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 18, 1999

• 0944

[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): Mr. Reynolds, we have a motion on the floor that we'll deal with first, and then we'll get on to you. We won't be too long, I hope.

Mr. Cadman, you were going to move a motion, sir.

Mr. Chuck Cadman (Surrey North, Ref.): Yes. Thank you, Mr. Chair. This is a motion I'll read into the record.

Pursuant to correspondence dated February 10, 1999 from the Premier of British Columbia and the Attorney General of British Columbia to the Prime Minister of Canada and the Minister of Justice and Attorney General of Canada, copy attached, and pursuant to the interest and concerns of all Canadians with the issue of home invasion, I move that the Standing Committee on Justice and Human Rights immediately examine the phenomenon of home invasion with a view to: one, expressing the seriousness with which Parliament views the act of invasion into homes and its terrorizing effect on the inhabitants; and two, amending the Criminal Code to make the act of home invasion an aggravating factor to be considered at sentencing upon conviction of any resulting offence; or three, if deemed to be necessary, amending the Criminal Code by creating a new offence.

• 0945

Mr. Chair, the whole problem of home invasions in B.C. has become epidemic. We've had one murder actually result, or one that we know of. Just two weeks ago we had a judge in Victoria pass a 14-year sentence on a 21-year-old fellow who was involved in a home invasion. We're certain that's going to be appealed. I know it is.

I'm moving this motion because this is of concern to citizens of British Columbia, and I think it's spreading across Canada, because we're certainly getting a lot of reports coming out of Toronto and the major centres that it is becoming a real issue.

This goes beyond simple B and Es. We have people breaking into homes and in a lot of cases things aren't being stolen; it's done for a purely control factor. People are breaking in and terrorizing senior citizens and families. It's an issue we have to look at.

I know time is at a premium in this committee, but it's something I want on the table, and I think we have to discuss it eventually, because the Premier and the Attorney General of B.C. are looking for some guidance and some help on this issue.

I'll leave it at that.

The Chair: Are there any other speakers or comments on the motion?

Mr. DeVillers.

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

We certainly appreciate Mr. Cadman's concerns with home invasion, and it's something that's shared not only in British Columbia but throughout the country. There's a high-profile one in Toronto. It wasn't really a home invasion, but it was virtually a kidnapping off the street of a well-known lawyer in Toronto.

However, we have the copy of the letter from the Premier and the Attorney General of British Columbia, and that's in the system dealing with the Prime Minister and the justice minister. It may be crass to say this, but it comes down to committee time and the workload of this committee. How are we going to be able to deal with the business the House is sending us, such as the Young Offenders Act, which we expect to be getting soon and which is a major legislative task that the committee is going to have to undertake?

As much as this is certainly something that needs to be reviewed, I just don't see how this committee can fit it into its schedule at this time. It's in the system now, through the intervention of the Premier and the Attorney General of British Columbia, and I'd suggest that's the proper vehicle by which it should be explored.

The Chair: Are there any other comments?

Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Without debating the merits, because I totally accept what Mr. Cadman has said, I'm wondering if he would entertain an amendment to his motion just to remove the word “immediately”. If that were the case, we would put this matter on the list with other important matters and deal with it, to use the Minister of Justice's often-used phrase, “in a timely fashion”, perhaps at the conclusion of our study of CCRA, impaired driving, and the young offender review. I just put that forward as a possibility.

Mr. Chuck Cadman: I certainly don't have a problem with that, Mr. Chair. Again, I understand; I'm fully aware of the workload we have. I just feel it's something I would like to see addressed, not necessarily tomorrow, just sometime in the reasonably near future. But I certainly have no problem with that amendment.

The Chair: Is it an amendment? Have you moved that, Mr. MacKay?

Mr. Peter MacKay: Yes.

The Chair: Okay.

Ms. Bakopanos.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): I just want to put on the record, Mr. Chairman, that the minister has been in constant contact with the Attorney General of British Columbia, and this item will be put on the agenda of the next federal-provincial discussions.

I would advise that we wait until there has been more discussion between the attorneys general and the minister. If there is need, I'm sure the minister is prepared to come back to the committee and say we should be studying this issue, but for the moment, it would be a little too quick to act, especially since there are ongoing discussions between the federal and provincial governments on this issue.

The Chair: Mr. Reynolds.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): My only comment to that would be we're not here actually to wait for the government to tell us what we should be doing or what they think we should be doing. If we think, as a committee, that it's an important issue, I can accept what my colleague from the Conservative Party says: take out the word “immediate”, but let the public know this committee is going to look at this issue in a timely fashion. We do have other issues, so I don't see why we have to wait for the government to tell the committee what it should be doing.

The Chair: Mr. Saada.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): The point I was going to make was the point raised by Ms. Bakopanos. There is a process in place. It's all fine to show that we are concerned with it, and it's very good to do that, but we should avoid duplication of efforts.

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There is a process in place that is going to address the issue. If the issue is not addressed, we should indeed take it on, but the issue will be addressed.

The Chair: Mr. Harris.

Mr. Dick Harris (Prince George—Bulkley Valley, Ref.): I would like to speak in favour of the motion as possibly amended by removing the word “immediately”.

It's incumbent on the committee to adopt this motion to reflect the interest of the justice committee in the issue. Upon our adopting it, the minister would be notified that the committee had adopted this motion, and perhaps we could request some sort of response from her regarding her views on it and maybe have a full explanation of just exactly what she has in mind on this issue.

The Chair: Mr. DeVillers.

Mr. Paul DeVillers: In response to Mr. Reynolds' comment that the committee is not here to wait for the government, it's sort of the reverse: anything this committee recommends has to go through the legislative process, and the government will be in the position to ultimately have its say at that time. The opposition may not enjoy that position, but....

Also, to pile on the committee an agenda without timeframes I don't think is the best way of proceeding, Mr. Chair. It's less than honest with the public if we're saying we're going to take on all these issues du jour and stockpile them on the committee agenda without any realistic opportunity of dealing with them. That's not the way this committee should function either.

The Chair: Mr. MacKay.

Mr. Peter MacKay: In response to that and the point made by Ms. Bakopanos and Mr. Saada, putting it on the list is one thing. We're not putting a timeframe here.

I'm more than aware of the busy agenda. However, if nothing transpires between the provincial and territorial governments and the minister that addresses this, at least then we have a mandate to go ahead. And if not, if something transpires that addresses the concerns Mr. Cadman has put forward in this motion, we can simply remove it from the agenda.

The Chair: Mr. Alcock.

Mr. Reg Alcock (Winnipeg South, Lib.): Thank you, Mr. Chairman.

I'm not certain who gets the credit for this statement, whether it's the Chinese or the North American Indians, but isn't there a saying that the person who chases too many rabbits catches none?

The trouble I have with this particular process is that on the one hand we have a protestation of a non-partisan desire to come here to deal with important public issues, and yet we run so many issues at this committee that we can't possibly deal with them all in any kind of responsible fashion. Any reasonable person looking at that is going to ask, which one do you want to priorize? We have a bunch of them.

So then one has to question, why does this continue to happen? Is it because you have a realistic desire to have an appropriate discussion about these issues, or is it simply because you want to get this side of the House to vote you down so you can go and send out a whole bunch more stuff saying how we are in favour of home invasions or in favour of child pornography or all that kind of stuff? I have to tell you, I just think it's kind of silly.

This committee has a very serious agenda dealing with very major issues that have been of concern to Mr. Cadman and others, such as the Young Offenders Act and drunk driving. It can only take on so many things. The parliamentary secretary has indicated that the minister is seized of this issue and that the department is going to deal with this issue and hopefully come back to us if they feel there's a need for changes in the legislation.

Mr. MacKay's suggestion is at least helpful in the sense that he's saying we all recognize there isn't a person in this building who's in favour of home invasion and doesn't think it's a serious problem. The question is, what can we responsibly do?

I just don't accept the statements that are made about why you come forward with these things.

Thank you.

The Chair: Okay. This will be the last comment and then we'll call for the question.

Go ahead, Mr. Cadman.

Mr. Chuck Cadman: I take offence at being called silly for bringing this forward. I would suggest that the member may want to attend some of the meetings that have been going on in East Vancouver and in Surrey, B.C. with very concerned senior citizens who are afraid to open their doors in the evenings now. This is not silly. This is a response.

Mr. Reg Alcock: And in Winnipeg and in Toronto and in Montreal.

Mr. Chuck Cadman: Absolutely. That's what I said. This is spreading across Canada. It's a phenomenon we're seeing right across the country. I'm bringing it forward because I've been asked by my constituents to bring it forward, and that is where my responsibility lies. I see nothing silly about it.

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If this committee doesn't want to deal with it, so be it; that's fine. I understand the workload. I'm fully aware of the workload. I just think it's something we should at least show people in Canada we are concerned about as a committee.

Mr. John Reynolds: Mr. Chair, I have a point of order.

Mr. Alcock, I'm quite prepared to start meeting twice a day, any time you want, to discuss some of these issues. We're know they're important, and our members will be there. Increase the number of committee meetings any time you want.

An hon. member: What about Saturday morning?

The Chair: I call the vote on the amendment, please. The amendment is to delete the word “immediately”.

An hon. member: That was a friendly amendment.

(Amendment agreed to)

The Chair: I call the vote on the main motion as amended.

An hon. member: Recorded vote.

(Motion as amended negatived: nays 7; yeas 5)

The Chair: Perhaps we can move on to our witnesses now.

Tamra Thomson and Heather Perkins-McVey, thank you very much for attending. I understand you have a presentation to make to us. The presentation should take approximately 10 minutes, and questions and answers will follow from there. Go ahead, please.

Ms. Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Mr. Chair.

The Canadian Bar Association is a frequent witness before this committee. This is our first appearance since the very tragic death of your former chair, Shaughnessy Cohen. We would like to say we will miss her zeal for justice and her joie de vivre. At the same time, we welcome you, Mr. Chair, and we look forward to our continued work with this committee.

The Chair: Thank you. We miss Shaughnessy as well.

Ms. Tamra Thomson: The Canadian Bar Association is a national association representing over 35,000 jurists from across Canada. Amongst its primary objectives are improvement of the law and improvement of the administration of justice. It is in that vein that we make our presentation to you today.

We are here today on behalf of the national criminal justice section of the Canadian Bar Association. The section is comprised of both crown counsel and defence counsel from across the country, which gives the section a very balanced view on the legalities of this issue.

I'm going to ask my colleague, Heather Perkins-McVey, to make the substantive points on the letter you have been given from the Canadian Bar Association, and then we would be happy to entertain your questions.

Ms. Heather E. Perkins-McVey (Vice-Chair, National Criminal Justice Section, Canadian Bar Association): Good morning.

We, the executive of the criminal justice section, have spent much time discussing the issues in your paper and have put before you the letter of February 16.

The Criminal Code penalties as they currently exist go a long way towards reflecting societal attitudes about the seriousness of the offences. The most important thing to note is the fact that the current Criminal Code provisions provide only minimum punishments and that upward ranges of sentences can be prescribed as situations dictate.

Our current provisions of the Criminal Code give judges the full authority to hand down very lengthy sentences when circumstances warrant it. In the experience we have as both crown attorneys and defence lawyers across the country, it is quite clear that judges are getting the message and that the current trend in sentencing of offenders for impaired driving cases is towards increased sentences, particularly in cases where there are serious consequences resulting in accident, injury, or death.

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We are seeing that the judges are imposing deterrent sentences, and we should not limit that judicial discretion in determining the appropriate sentences. Because a minimum punishment is prescribed, these are not even the kinds of offences where conditional sentences are applicable. Judges are imposing deterrent jail sentences when required.

We recognize that the current Criminal Code provisions for licence prohibitions allow prohibitions in excess of 10 years only for offences of criminal negligence causing death and manslaughter. And we recognize that there are other offences—dangerous driving causing death, impaired driving causing death, criminal negligence causing bodily harm, charges such as that—where Parliament might consider allowing judges the discretion to impose greater prohibitions in excess of 10 years when circumstances warrant it. We think that's appropriate if the studies before you link licence prohibition to a reduction in the commission of offences.

We also recognize that the current three-year limitation of licence prohibitions for repeat offenders may not be sufficient, and we also recommend the expansion of a judge's discretion to prohibit someone from driving for longer periods of time for cases of repeat offenders.

It's important to note, however, that the provinces already, through their powers of licence suspension, have imposed lengthy suspensions for repeat offenders. I'm aware that in the province of Ontario, a third-time offender, for example, may be subject to an indefinite suspension.

We also recognize that for offenders with serious substance abuse problems, increased sentences may not be the answer, and that loss of the ability to drive may provide sufficient deterrence and protection of the public in terms of the safety of our roads.

Also, the federal laws, the Criminal Code provisions, must be applied consistently throughout the country. It is a matter for the courts and for the highest court to determine what is the most appropriate in the circumstances.

Looking at how the laws are enforced, a mandatory requirement that a sample be provided is too intrusive. If the grounds exist for a roadside test—and as you're aware, suspicion is sufficient to make a demand for a roadside test—the current provisions allow the necessary testing to occur with the minimum of intrusion. The provisions allowing a demand based on reasonable and probable grounds are constitutionally valid and are the least intrusive invasion of rights that should be sanctioned.

Looking at the technical time prescribed by the Criminal Code, the two-hour time limit is a sufficient period for the presumption that the driver's blood alcohol content is the same at the time of testing as it when the driving occurred. That is appropriate, given the known science. Beyond the two-hour time limit, the crown attorney is still able to prove their case. This does not preclude the prosecution of the case, but it must be done through the use of evidence from experts who can extrapolate back the blood alcohol content to the time of the offence, the time of driving.

It should be clarified that compelled participation in the screening processes does not amount to self-incrimination, but can only be used as grounds to obtain breath or blood samples.

We also recommend that a specified time limit for administering these tests be prescribed, rather than only providing police with the vague requirement that the test be conducted forthwith. Confusion remains over how long police can wait for the arrival of the approved screening device.

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Further police powers for detection of alcohol are not needed. However, we acknowledge that there are no Criminal Code provisions that permit a demand for testing of impairment for drugs alone. In our view, there should be. The current subsection 258(5) is the only one that specifically addresses the issue of testing for drugs.

There should be such a section. In developing drug testing, however, we caution the government to be extremely wary of the privacy concerns involved and to ensure there are appropriate safeguards to protect those rights.

It's important to note that in terms of the science, we have a device, the breathalyser or the intoxilyser, which can quickly and easily test for the presence of alcohol. No such device exists for the testing of the presence of drugs; it has to be done through blood analysis.

The national criminal justice section does not support lowering the current test for the blood alcohol level from .08. In our experience, evidence to the contrary will more readily overcome evidence of the offence at reduced levels. More charges would be laid and then dismissed or result in acquittals. This would only further cause delays in the justice system without accomplishing the desired objective.

Instead of lowering the limit, it may be wiser to establish an administrative procedure to permit those who blow over .05 to have their licence temporarily suspended by police at the roadside, possibly for 48 to 72 hours, rather than making it a Criminal Code offence. This could equally apply to those who refuse to comply with roadside sobriety tests or to persons who refuse to respond to questions relative to their state of sobriety.

Once bodily substances have been lawfully obtained, the police should be authorized to use those substances for any testing related to status or condition. However, we do not support automatic testing of all those persons involved in serious accidents. Automatically testing in such situations could complicate obtaining emergency medical treatment as well as violate the presumption of innocence.

While it may be offensive to authorize police to compel production of bodily substances after serious accidents, consideration should be given to some method of authorizing police agencies to gain access to existing records in those circumstances. It should be noted that some police forces do exercise this by execution of search warrant on hospital records of persons who they believe may have had alcohol in their system at the time of the offence.

Looking at the issue of whether or not all impaired drivers should have mandatory assessments, we believe this would consume inordinate resources and be unworkable. We do strongly support, however, that resources should be made available for a court to order an assessment for repeat offenders or those with apparent alcohol problems. Also, an assessment should be required for those convicted of the more aggravated forms of impaired driving. What we mean by that is impaired driving causing death and criminal negligence causing death or bodily harm.

The penalty section for impaired driving should be amended to allow greater flexibility in sentencing so that the punishment can be more aptly tailored to the crime. We've indicated in our submission that there should be greater flexibility perhaps in tailoring the prohibitions.

We've given the example that in the province of Quebec, devices can be fitted to a vehicle, following the expiration of the three-month prohibition, that allow a person to start their vehicle only if a zero reading is obtained in the device. I understand this ignition interlock device is also used in Alberta, and it can follow the court-ordered prohibition.

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Unfortunately, use of this device is not uniform across the country, and the cost of rental, installation, and monthly calibration may put it beyond the reach of many persons. Creative measures such as this should be utilized, as they could prevent persons from losing their livelihood as a result of driving prohibitions in the, as we say, relatively less serious cases.

If somebody blows .089 and no accident was involved—it was a RIDE stop—the one-year licence prohibition usually imposed can be extremely prohibitive and cause them to lose their livelihood. A three-month prohibition is recognized in the Criminal Code as appropriate, and thereafter some of these creative measures can be used, which will allow the person to drive but will also protect the public by ensuring that the person can only drive with zero alcohol in their system.

There don't need to be graduated penalties, because those already exist. The courts, in determining the appropriate fines, for example, usually impose these to reflect the blood alcohol content of the particular offender, bearing in mind other circumstances of the case and the ability to pay. Codified graduated penalties dependent upon blood alcohol content would be difficult to apply, as other factors, such as physical symptoms and the degree of harm caused, would also be relevant.

Fairness requires that courts continue to have the flexibility to impose a sentence that reflects all the facts and background of the accused. Blood alcohol content in .08 cases and the degree of alcohol-related symptoms in impaired driving cases will continue to have an impact as significant factors in sentencing. I have never heard of a court that does not impose an increased penalty for a person who has a reading of .90 versus .25. The higher the alcohol content, the more severe the symptoms, the higher the penalty.

If the goal of impaired driving legislation is to protect the public and to ensure road safety, then money is more productively spent on rehabilitation and education than on putting people in jail. We note that public awareness about the consequences of drinking and driving has increased, and Statistics Canada figures show that charges for impaired driving are steadily and significantly decreasing.

The curative discharge provisions of the Criminal Code should be uniformly available in all provinces as a means of assisting persons with alcohol problems. This section could also be examined with a view to expanding it to allow the courts to impose additional penalties.

It should be noted that the curative discharge section of the Criminal Code works much like a conditional discharge in that the person does not obtain a criminal record, but it does allow the court to impose up to three years of probation with sometimes very strict conditions, usually mandatory alcohol treatment as well as driving restrictions and other things. It just means they do not have a criminal record.

We also note the incongruity in the curative discharge provisions, which permit a discharge if treatment is required. Therefore an alcoholic can benefit from the section, whereas a first-time offender without an alcohol problem who commits an isolated offence in particular circumstances may not. That is something that can be addressed when examining this section of the code.

There is not enough in the Criminal Code pertaining to the treatment and rehabilitation of impaired drivers. We all recognize the devastating consequences to the victims' families. It is fair to say that impaired driving causing death or serious bodily harm is generally a significant event in the life of the offender as well and something that will be with that individual for life. A commitment to undergo serious treatment should be a mitigating factor in sentencing.

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Unlike with most other crimes, a substance abuse problem is usually underlying these offences. While a lenient disposition may be inappropriate, repeat offenders should not be disqualified from benefiting from treatment while still receiving an otherwise fit and proper sentence. In addition, the court should be authorized to compel treatment in appropriate cases. As I've indicated, the current Criminal Code provisions that allow judges to impose probation attached to any of the current penalties allow that to occur.

Looking at the jurisdiction of the courts, provincial courts should not have absolute jurisdiction over impaired driving offences. If the Crown must make a case for impaired driving causing death or some of the other serious offences that we've made reference to, very serious penalties can result, sometimes—and often, of late—penitentiary terms for impaired driving causing death or bodily harm.

As a result, the accused should have the right to a preliminary inquiry to fully explore the evidence, and if desired, the right to a jury trial. It should be noted, though, that in excess of 90% of all cases of impaired driving are currently handled in the provincial court system, so no amendment is required.

Those are our views on the issues you've raised for consideration. I'm happy to answer any questions you may have.

The Chair: Thank you very much.

Mr. Harris.

Mr. Dick Harris: Thank you, Mr. Chairman.

Thanks for your presentation. I wanted to ask your opinion on something. By the time someone reaches the age of 16, or for that matter any other age, and obtains a driver's licence, do you think there's any possible way that a person seeking a driver's licence could honestly not know it is a serious offence to drive when you've been drinking? Do you think there's a remote possibility that someone could not know that?

Ms. Heather Perkins-McVey: I would think all persons are aware of it. The current public education in the schools certainly makes it very clear that it's a very serious offence and that it should not be done.

Also it's my understanding that in most of the provinces, at least I know in Ontario, in their licensing requirements, they ensure that for young persons who obtain their licence, it's a graduated licence and it's a zero tolerance for alcohol. So they do not have the benefit of these provisions of the Criminal Code. If they are found with any alcohol in their system, their licence is automatically suspended for a three-month period of time.

Mr. Dick Harris: I think we could all agree that there's probably not a person driving in Canada who doesn't know that driving while drinking is a very serious offence and they simply shouldn't be doing it. Given that, I wonder why we sometimes hear testimony that....

You've indicated a couple of points in your testimony that cause me to wonder why we do these things. One of them was that mandatory testing would be too intrusive to someone. I'm not a lawyer, so maybe you can help me with this. For example, if a police officer suspects that someone may be carrying a concealed weapon on the street, does the officer have the right to stop and search that person?

Ms. Heather Perkins-McVey: Well, you say if they “suspect” they have a weapon. You use the word “suspect”.

Mr. Dick Harris: Yes.

Ms. Heather Perkins-McVey: If they have reasonable, probable grounds to believe they're carrying a weapon or have committed an offence or are about to commit an offence, they have the right to stop them and ask them for identification, and if necessary, if the grounds exist, they do have the right to search.

Mr. Dick Harris: They could search, okay. Therefore it seems to me that if a police officer had reasonable grounds to assume that someone was drinking, then there should be no barriers whatsoever to that officer requesting a roadside test.

Ms. Heather Perkins-McVey: There aren't.

Mr. Dick Harris: There aren't?

Ms. Heather Perkins-McVey: If they reasonably suspect that there's alcohol in their system or that the person may have been drinking, they have the right to not only request a roadside; they can take it a step further and require a breathalyser.

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Mr. Dick Harris: Right, but what happens now, as we've heard in testimony, is once that....

Let's say the person who was tested in fact was over the limit and that case goes to court. Here seems to be where the problem starts. The courts tend to put a magnitude of responsibility onto the police officer and onto the Crown to prove that the officer had reasonable and justifiable grounds to request that, no matter what the test results were. Even if the test results were 2.0, we have heard testimony from crown prosecutors that case after case has been thrown out because the officer forgot one word in his testimony or didn't do this proper step or forgot to make a notation.

The results of the test seem to become so irrelevant once it gets to the court, as the court tends to accept the testimony of the accused over the Crown. What can we do to fix that? How can we fix that?

Defence lawyers of course don't want that fixed, because they make a really good living from this, but we're interested in saving lives and preventing injuries.

Ms. Heather Perkins-McVey: One of the phrases you've used that concerns me is that you've generalized “the courts”. We can all pick out specific cases where mistakes have been made, but I don't believe we can generalize the courts in that way.

From my perspective—and I should tell you I am a defence lawyer—I do not see that the courts are throwing out cases because somebody has missed a word or otherwise. They generally are not doing so unless there has been a serious violation of the accused's rights that cannot be saved, such a violation that would bring the administration of justice into disrepute.

Mr. Dick Harris: With all due respect, we had a crown prosecutor here before us last week who said that rather than this being an occasional happening, this appears to be the norm in the cases he tries to prosecute.

Ms. Heather Perkins-McVey: I would like to see the statistics on that, but I certainly don't believe that is the case. The current Criminal Code provisions certainly allow....

We train our police forces, and I think they are far more conscious of the steps that have to be taken. They all have very strict checklists that have to be used to ensure that all of the steps are taken, the devices are properly calibrated, and they're set up in the appropriate timeframe.

I don't believe those barriers are there. The current provisions give us the tools we need to ensure the enforcement of the law.

Mr. Dick Harris: You said earlier that you feel that the sentences for convictions, particularly for causing serious bodily injury or death by impaired driving, are in most cases appropriate. The latitude, as I understand it, is from zero to 14 years for impaired driving causing death.

While it is true that in some cases—fewer than I would like—we are seeing sentences of six to eight years in prison, in the majority of the cases, you have to admit, the sentences run at the very lower end of the scale. So I think your statement is inaccurate. Most of the sentences statistically run from zero to four years.

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As for an appropriate sentence, here's one case. A five-time-convicted impaired driver whose licence has been under suspension three times runs a red light at a high rate of speed and kills a father and two children. His sentence was two and a half years. Do you feel that was appropriate, or that there's any appropriateness present in a sentence such as that?

Ms. Heather Perkins-McVey: Well, I haven't been appointed to the bench and I didn't have the sentencing material in front of me that would assist me to properly balance and evaluate the competing issues and concerns, but I can tell you, I don't know if you've been inside a penitentiary, but even a two-and-a-half-year sentence for somebody would be a significant one and a deterrent one. If you spent a day and an overnight in Millhaven Institution, that would probably be enough to deter anybody for the rest of their lives.

Mr. Dick Harris: But it's not deterring people. There are still 1,400 people killed every year by drunk drivers, by repeat-offending drunk drivers.

Ms. Heather Perkins-McVey: We also have to look back and see whether or not there are any statistics that really show that incarceration is truly a deterrent. That's not an issue specifically to this case, but it's an issue in terms of Criminal Code enforcement generally.

Mr. Dick Harris: How about if along with the sentence—first of all, an appropriate sentence, but along with that sentence—mandatory rehabilitation and successful completion were necessary before any consideration of parole?

Ms. Heather Perkins-McVey: There's nothing wrong with that point of view. The difficulty is that the resources currently utilized in the correctional system do not allow for that type of intensive program.

Some of the most successful programs, to my knowledge, are ones operated in the community by persons who are most affected by the offence. There's a program operated in Ottawa called the RIDO program, Reduce Impaired Driving Ontario, and they constantly show films about the devastating effects of drinking and driving. It's a very strong educational program.

That kind of program has been said to have much more successful results than some of the programming that's been done to date through the Alcoholics Anonymous program, which is done in the penitentiaries, as well as the general treatment programs currently offered in jails.

The jails do not have that kind of rehabilitation program. It's assumed that when a person goes to jail, they are not consuming alcohol.

The Chair: Thank you, Ms. Perkins-McVey.

Mr. Brien.

[Translation]

Mr. Pierre Brien (Témiscamingue, BQ): You don't seem very much in favour of extending the two-hour time limit that is currently allowed for testing. A test administered more than two hours after the fact is admissible as evidence, but the Crown then has an additional burden of proof because it must have an expert testify. It is clearly easier to raise doubts about the validity of such a test than in the case where the sample was taken within a two-hour period. Several stakeholders have asked us to change this to three hours, for example, but you don't seem to support that and I would like to know why.

[English]

Ms. Heather Perkins-McVey: I should explain that I'm not a scientist. I'm not an alcohol expert or a toxicologist.

It's my understanding from seminars I have attended that the way the test calibrates consumption of alcohol, the two-hour presumption allows for the elimination process. It allows for the accuracy of that, given biological rates of elimination. Outside the two-hour time limit, if you were to take a test three hours after the time limit, rates of elimination are such that it would not be a reliable indicator of what the blood alcohol was at the time of driving, which is when the offence occurred.

[Translation]

Mr. Pierre Brien: I'm not a scientific expert either, but if I understand correctly, it would only work in favour of the person charged. If, three hours after the accident, the person's rate is still above the limit, it's very likely that at the time of the accident or arrest, the rate was even higher. Therefore, this would not necessarily work against the person charged.

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[English]

Ms. Heather Perkins-McVey: That's not the case. Generally it depends on the time of drinking, the time of driving, the time of the last drink, and what the last drink was. Those are all factors that have to be taken into account.

Obviously if that's an area of concern for you, you should be speaking to the toxicologists who deal with these issues. That's my understanding of the evidence I've heard in cases before the courts.

[Translation]

Mr. Pierre Brien: If those people told us that this test would still have some scientific value if the period was extended, you would not be as opposed to it.

[English]

Ms. Heather Perkins-McVey: I wouldn't be as opposed, no. We would have to see the data before we would consider changing our position.

[Translation]

Mr. Pierre Brien: Another concern that I have is with the penalties imposed for impaired driving offences causing death or bodily harm. The Criminal Code contains very severe penalties for this: up to 10 or 14 years of imprisonment. As for hit-and-run, it is punishable by a maximum term of four years. We are seeing more and more hit-and-run offences causing bodily harm or death. There have been a few very well-known cases in Quebec in the last two years.

Isn't there a problem here with the discrepancy between the sentences, with the lawmaker sending the wrong signal? The lawmaker is saying that, in the end, the offence of hit-and-run is much less serious than the offence of impaired driving causing death or bodily harm. There's a wide gap between the maximum sentences. I can't put myself in the judge's shoes, but it seems to me that a much less severe penalty is imposed in the case of hit-and-run offences.

[English]

Ms. Heather Perkins-McVey: I'm not familiar with a section of the Criminal Code called “hit and run”. Are you talking about failing to remain at the scene of an accident?

Mr. Pierre Brien: Yes.

Ms. Heather Perkins-McVey: Usually it comes down to how the police choose to charge a person. Hit and run is usually charged in addition to other offences. If somebody has been killed as a result of that type of accident, usually a charge of criminal negligence is laid. That will take into account the increased penalties and the concerns.

[Translation]

Mr. Pierre Brien: I am familiar with two cases in particular. Impaired driving is very difficult to prove because you have to report what the person did in the previous 24 hours. What did he or she consume, were there any witnesses, etc.? In most cases, the charges of impaired driving causing injury are dropped and only the charge of failing to remain at the scene of an accident is kept. Moreover, bargaining takes place. The charges of impaired driving are dropped and the accused pleads guilty to failing to remain at the scene. In my view there's a problem, there seems to be an incentive for leaving the scene of the accident, which goes against the intentions of society, because of the differences in the sentences and the difficulty in proving impaired driving when the person has left the scene of an accident.

[English]

Ms. Heather Perkins-McVey: It still comes down to the fact that you have to be able to properly prove the case before the court. The fact that a plea bargain is involved raises all sorts of other issues that we're not here to address today.

Clearly if the evidence was there in the circumstances you raised—if there were witnesses and if the police had done an investigation job that allowed the prosecution to proceed with that offence—then the person would have been convicted. We still have to have proper safeguards to ensure the evidence exists. We can't presume people to have been impaired.

In the circumstances, you have to leave it to the judiciary if the other charges cannot be proved. Perhaps it's more expedient that in the case you raised, a plea was obtained for some offence. It may have been that all of the charges would have been thrown out. A balance has to be reached between the procedural safeguards and the evidence. There has to be evidence in order for a person to be convicted.

[Translation]

Mr. Pierre Brien: If you leave the scene of an accident, it becomes impossible to prove subsequently that you were drinking before or after the accident. Such proof is, for all practical purposes, impossible to establish in reality.

• 1035

The Crown attorneys to whom I've spoken have all told me that this is impossible to prove in practice. Even if you're able to demonstrate that the person was drinking in a bar, it's extremely difficult. This means that the wrong signal is sent, because the punishment for hit-and-run is much more lenient in provincial legislation, the provisions of the Highway Code and so on, the offence of hit-and-run is punished as severely as impaired driving, but in the Criminal Code it is a much less serious offence. I was wondering if you saw that as a problem. You're telling me that it's up to the police to prove that the person was drinking, but that's very difficult to do in real life. The person just has to take off. He or she may have been drinking at home afterwards, and you can't have him or her take the screening test. You cannot easily go back and see what this person had done in the last 24 hours to prove that he or she had a blood alcohol level above the average. This is a problem, I think. Our opinions obviously differ on this point.

[English]

Ms. Heather Perkins-McVey: Well, if you have evidence of impaired driving, that will be charged and that will be litigated. If there isn't evidence of drinking, then the only issue before the court will be whether the person remained at the accident.

Given the facts of that type of situation, in all likelihood the current penalty provision is going to be a severe deterrent. A four-year sentence of incarceration is a significant one.

The Chair: Thank you.

Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

I want to thank you both for your testimony and appearance here today. My first question is to Ms. Perkins-McVey.

I take it from the tone of your remarks that you see the need for a greater emphasis on apprehension as opposed to the after-the-fact court procedure that comes into play.

Ms. Heather Perkins-McVey: Clearly we all believe that we have to protect the public and that our roads should be safe. What comes into play to do that is a process that involves public education, rehabilitating those persons who have serious substance abuse problems, and taking away their licences.

We've indicated that for repeat offenders, there should be consideration for greater prohibitions if the circumstances warrant it and if studies do properly reflect that it is a deterrent issue.

We believe there should be protection of the public and safety. The question is, how do we best do that? Statistics do not bear out that incarceration is necessarily the answer.

Mr. Peter MacKay: To that end, would you agree that there is obviously an interest in ensuring that in particular repeat offenders receive greater sanctions?

Mr. Heather Perkins-McVey: We've addressed the fact that for repeat offenders, not only should there be consideration of greater prohibitions, but also the treatment issue should be addressed, because repeat offenders, no matter how long the sentence, will be released from custody.

What we should be doing is actually working to rehabilitate and treat those substance abusers so that when they are released from custody, if that's part of the sentence that's imposed, in fact they are not the menace they were to the roads in the past. Part of that comes with education. Part of that comes with imposing probationary terms with treatment components.

That power currently exists in the Criminal Code, and there are many judges who do impose probation on top of fines. So the power currently exists. If the circumstances warrant it, clearly that should be part of the sentence.

Mr. Peter MacKay: The power currently exists, and that's where some of the public outcry and even the frustration on the part of police and crown prosecutors arises. There appears to be a fair level of inconsistency in the application of the sanctions, the sentences.

• 1040

And there appears to be on occasion an example that is perhaps overemphasized. In your practice, I'm sure you have seen cases with specific circumstances that aren't always made known when the newspaper story comes out, and they seem to offend public sensibility.

So would you agree that generally there may be some need for greater definition of the application of the sentencing options that currently exist in the Criminal Code? I guess what I'm getting down to is mandatory minimum sentencing.

Ms. Heather Perkins-McVey: Well, we already have minimum sentencing.

Mr. Peter MacKay: Not really.

Ms. Heather Perkins-McVey: We do. We have—

Mr. Peter MacKay: We have a $500 fine minimum sentence for impaired driving—

Ms. Heather Perkins-McVey: For a first offender.

Mr. Peter MacKay: —and then there's a graduated proceeding by second conviction provisions that attach. But should we be upping those? I guess that's what I'm suggesting.

Ms. Heather Perkins-McVey: It's our position that the current minimum sentences are adequate and that they do give the courts the discretion, when the circumstances warrant it, to impose much greater penalties as the specific cases warrant. So if you have a situation where there's been an accident, I can tell you the first thing you're going to tell a client and the first thing the Crown is going to ask for is incarceration as an issue.

In addition to that, the prohibition in the Criminal Code is a minimum prohibition. So if the circumstances warrant it, a judge can impose a much more lengthy prohibition and as well, as part of a probationary term, can ensure that they attend programs such as the RIDO program and that they get treatment and assessment for alcohol. All of those powers exist and are well known to the courts.

If it needs to be set out that you can do X, Y, and Z.... I don't think it's necessary. Training of judges is something we can perhaps focus on, but the current provisions are more than adequate to allow that degree of focus and flexibility.

Mr. Peter MacKay: They're more than adequate if the discretion is exercised.

Ms. Heather Perkins-McVey: The thing is, in sentencing, you have to try to have provisions that allow for sanction of the least serious types of offences. As I said, in the example where no bad driving is noticed, they're stopped as part of a RIDE program, and the reading is .089, there has to be some flexibility to allow the courts to take into account what we would classify as one of the less serious types of offences, as opposed to those where the public is put at risk through erratic driving behaviour and cases where there's an accident, death, or bodily harm.

Mr. Peter MacKay: But you see, this is the dilemma we're faced with. Even with the introduction of tougher sanctions that we have seen and with the introduction of a greater emphasis in the public on education, a raised awareness with groups such as MADD.... The Brewers' Association has taken an interest, as have automobile associations, and we've seen witnesses from those various groups. It is happening.

Yet, as you're aware, there still appear to be a shocking number of people who will take the risk. That leads me to believe we don't have the option of leaving the code sections as they are. That's not an option for us. We're going to have to do something.

To that end, I'll ask you a couple of more specific questions. You would be aware that sometime in the early 1980s, the courts struck down the ability of a police officer to make demand for roadside sobriety tests and have those observations admitted in court. What do you think would be the implications of returning to that legislated ability of a police officer to make a sobriety demand upon pain of refusal?

Ms. Heather Perkins-McVey: Well, I guess we're talking about something very technical now. Are you talking about an officer who has suspicion?

Mr. Peter MacKay: I'm talking about reasonable, probable grounds to say, “Step from the vehicle. Walk the line. Hand to nose.” You can ask them, but they can refuse to do that, with no sanction.

Ms. Heather Perkins-McVey: That's correct, and if they have reasonable, probable grounds, as you've indicated, then they proceed to the breathalyser.

Mr. Peter MacKay: But wouldn't it streamline the ability of the officer to make that judgment call at the scene? Do we need to go to a breathalyser?

Ms. Heather Perkins-McVey: You can't simply convict someone on the basis of reasonable and probable grounds of testing. Whether or not a person is coordinated, whether or not they can walk a line, is often based on very different factors. If you've had knee surgery the week before, you're not going to walk the line in the same way as somebody who hasn't.

• 1045

Mr. Peter MacKay: Surely that's going to come out in court, though. What I'm saying is get greater evidence before the court, upon which a police officer then wouldn't experience the same degree of frustration at having that evidence excluded.

Ms. Heather Perkins-McVey: The problem is that the evidence isn't universally excluded. Evidence of sobriety testing at the time of breathalyser is always submitted.

Mr. Peter MacKay: It's submitted in a very crafty way, though. It's used for the purpose of determining whether they should indeed have called for a breathalyser. It's not admissible as proof of intoxication.

Ms. Heather Perkins-McVey: I would disagree with you on that. The way the sobriety testing is used, it's conducted by the breathalyser technician, and it's used to in effect buttress the readings that are obtained to show the validity of them. As well, it's often used to extrapolate back to justify the observations of the officer at the scene. So I disagree with your comment.

The Chair: Thank you, Mr. MacKay.

Mr. Saada.

Mr. Jacques Saada: Thank you very much for your presentation.

You know the ad on TV about the shampoo that says you have only one opportunity to make a first impression? One of the witnesses, I think it was Professor Solomon, came here and said to us that first offenders do not have fingerprinting, and therefore they can be first offenders a number of times. Could you confirm that, please?

Ms. Heather Perkins-McVey: That's not the case. The Identification of Criminals Act is such that persons who are first-time offenders are fingerprinted and photographed. They are.

Mr. Jacques Saada: Okay, so I misunderstood.

Ms. Heather Perkins-McVey: Yes.

Mr. Jacques Saada: Good.

[Translation]

That is interesting, because we don't have any answer for the moment and everyone is waiting for answers to that.

You referred to drug impairment as opposed to alcohol impairment. You said that something should be done about that, but no one to date has told us what to do. Everyone tells us that we should be doing things, but no one is making really concrete recommendations about it. One of my many concerns is that the impairment effect ends before the substance is eliminated from the body. In other words, someone may very well have traces of a drug in his or her body a month after taking it, but there is no impairment at that point.

I am concerned because I am not seeing any concrete recommendations, unless I misunderstood what the witnesses have told us. I am not seeing any concrete recommendation for dealing with this problem. Of course, it brings up the question of how intrusive evidence-collecting methods can be under the Charter.

Could you elaborate on that?

[English]

Ms. Heather Perkins-McVey: I can indicate that we have not addressed it as an executive, in terms of coming up with a concrete proposal. I can indicate from my own personal perspective that, looking at section 258 of the Criminal Code, the kind of thing you'd be looking at would be if an officer has reasonable and probable grounds to believe the person is impaired, not by alcohol but by drugs, because of their behaviour, their attitude, or whatever symptomology they observe, they would have the right to make a demand for a blood sample.

Then the safeguards set out in the Criminal Code—that the sample is taken by a proper technician who has the authority to take it, that the ampoules are in sealed containers, that the proper evidentiary issues are maintained in terms of continuity of the sample and the right to independently test the sample—those are the kinds of things that could be used to ensure not only that there's an appropriate analysis but also that there's a safeguard for the accused.

The difficulty is—and this is where the scientific aspect that you raise comes into play—with the presence of a drug that is consumed.... I think we had an Olympic athlete who claimed to have been at a party where marijuana was consumed a month earlier, and yet they tested positive at the time of the Olympics. I'm not a scientist, so I can't begin to indicate how we would explain that and what the scientific data is. I would assume you'd have different levels of concentration if there were consumption of a drug or impairment by a drug at the time of the commission of the offence versus a month later.

• 1050

I can't point to the specifics except to indicate that section 258 could be examined with a view to formulating it such that if there are grounds to believe the person is impaired by a drug alone, then you have the right to take the blood sample and take the steps thereafter that are already set out for the taking of blood samples.

[Translation]

Mr. Jacques Saada: I have a follow-up question on the same topic. If someone has consumed alcohol or drugs but is within the legal limits, he or she is absolved of any responsibility, since the two tests are separate, but the combination of the two should have been sufficient for charges to be laid. What do we do about that?

[English]

Ms. Heather Perkins-McVey: The current section, section 258, allows for a sample of blood to be taken for testing for drugs if an appropriate demand has been made under section 254. So if the person had consumed alcohol and if the officer had reasonable and probable grounds to believe the person was impaired by alcohol and drugs, section 258 would kick in to allow an analysis to be done.

What would occur is the person would be found guilty of impaired driving—impairment by drug and alcohol, as opposed to driving in excess of .08. So the section on impaired driving, which has the same penalty component as the .08, would kick in to allow—

Mr. Jacques Saada: So what you are saying in fact is that indeed at the present time we have what it takes in the code to deal with this.

Ms. Heather Perkins-McVey: For that combined section, yes, but not to address the situation where no alcohol is present.

Part of the problem is that the current sections of the code have been designed to focus on reading of alcohol by a quick and easy method, either the intoxilyser or the breathalyser or the roadside screening device. As I said, we don't have that quick and easy method to evaluate drugs.

[Translation]

Mr. Jacques Saada: Before moving to my next question, I would like to correct something or ask my colleague, Mr. Harris, a question.

[English]

Mr. Harris, you said in one of your statements that 1,400 people were killed on the roads in one year, and you stated that it was because of repeat offenders. Do you have any statistics to demonstrate that? Because my understanding is that they were responsible for a substantial part of it, but not for all of it.

Mr. Dick Harris: Probably what I meant was a large majority of those are repeat offenders.

Mr. Jacques Saada: Okay, thanks.

If I have time, I'll come back later. Thank you.

The Chair: Mr. Harris, round two, for three minutes.

Mr. Dick Harris: The other day during testimony, a suggestion was made concerning allowing police officers to request breathalyser or sobriety tests. Should the act of getting a driver's licence demonstrate implied consent for future random drug and alcohol testing? I just wanted to get your opinion on that.

I know you talked about the intrusiveness, but it was suggested that this might cut out a lot of the question. If you apply for your licence and you're given it, you're giving your consent; you're saying you intend to drive within the law in every respect and you give consent to be tested for drug or alcohol impairment throughout your driving career. What do you think about that suggestion?

Ms. Heather Perkins-McVey: Current case law does allow for police to stop drivers randomly to check their identification to ensure that they're driving with a valid driver's licence, and usually in the course of that investigation, if they have a suspicion that the person has consumed alcohol, then they can take whatever steps are necessary to get a roadside screening device or to proceed thereafter with a breathalyser demand.

• 1055

Clearly that is a matter for the provinces in the providing of driver's licences, and it is something that has been utilized in the province of Ontario in the graduated licence system.

Mr. Dick Harris: The phrase I was looking for earlier—and this was given to us by a crown prosecutor—was that the immense frustration amongst police officers out there in regard to getting impaired driving charges to stick is that judges tend not to accept the evidence of the police officer but tend rather to place a greater emphasis on the evidence of the accused and the evidence presented by the defence lawyers. Our witness said this is the norm, not the exception, in court. How do you feel about that statement?

Ms. Heather Perkins-McVey: I can indicate that in preparation for coming before you today, over the last couple of weeks I have randomly asked crown attorneys and police officers for their views on the subject, and their view was not that there needed to be significant changes. I showed them some of the views we had come up with, and universally they did not have that strong view of the circumstances.

Mr. Dick Harris: I find that astonishing, because we've had before us the RCMP, the Canadian Police Association, the police chiefs, and crown attorneys, and in every testimony, that was a major point. They are absolutely frustrated with the way the court deals with evidence that's presented in an impaired driving charge. So I find that statement astonishing.

Ms. Heather Perkins-McVey: Maybe the difficulty is in the training of the police officers. Universally, that didn't seem to be a problem. I'm not saying police officers don't have to be very cautious in ensuring that they deal with all the various criteria set out in section 254, but generally I think that is done.

The Chair: Thank you, Mr. Harris.

Mr. DeVillers.

Mr. Paul DeVillers: Thank you, Mr. Chair.

In Mr. MacKay's questioning, you touched a little bit on the issue of minimum sentencing. We've had evidence from other witnesses that there's a concern that the evolution of significant minimum sentences might lead to fewer convictions, because of a reluctance of some judges to convict when they feel sentencing discretion is being imposed upon them. I wonder if you would care to comment on that concept.

Ms. Heather Perkins-McVey: The punishment has to fit the crime. The days of Jean Valjean in Les Misérables being sentenced to 25 years of digging rocks for stealing a loaf of bread....

We have to have faith in our judiciary. We appoint them because they have experience and because they are trained to assess the circumstances. The minimum punishments that we have set out allow a judge the discretion to impose, as we've indicated, much more serious penalties when the circumstances warrant it.

Our court system is one where both sides have an opportunity to speak and it's determined by the judge as the final arbiter. Where circumstances warrant it, crown attorneys are very forcefully bringing forth victim impact statements. That has now been allowed in the Criminal Code. They are bringing forth the evidence required to convince a judge to impose more serious penalties when the circumstances warrant it.

However, when you have, as I've said, the example where there's no bad driving but the person has, for one reason or another, blown over the .08 limit, the question is, should that person suffer from the most serious penalty? We have to allow that sort of discretion in sentencing to exist.

Mr. Paul DeVillers: The other witnesses—and there were several of them—have portrayed defence counsel as the people who are contributing to any difficulties that may be perceived with our impaired driving legislation.

I congratulate Mr. Harris, because he didn't use the buzz word “cash cow” that's going around.

Mr. Dick Harris: I got you to use it, though.

Mr. Paul DeVillers: And I congratulate Mr. MacKay, because he didn't refer to “charter constipation”.

• 1100

Professor Solomon is the law professor who was here with MADD. He also made the comment that some of the technical defences being used by defence counsel are a difficulty MADD has with our legislation currently. But if I understand, particularly the over .08 is a technical offence.

Ms. Heather Perkins-McVey: It's a very technical offence.

Mr. Paul DeVillers: I'd just like your comments on these allegations that defence counsel are using technical defences, and on the role of defence counsel in the entire process.

Ms. Heather Perkins-McVey: As I indicated, I am a defence counsel. From a defence perspective, the view of the emerging case law from the courts of appeal across the country is that the technical defences are being taken away. The trend is clearly that the courts are not strictly adhering to some of the words that were previously....

For example, previously, if a roadside device was brought to the scene 10 minutes after the stop, you could make the argument that it was not proper, that it should be excluded. Courts of appeal have now said, “No, if they can justify how long it takes and if they have a reasonable explanation as to where the machine was, we'll let it in.”

From the defence perspective, more and more, the courts are bending over backwards to ensure that all of the evidence gets before the court and that a court can properly assess whether or not the offence took place.

The charge of .08 is a technical charge in that it involves a machine, there's a scientific background, and the machine is to read certain things with certain time requirements between intervals of testing, and that's because of the machine's frailties and capabilities. So that it can get accurate readings, you want to ensure that they're relatively closely spaced together. That's what the code sets out.

One thing to bear in mind is that very often there are circumstances where a person can be acquitted of .08 but convicted of impaired driving, because the nature of the driving was such that there is evidence of alcohol in the system and driving that was dangerous. So the fact that you may do your a client a favour by winning on the .08 doesn't mean you're going to necessarily ensure an acquittal. Quite often the impaired driving charge is the more difficult one to deal with.

The trend in the courts is not towards reliance on the technical defences.

The Chair: Thank you.

Peter Mackay.

Mr. Peter MacKay: Thank you, Mr. Chair.

I think you're right. I think there has been a swing, particularly to close some of those loopholes, and I think the science has impacted on that too, the improvement of the devices.

Ms. Heather Perkins-McVey: The intoxilyser machine has certainly been found to be accurate. It's very precise and scientific. I don't know if you've seen what one looks like, but the reports that come out of an intoxilyser machine are very clear, there's no issue, there's no interpretation involved, and the science is very good.

I think they are getting greater pleas of guilty, quite frankly, from use of the intoxilyser machine. The Borkenstein was a relatively new machine that was developed over time, and it had certain frailties and difficulties. The intoxilyser doesn't seem to have the same problems.

Mr. Peter MacKay: The problem still arises for some police officers in the completion and the number of forms and the bureaucracy that's involved in completing all of this. Ontario has made strides towards streamlining that process of processing an accused person.

Ms. Heather Perkins-McVey: Police don't have to fill out the reports within two hours.

Mr. Peter MacKay: No, that's true.

Ms. Heather Perkins-McVey: They can fill the reports out at their leisure. They can fill the reports out two days later if that's what time allows. It's simply the arrest and the observations that they have to make within a certain time.

Mr. Peter MacKay: True enough.

You made a comment in response to a question by Mr. Saada about fingerprinting and photographing drivers. My experience, as a crown and a defence lawyer, was that didn't happen unless there was an accident or there was an indictable proceeding. Unless it's done differently in the province of Ontario, I'd be very surprised if most impaired drivers were actually photographed and fingerprinted.

Ms. Heather Perkins-McVey: Well, I can only speak from my personal experience in this jurisdiction, and photographs and fingerprints are taken.

Mr. Peter MacKay: Always?

• 1105

Ms. Heather Perkins-McVey: I can't speak to the word “always”, but I can tell you that as a matter of course, if a client requests it, I will ask whether or not those photographs and fingerprints were taken, and they generally are.

Mr. Peter MacKay: Can I ask you how many criminal impaired driving cases you have defended?

Ms. Heather Perkins-McVey: In my 11 years of practice?

Mr. Peter MacKay: Yes.

An hon. member: 9,000.

Mr. Peter MacKay: There's a lot, I realize.

Ms. Heather Perkins-McVey: I can indicate that I don't have a practice that focuses on impaired driving.

Mr. Peter MacKay: Just in the last year.

Ms. Heather Perkins-McVey: Probably in the last year I would have done 100 or fewer.

Mr. Peter MacKay: And in those cases, you're saying the majority were photographed and fingerprinted?

Ms. Heather Perkins-McVey: It's my recollection, yes, that they are photographed and fingerprinted. When I look at the promise to appear, most often at the promise to appear, with or without an undertaking that a client has, the portion for fingerprint says, “Done at the station”.

Mr. Peter MacKay: Okay.

Ms. Heather Perkins-McVey: Apart from the photographs and fingerprints, the most important thing is that, regardless of photographs and fingerprints, the CPIC entry will be made to ensure that there's an entry of the fact that the person was charged.

Mr. Peter MacKay: That was my next point. I've seen numerous situations where a person had been done for impaired driving in Winnipeg and picked up in New Brunswick and it didn't show. I don't put that on.... A computer system is only as good as the person entering the data, but I find that's still a huge problem in this country, and I think it has more to do with the volume of impaired drivers out there and the number of police officers. Perhaps there's a delay in getting that information onto the system. CPIC itself, I understand, is literally on the verge of collapse.

Ms. Heather Perkins-McVey: I would say that whether or not the entry is made in CPIC is not focused on impaired driving. It's a situation where obviously more people need to be available to enter the data. I'm not denying the fact that you often see omissions in those CPIC entries, but the current CPIC type of system allows for those persons who have been charged to be known to anybody who picks them up or deals with them.

Mr. Peter MacKay: But you would know, as a defence counsel, that it's very advantageous to get in there and plead your client at the first instance, and if the Crown hasn't done the search and doesn't have that CPIC reading, they're going to be treated as a first-time offender. That happens a lot.

Ms. Heather Perkins-McVey: Obviously it would be advantageous if I were to take that tack.

Mr. Peter MacKay: Thank you, Chair.

The Chair: Thank you, Mr. MacKay.

Mr. Saada.

Mr. Jacques Saada: This is a very long shot, but I want to ask a question of philosophy.

A person who has AIDS and who deliberately enters into a sexual relationship or intercourse without any protection is viewed as having willingly taken the chance of committing a crime. I'm not using the proper words, but that's what it amounts to. A repeat offender who is an alcoholic and gets behind the wheel.... Do you see any parallel to be drawn between the two cases?

Ms. Heather Perkins-McVey: ...who gets behind the wheel while consuming alcohol?

Mr. Jacques Saada: Well, the details could be worked out. It's an important detail, I concede, but my question is more on the principle of, not the crime being committed, but taking the chance of committing a crime.

Ms. Heather Perkins-McVey: The issue, though, is driving while under the influence of alcohol. Our current system allows for people who are not under the influence. We can presume they are driving in as safe a manner as instruction and highway traffic legislation provide.

The fact that these people are at risk because of their alcoholism is one of the reasons there has to be a focus on rehabilitation and on treatment. From my personal perspective, I can see that some of the suggestions that have been made—for example, that persons should have to show that they've undergone significant rehabilitation prior to being able to have a driver's licence again—are the kinds of things that would assist the protection of the public and the safety of the roads.

• 1110

There should be assessment for repeat offenders. Do I believe that any time a person who's been identified as having an alcohol problem drives, it's a risk? I don't believe it is, unless they've consumed the alcohol. That's the offence.

Mr. Jacques Saada: I thank you for the answer. If I may say so, with all due respect, it's a very elusive answer.

Ms. Heather Perkins-McVey: I'm a defence lawyer.

Mr. Jacques Saada: Yes, I know, and you're defending very well, but I still have a problem with the philosophy behind it.

Obviously it's very difficult in our system to prejudge the intent, but many people who have appeared before us have denounced the fact that many people who are in fact found guilty of drinking and driving, or impaired driving generally speaking, knew to a large extent that they were creating the risk. I'm not expressing it properly, but I'm sure you understand fully the parallel I'm trying to draw here.

I think it was my colleague, Mr. Mackay, who alluded two or three times to the fact that getting behind the wheel is like pointing a gun at anyone passing by. It's the same thing, in terms of fundamentals, as someone who is in the situation I was describing a moment ago.

Ms. Heather Perkins-McVey: That's why we've looked at the issue of more lengthy prohibitions for repeat offenders, and that's something we support, as long as.... I don't have the statistics that verify that in fact prohibitions are a deterrent issue.

If the issue is protection of the roads, then obviously keeping those persons off the roads is addressed. Current provincial legislation certainly addresses those issues. In Ontario, for example, a third-time offender could be subject to an indefinite licence suspension.

Mr. Jacques Saada: What do you think of the interlock system?

Ms. Heather Perkins-McVey: I haven't had the advantage of actually seeing one. I am told by colleagues in Quebec particularly that it is a very useful tool in that it does allow persons who register zero alcohol to drive a vehicle. This is after serving a period of prohibition. It's not that these devices are immediately fitted into the vehicles. One of the difficulties, though, is to ensure access to those types of devices for all persons who are eligible, not just those who can afford it.

The Chair: Thank you, Mr. Saada.

Mr. Harris.

Mr. Dick Harris: I would just like to ask Ms. Perkins-McVey a question, though I know she doesn't have to answer.

Of the 100 cases you represented in this last year, on a percentage basis, what was your success rate for acquittals?

Ms. Heather Perkins-McVey: I don't know. I don't keep statistics. I ensure that my clients' rights are properly defended, and I'm quite comfortable with my success rate.

Mr. Dick Harris: Would you say it would be higher than what we would expect?

Ms. Heather Perkins-McVey: The difficulty as I see it, though....

I have a young family myself. I'm a member of the community. I want to ensure that when I drive on the roads, it's safe. I certainly don't condone any kind of activity that is illegal. A job of any defence lawyer, whether it's an impaired driving charge or any other type of charge, is to ensure that those persons who should be punished are punished and those who shouldn't aren't, and to ensure that the appropriate circumstances are brought before the court.

I don't register my success, quite frankly, with whether or not I win at the end of the day. Sometimes you simply have to advocate on your client's behalf to ensure that all of the mitigating factors are taken into account.

Mr. Dick Harris: Thank you.

The Chair: Ms. Bakopanos.

Ms. Eleni Bakopanos: Thank you very much for your presentation.

Because we do bring up individual cases, I will ask Mr. Harris to put on the record the case that he brought to this committee, where there wasn't a conviction. I'd like to see the reasons for the sentencing by the judge. It's important, if we're going to talk about individual cases, that at least we know the reasoning of how the judge arrived at his....

Mr. Dick Harris: I'd be happy to do that.

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Ms. Eleni Bakopanos: Okay. Thank you, Mr. Harris.

The Chair: Is that it?

Ms. Eleni Bakopanos: Yes, it is. Thank you.

The Chair: Make it a small one, Mr. MacKay.

Mr. Peter MacKay: It's a question for clarification.

The Chair: Go for it.

Mr. Peter MacKay: And I'll ask counsel to keep the response short too, because I know we're limited.

You indicated generally that the Ontario defence bar would be in favour of amendments to the code that would bring drug impairment into the 1990s or the year 2000, so that it would be on par with alcohol impairment. Would that include a demand for saliva, which is something we heard recommended from a B.C. crown attorney?

Ms. Heather Perkins-McVey: Just to be clear, we speak for the Canadian Bar Association's national criminal justice section, so our group consists of executive and persons across the country who are both crown and defence lawyers.

I don't feel I'm in a position to speak on the issue of whether or not saliva should be something that could be provided. I'm not aware of the science, and I don't feel I can provide that information to you.

Mr. Peter MacKay: All right.

Similarly, just for clarification, you mentioned interlocks. Are you suggesting there should be a reduced sentence as an incentive for installation of interlocks?

Ms. Heather Perkins-McVey: What we're saying is there should be some flexibility in sentencing to allow....

It goes back to what my clients always say: “Isn't there a law that says I can drive for work purposes?” I think back in the 1950s and 1960s there might have been provision for that.

What I'm talking about is the example—and I've had a few of them—where the guy is driving home, he had two or three beers, he was sure he was under, he goes through the RIDE program, there's no weaving, there's no anything, there are no problems, and he blows .081. Let's say he's convicted. By virtue of the sentencing procedures I'm familiar with, that person would lose their licence for a one-year period. That could have extremely devastating effects, such as loss of livelihood, not only for him but for his family.

In an effort to ensure that the seriousness of the offence is reflected in the penalty, the use of the interlock devices—after the minimum prohibition period is completed, so there is a deterrent prohibition period—could allow for the ability to utilize a vehicle for work purposes.

The courts and the current systems could allow for certain specifications to be placed on the use of vehicles, such as only being allowed to drive during certain hours. I think in the United States they have certain stickers on licence plates for persons who have those devices, which allow for officers to immediately examine to ensure that interlock devices are properly installed. There's mandatory inspection of those. That's something that should be utilized across the country.

Mr. Peter MacKay: So a built-in incentive.

Ms. Heather Perkins-McVey: Yes, and it's important to note that the protection of the public is paramount there, in that those vehicles don't move unless there's zero alcohol. The devices are becoming more and more sophisticated to ensure there isn't tampering.

Mr. Peter MacKay: I take your point about the use of interlocks, but I've been involved in prosecution and defence of impaired driving, and I've never seen somebody come in with .081 unless there was a synergistic effect. The police would never charge them with that.

I have a last question, just for clarification. On conditional discharges, you said you're in favour of some form of change so there isn't the existing reward for an alcoholic as opposed to the first-time offender.

Ms. Heather Perkins-McVey: The curative discharge provision is what we were focusing on, but it does have the effect of a conditional discharge.

Mr. Peter MacKay: Well, exactly. A curative discharge is not available to a first-time impaired driving conviction.

Ms. Heather Perkins-McVey: That's right.

Mr. Peter MacKay: How do we level that? It's an incentive, obviously, for somebody to go in and plead guilty, if they know they're going to get a curative discharge. But it also takes away completely the deterrent effect of the sentencing, because that's the biggest stick in the hands of the justice system: to take away the driving privilege and to give a person a criminal record.

Ms. Heather Perkins-McVey: I disagree with you that the imposition of the criminal record is the biggest stick there is. The biggest stick is the driving prohibition. The current sections, with some amendments, would allow for that continued prohibition as circumstances warranted. It would allow for greater focus of treatment, assessment, reporting back, and participation in some of these community RIDO programs.

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From the observations I've made, these community programs have a phenomenal effect. And not to digress, but some of the restorative justice approaches that are being taken to deal with offences and with sentencing, where the victim meets face to face with the accused, could be imposed as a type of penalty as part of the section. Those kinds of things, which seem to be very effective in these community-based programs, are showing very good success rates.

Mr. Peter MacKay: So the driving prohibition, you're suggesting, could still be available under a conditional discharge with amendments.

Ms. Heather Perkins-McVey: Yes.

Mr. Peter MacKay: Under the curative discharge.

Ms. Heather Perkins-McVey: It is, as it stands now. Curative discharge does not mean a person isn't prohibited from driving.

Mr. Peter MacKay: No, they lose the—

Ms. Heather Perkins-McVey: It just means—

Mr. Peter MacKay: They don't get a criminal conviction.

Ms. Heather Perkins-McVey: Or they don't go to jail for 14 days.

Mr. Peter MacKay: Yes.

Ms. Heather Perkins-McVey: But it doesn't mean very deterrent sanctions aren't placed on them in terms of, as I've said, treatment, reporting, and that kind of thing.

Jail sentences have not been shown to have the deterrent effect we would want. One of our submissions clearly focuses on the fact that if you want to solve the problem, part of it is education and part of it is ensuring the rehabilitation of those with problems.

Mr. Peter MacKay: But what amendment would you suggest to this particular section?

Ms. Heather Perkins-McVey: To make it an even playing field, first-time offenders with mitigating circumstances should be able to have a conditional discharge. The three-year probationary term could still be attached, which quite frankly would have a far more serious effect than a $500 fine.

Mr. Peter MacKay: All right. Thank you.

The Chair: Thank you.

Quickly, Mr. DeVillers.

Mr. Paul DeVillers: Yes, Mr. Chair.

Just before adjournment, further to Mr. Cadman's motion on home invasion, I'd like to bring to the committee's attention the break and enter provisions of the Criminal Code. Section 348 presently provides for increased penalty when the break and enter is done into a dwelling house: it's an indictable offence with the maximum punishment of life. Whereas if it's a non-dwelling house, it can be indictable or summary conviction with a 10-year maximum.

The Chair: Thank you.

I just have a couple of questions, getting back to impaired driving.

The majority of our population in Canada lives within two hours of the American border. I understand there is reciprocity between some states and some provinces. For example, a suspension in New York State would equate to a suspension imposed in Ontario, when it finally catches up to you.

If someone is convicted in the United States and then they're caught in Canada on the same charge, does the Criminal Code consider that a second offence? And if not, should it be?

Ms. Heather Perkins-McVey: I don't believe it is considered a second offence. We are just at the stage where computer systems and the knowledge of American records are becoming known. Only recently have I seen in my practice that a person has been convicted in the United States and it's become apparent. Once again it comes down to availability of persons to ensure the data is placed on the various systems and the interaction between the two systems.

As for whether or not it should be, clearly if the person has a problem with drinking and there have been previous convictions, that should be taken into account.

The Chair: Thank you.

There being no further questions, I very much appreciate your attendance here this morning, the time away from your practices, and the input you've provided us. Thank you very much.

I adjourn the committee.