that.

Mr. Andrejs Berzins: Of course I'm not arguing in favour of a 100% conviction rate. That would not be realistic, nor would it be reasonable.

The point I'm making, sir, is that in the vast majority of impaired driving cases it is very well known to all of the players in a system—the judge, the defence lawyer, the accused, the prosecutor—that this person had a certain breathalyser reading well over the legal limit. That is clear. And the entire process then focuses not on whether or not this person drove and drank over the legal limit, but how we are going to be able to exclude that or to prevent that fact from emerging in court. That's what the entire emphasis of the trial process is in the majority of impaired driving cases.

I acknowledge there are certainly impaired driving cases where the person wasn't over the legal limit, and those require trials and acquittals if necessary. I'm talking about the situations where it's well known what the results were.

Mr. Paul DeVillers: In the next statement in your recommendation one, dealing with the charter, you say: “Any proposed amendments would have to comply with the Charter of Rights and their practical impact on police...” From that statement I gather the charter is some academic exercise and should have no practical implications.

Mr. Andrejs Berzins: No. What I meant to say is this. If, for example, the legislation were changed, as I suggested, to make it .05 instead of .08, we would have a tremendous increase in the number of cases before the courts, and that also would have a huge impact on police, as far as their apprehension rates and their court appearances are concerned, and on the need for more prosecutors and judges. So all I'm saying there, really, is that any amendments you recommend have to be done in close consultation with the provinces that are responsible for the administration of justice, to see what practical impact that has on the courts.

As Mr. Neville indicated, we had a huge impact on the courts as a result of the provincial mandatory one-year licence suspension in Ontario, and it has a very significant impact on other cases as well, as a result.

Mr. Paul DeVillers: Thank you.

The Chair: Peter MacKay.

Mr. Peter MacKay: I take Mr. Berzins' point to be that although the law has become very complex, there is still a way to maybe simplify it through some legislative change. Overall what we're hearing is there's certainly room there. But my own personal inclination is we should be looking more at the accountability aspect, as opposed to the consequences.

To that end, my question is—and I think I'll pose this to my classmate, Mr. Prithipaul—it seems there is an ability, perhaps, to be a little more proactive here in terms of getting people into treatment, getting them to recognize a problem that may exist. There are going to be those hard-core drinkers that are going to, as Mr. Neville said, steal a car or rent a car under false pretenses and go out and drive. That's the chronic problem. Without putting too fine a point on it, it's like the problem of deadbeat dads. The law is not going to fix that problem.

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But I'm wondering if there isn't something we can do to put more incentives in place. The old Alcoholics Anonymous mantra is that the first sign of getting on the road to recovery is recognizing the problem is there. What is your reaction, charter implications included, to mandatory treatment for first-time offenders? For those who have continued to drink and drive and are getting greater sentences, what about putting in incentives that say if you participate in public education programs, if you successfully complete x number of hours of treatment, if you are going to take positive steps, that will be taken into consideration, not up front when the sentence is first handed down but in terms of the return of your driving privileges?

I do disagree with you, Mr. Neville, that it's a liberty. I think the licence has to be still viewed as being a privilege. I still see it as very much a privilege.

At any rate, I'll leave you with that to reply to.

Mr. Ravi Prithipaul: Perhaps in principle what you're suggesting is not objectionable. There has to be a recognition that, as I said, the motivation must come from within. I would suggest that if this committee is contemplating changes along those lines, you should invite submissions from professional counsellors, those who have experience in dealing with this kind of problem, and inquire into the practical ramifications. My own sense of it is that you will not be able to change committed drinkers who don't realize they have a problem.

Now, I'm speaking here only as a lawyer who deals with people as clients. I'm drawing on my own experience. But I would be wary of imposing changes that would be too invasive.

Also, I don't know what kind of positive reinforcements you're talking about, but drivers' licensing is, of course, a matter of provincial jurisdiction. So if you're thinking about, for example, returning people's drivers' licences to them earlier, then you'd have to find some way of getting provincial co-operation.

I can advise you that to some extent the ignition interlock program, which already exists in Alberta, works along the same lines. Just so that the committee is aware, this is a device that fits over the ignition mechanism of a vehicle. It's available to Albertan offenders after the expiry of a judge-made, court-imposed prohibition. So if one is prohibited for three months on a first offence, one can apply to the driver control board and have the device installed at one's own cost. If the offender starts exhibiting a pattern of drinking and driving, the driver control board of course has the residual discretion to prolong the use of the device.

So I'm suggesting that to some extent the provinces already have ways of addressing the mechanism you're proposing.

Mr. Peter MacKay: I guess it comes back to resources.

The comment was made about the amount of revenue that's brought in from liquor sales and of there being an element of some hypocrisy there as to what money might be spent.

I know that in the province of Nova Scotia, and I believe in Mr. Berzins' reference too, these programs are not available. It's very easy for a judge to say, as part of your period of probation you are to complete an alcohol rehabilitation program. In rural areas some of those programs are not there, they're very limited, or the person has to drive to get there. So there's a great irony in that.

I guess it comes down to government priorities. If the government wants to put the emphasis on these type of rehabilitative elements, the money has to be there to back it up.

In your experience, what's the availability in your provinces?

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Mr. Mike Neville: I can give you a concrete example, Mr. MacKay. Generally speaking, in Ontario the residential treatment program for those with a drinking-and-driving problem or just a straight alcoholism problem was of 28 days' duration, followed by a period of after care, which could be as long as two years. For reasons of pure funding, the 28-day residential program has now become 21 days. Week four is now on an outpatient basis. Why? I don't think I need to spell it out. It's straight cost.

Mr. Peter MacKay: They just closed one in my riding.

Mr. Mike Neville: There you go.

Mr. Peter MacKay: They closed the doors completely.

Mr. Mike Neville: The holistic approach, with all due respect, has to include the provinces, as Mr. Berzins said, from a law enforcement standpoint. Health spending, health care, and highway traffic enforcement are all provincial matters, and they have as much of an input.

On your question to Mr. Prithipaul, the new provisions in Ontario for post-conviction education and/or treatment are in effect exactly what you're asking for. Prior to that, the licence automatically came back after your twelve months with nothing being done; it was just there in the mail. Now the first offender must provide confirmation, which comes through the program, that they have taken an eight-hour educational program. The educational program is on the evils of drinking and driving. If you are a second or subsequent offender, it is a sixteen-hour program, consisting of eight hours educational and eight hours counselling or medical.

Mr. Peter MacKay: That's administered by the province.

Mr. Mike Neville: The program is run by the province, and they notify the ministry if or when you have complied with the requisite number of hours, depending on your status. No licence if you don't do it, and user pay.

Mr. Peter MacKay: So this is part of the discrepancy.

Mr. Mike Neville: In Ontario it came into effect in October 1998.

Mr. Peter MacKay: So this ties in with your point about the discrepancy among the various provinces.

Mr. Mike Neville: Yes.

Mr. Peter MacKay: Thank you.

The Chair: Mr. Grose, do you have a question?

Mr. Ivan Grose (Oshawa, Lib.): Thank you. I'll be very brief, as usual.

I'm extremely concerned, and not just in this meeting today, that we're slowly sliding toward the concept that our real problem is with the bottom 1% of the drinkers and offenders. Having a more than nodding acquaintance with the consumption of alcohol, I find that most, although not all, hard-core alcoholics eventually slip out of society. So for this purpose, let's forget them. They probably can't afford a car anyway. They don't have the ability to operate in society, so why do they need a car?

Let's be honest with ourselves. Go to the ordinary parliamentary reception, and if you're not drinking, observe the other people. They drink too much to be able to drive, but they do it. Go to a charity affair where there's alcohol, and people drink too much and drive, but they are there for a good cause. These are the people who inadvertently go out and kill someone on the way home. It's a tragedy not only for the person who was killed, but also for the individual who did the killing. He or she has an awful lot to lose. I think we have to concentrate on that part of it.

Don't keep referring to these hard-core alcoholics who are a separate problem altogether. They're a problem in society other than from driving a car. Let's not get trapped in that way. Let's look at ourselves, because we are among the offenders. Thank you.

The Chair: Is there any comment on Mr. Grose's comment?

Mr. Andrejs Berzins: I fully agree with Mr. Grose. That's a very valid point.

The Chair: Thank you.

Are there other questions before we close?

There being none, I'd like to say that I appreciate the panel being here this morning. It has been a long morning, but certainly from our point of view a very productive one. I think there is no question that you have made a difference in our deliberations. Thank you very much for coming.

The meeting is adjourned.