Thank you very much, Mr. Chair.
The Canadian Police Association welcomes the opportunity to appear today before the House of Commons Standing Committee on Justice and Human Rights concerning your comprehensive review of matters related to impaired driving.
The CPA is the national voice for 57,000 police personnel serving across Canada. Through our 170 member associations, CPA membership includes police personnel serving in police services from Canada's smallest towns and villages, to our largest municipal cities, to provincial police services, to the RCMP.
Let me begin by thanking the committee for the work you and your colleagues in the House of Commons completed with respect to the issue of drug-impaired driving as addressed in Bill , and subsequently in Bill . We anxiously await these important measures and remain hopeful that the honourable members of the Senate will see fit to proceed with swift passage of the important legislation.
Motor vehicle collisions caused by impaired drivers are not accidents; these are crimes. Impaired driving remains the number one criminal cause of death in Canada. Despite our collective best efforts and intentions, it is apparent that the problem of impaired driving is worsening in Canada, and we are losing ground in our efforts to eliminate impaired driving.
We need a coordinated and integrated approach involving the federal government, provincial governments, and all stakeholders in the justice system, and we welcome the work of the committee in this regard. We would point out, however, that there have been numerous committees, bills, and studies over the past decade. The real problem seems to be in moving forward, beyond consultations, with adequate legislation and implementation.
We submit that the areas that need to be addressed in your review include the following.
The first is a legislative preamble. We would like Parliament to provide guidance to the judiciary through a legislative preamble or statement of principles, which acknowledges the inherent risks of impaired driving and the importance of meaningful and proportionate consequences for those who endanger the lives of others and of themselves.
The second is a blood alcohol concentration of 0.05%. Currently the legislated Blood Alcohol Concentration (BAC) limit is 0.08%. Given the margin of error accepted by the courts, this has been de facto enforced as a 0.10% limit, as police and prosecutors will not normally prosecute for less than 0.10%. Proposals have been advanced to reduce the legislative BAC to 0.05%. While the CPA does not have an official position on this issue, there is compelling evidence to suggest that this is a serious concern that needs to be addressed as part of a coordinated and integrated approach to Impaired Driving. Experience across the country varies by provincial legislative scheme and enforcement mechanisms. More work can and needs to be done, and Canada needs to adopt a strategy to address this issue.
The third is maximizing available technologies. We would encourage the committee to consider mechanisms to enable greater flexibility to improve the use of technology in combating Impaired Driving. Suggestions include enabling Mandatory Alcohol Interlock programs as a component or alternative to a mandatory driving prohibition period, and streamlining the approval process for Approved Instruments and Alcohol Screening Devices.
The fourth is random roadside breath testing. Presently Canadian police officers may only administer a roadside test using an Alcohol Screening Device when the officer has reason to suspect a driver may have consumed alcohol. Unfortunately this is not always practical especially when dealing with drivers involved in motor vehicle collisions. Some countries have permitted the use of random roadside breath testing, with significantly increased results. This recognizes that driving on Canadian roads and highways is a privilege, and not a right. Random testing of drivers is a reasonable and efficient measure to deal with a serious public safety concern. It is no more inconvenient to submit to a random test on our roadways than to be screened and searched at airports, public buildings, and public events.
The fifth is extending the presumption of temporality. This would enable evidentiary breath and blood samples taken within three hours of the alleged impaired driving offence to be admissible as evidence of the accused person's blood-alcohol concentration (BAC) at the time of the offence.
In 1999 the Criminal Code was amended to increase from two to three hours the time period within which the police could demand evidentiary breath and blood samples from suspected impaired drivers. However, Parliament failed to make any corresponding amendments to the presumptions of temporality. Consequently, the breath and blood analyses are still only presumed to reflect the suspect's BAC at the time of the alleged offence, if the samples are taken within two hours.
The time constraints under the criminal code can be a problem for a police officer if the arrest occurred in a rural area or on a busy night, or if the officer was delayed in assisting crash victims or securing an accident scene.
The presumptions relieve the prosecutor of the time-consuming and costly obligation of calling a toxicologist in each impaired driving case. A prosecutor who wishes to introduce samples taken outside of the limit must still call a toxicologist to testify. Given the time, expense and complexity of obtaining such evidence, the charges will most likely be withdrawn except in cases involving death and serious injury.
The sixth is authorizing police to videotape field sobriety and drug recognition tests. Where practical, police should have the authority to videotape and submit, as evidence, the testing of impaired drivers. Many police agencies have found that the use of such technology assists police in demonstrating the demeanour, behaviour and condition of an accused person. It reduces the potential for frivolous public complaints and reduces the potential for dispute over test results.
In conclusion, impaired driving is not an accident, but a serious crime with tragic consequences. Canada requires a coordinated and integrated approach, involving the federal government, provincial governments, and all stakeholders in the justice system.
Good afternoon. It's a pleasure to be here on behalf of the Traffic Injury Research Foundation. I have some information that I think you will find interesting.
Our submission mainly focuses on lowering the BAC limit to 0.05. We have provided some supplemental information on ignition interlocks as well as continuous alcohol monitoring, which are being used in other jurisdictions to monitor offenders.
In the last several years there has been a lot of debate surrounding the 0.05 issue. Until this time, I think much of the debate has focused on the strength of the scientific evidence, or lack thereof. Our organization has produced a number of reports on this issue, as have other organizations. So today I am not going to speak to the scientific evidence, but I will speak to the practical implications.
Our organization, with funding from Transport Canada as well as the Canadian Council of Motor Transport Administrators, surveyed 1,000 lawyers in Canada, both crown and defence counsel, and asked them about the issue of impaired driving. One of the issues we touched on was lowering the limit. I think the findings from the survey certainly provide insight into how well the justice system is currently coping with impaired driving offences, and what the implications will be for the justice system if we lower the BAC to 0.05.
I don't think it comes as any surprise that the majority of cases that go through the system are usually at 0.10 or above. We do see some 0.08 to 0.10 offences prosecuted, but the vast majority of cases are generally over the 0.10. Again, that's something we have to keep in mind as we look at the rest of the results.
The criminal caseload of crown prosecutors is approximately four times that of defence attorneys. In a given year, a crown prosecutor will handle some 450 cases, relative to about 115 cases for defence counsel. So from the outset, I think we see vast inequities in terms of the magnitude of the overall criminal caseload. If you're looking specifically at an impaired driving caseload, on average about one-quarter of all criminal cases are impaired-driving related. This does vary by jurisdiction, from as low as 17% to as high as 30%.
Also, we have to keep in mind that a significant portion of the cases currently processed through the justice system involve repeat offenders. These are offenders who pose a higher risk and, certainly, offenders who contribute more significantly to the alcohol crash problem.
So the variations in the caseload between the crown and the defence are quite substantial. At this time, crowns are certainly working at a disadvantage.
Lowering the BAC limit obviously is going to result in even more cases coming into the justice system, an issue I'll speak to in a few moments. Given the inequities we have today, we have to understand that those inequities are going to become even more pronounced as we increase the volume of offenders coming into the system.
If you look at how cases are resolved, you'll see that close to half, or more than 40%, of impaired driving cases proceed to trial. Obviously that has implications for the resources available in the justice system. It's much easier and quicker to resolve cases through things such as plea agreements. Plea agreements account for about 16% of the resolutions, but as I said, more than 40% go to trial.
Generally, from what we understand from the input of crowns and defence attorneys, people go to trial not just because of the penalties associated with a conviction, but also because of the sheer consequences of having a criminal conviction on your record. I think the implications since 2001 of criminal conviction have become much more pronounced. So I don't think there's any reason to believe that people at lower BAC readings are simply going to resolve their cases by taking a plea and a conviction, because at the end of the day, that conviction has serious consequences and is one of the key concerns.
Looking at preparation time, crowns generally spend one-half or one-quarter as much time as defence attorneys in preparing cases. Again, relative to the size of the caseload and the inequities within it, it's not surprising they spend so little time preparing cases relative to defence attorneys. Again, I think you're going to see those inequities become much more pronounced as the volume of cases going into the system increases.
Prosecutors will tell us that the conviction rate on average is about 52%, which is shockingly low. It ranges from anywhere from 41% to 75% across jurisdictions. Obviously you can see why so many people are inclined to go to trial; if you've got a 50-50 shot of being acquitted, I think most people would take their chances and go to trial, particularly to avoid a criminal conviction. Clearly, the specific deterrent effects of the law are being eroded when we can't even convict the offenders that we currently have coming through the justice system.
How long does it take to resolve cases currently? If you're talking about a plea agreement, you're looking at about six months; if you're talking about a summary conviction trial, it's about 11 months; if you're looking at a trial that proceeds by indictment, you're looking at 14 months. Again, the deterrent effect of the law is certainly being eroded. If it takes offenders more than a year to have their cases resolved, I would say that sanctions certainly are not swift, and given the 52% conviction rate, they're not certain either. I think the general and specific deterrent effect of laws is certainly being eroded with the cases we currently have.
When we asked crowns flat out if they support it, 40% of them agreed, which means 60% of them didn't. You see variations across jurisdictions, but given the inequities in caseload, given the inequities in case preparation time, given the fact that they face such challenges convicting the people we already have, you can understand the lack of support for increasing the volume of cases going through the justice system.
In 2006 there were some 74,000 criminal incidents of impaired driving. On average, year to year we're already processing about 50,000 criminal cases through the justice system. We asked the provincial jurisdictions that record them how many 0.05-and-above offences they record. From those that gave us a number, we came up with 47,000. You can see right there that all of those 47,000 provincial charges would be converted criminal charges, so you've already doubled the number. That's not counting Alberta, that's not counting Ontario, and that's not counting Quebec. Quebec does not have a lower limit; with federal legislation they will have a lower limit, which means we can expect an equal portion, if not a larger portion, of offenders in that range to come from Quebec. By lowering the legal limit, you will at a minimum double, if not triple, the number of criminal cases already being processed. Again, given four times the caseload, half as much time to prepare, and a 50% conviction rate, you have to understand what the consequences are going to be of doubling the volume of cases going through the justice system.
Certainly lowering the BAC will result in more time to prosecute and close these cases. It will detract from the focus we have on higher-BAC offenders, higher-risk offenders, and repeat offenders. The level of resources really isn't going to be there to be able to sustain that type of volume within the system.
I don't think we can expect conviction rates to improve. Again, our conviction rates are very important to us. That's what deters offenders from reoffending.
I think we've seen that lower-BAC drivers can be dealt with within an administrative system. Certainly that administrative system needs to be enhanced, and Transport Canada and CCMTA have been working on that. They have developed a strategy and a method for doing that. I think those efforts should be encouraged and continued, just given what the criminal justice system and what the lawyers working within it are currently trying to cope with.
The report has been written in French, but I will speak in English.
I'm a scientist, and I work with a group of scientists who are essentially examining repeat offenders and the risk of people who have been arrested. I will speak about our concerns. Our data comes from Quebec, and essentially what I will be speaking about is the situation in Quebec.
First, I really want to thank you for the opportunity to speak in front of this committee. It's an honour. I will describe the situation as our team sees it and then give our recommendations.
One of the first things that strike us is the fact that the probability of being arrested when you're driving while intoxicated in Quebec is 1:500 to 1:2,000. That probability is extremely low, and I'll come back to that.
Secondly, as Robyn Robertson just spoke about, the probability of being convicted once you've been arrested is 50%. Now, what does that mean concretely? That means that if you have the means to hire a lawyer, you will do that. Given that the lawyer is paid by the hour, the more you can pay that individual, the more the individual will find faults in the procedure. The blood alcohol level will not be put into question, because right now those tests are quite reliable. What will be put into question is how the policeman has worked.
That has impact on the Quebec policemen. We would be blind not to think so. This means that if somebody who probably has a high blood alcohol level is driving a car that shows this person has means, most of the policemen will just turn their eyes away, because those are the folks who probably can afford a lawyer. The impact of that right now is that we have a two-tier justice system in this area. People who are comfortable probably don't get arrested, or if they do get arrested, they hire lawyers and get out, which means the poor folks are suddenly convicted.
Quebec has taken the extraordinary decision of making sure we have an assessment of those who are arrested, and we really commend la Société de l'assurance automobile for having done that. The idea behind that, and the idea of the Assemblée nationale, was to evaluate those who are arrested, evaluate the risk of recidivism in order to get those folks into treatment, getting the care they need, and getting them to change their behaviour to save lives.
That whole concept is exactly where Canada needs to go. However, when you look at the way the process is applied, the story is different. The story is that if you have a satisfactory evaluation, you are evaluated and you are not seen as having a risk. It still has cost you $4,000. If, on the other hand, you have a non-satisfactory evaluation, then the cost goes up to $7,000. These generally are poor folks. As a result, the concept was created so that we could get dangerous people off the roads. In fact, what we are seeing is people simply don't go to the assessment.
In our report you will see a paper that's currently under print—the first author is Tom Brown—and what we find is that the non-compliants, the people arrested who simply do not go to the assessment and drive without a licence, are the most severe cases. Since we're looking at them in our data bank, I can also tell you that those people are the poorest. As a result, what we know from the international literature is that anybody driving without a licence has a higher probability of having an accident.
So the end result right now is that the legislation in Canada is probably adequate, but the way it's applied has a consequence. We have the wealthy people driving, probably with high blood alcohol levels, and the reality is that your perception and your time of reaction is equivalent, be you rich or poor. That doesn't make a difference. So they are quite dangerous. On the other hand, you have the poor people who cannot afford to go through the process, and they are driving without a licence, increasing the risk.
What are our recommendations? You will soon have the translation of the report that was done by Jean-Marie De Koninck. The report is clear. It has very interesting recommendations, and our team thought that maybe we could point out some of those recommendations. But right now for this committee, we have five recommendations, given the research work we're doing. I'm essentially looking at what our work as scientists has taught us.
First, it's clear that we need to increase the probability of being arrested in Quebec and probably in Canada. The beliefs have to change. For beliefs to change, you have to have more surveillance or you have to do what France has done and other countries have done, and put in sensors so people will be watched. That's key. Unless we change that, we will have other results like we had in Quebec in 2006: people believe that they will not be arrested if they drive while intoxicated, and that's the first problem. Two thousand seven hundred people die in Canada because of road accidents, and about one-third are linked to alcohol.
The other thing we need to do is look at why the ratio of conviction is so low. Madame Robertson has spoken about that. We have spoken about that. It doesn't make sense that 50% of these folks get off.
The third thing we need to do is better understand recidivism. Our research—and you'll find the bibliography shows this--is one study. We can't generalize it. The work has to be redone with other teams.
What we're finding is that these people have no memory and these people have no executive function. What does that mean? It means that you have people who, for whatever reasons—either biological or because they drank so much—(a) cannot remember, and (b) think that if they do this then this is going to happen. That's executive function. So they get in their car, and they're not able to anticipate that if they do this then this is going to happen. That's exactly the winning cocktail for another case of recidivism.
We need to think of drunk driving, given the fact that now we're starting to understand the neuro-psychological limits of these people. We've seen them as wicked. If we want to change the fatalities on Canadian roads, we need to think of strategies that take into account who they really are, and not who we think they are. Of course, putting in ignition interlocks would be a winning strategy. Right now they have to pay for them, and as a result, they don't use them. We need to rethink our strategy if we want to be effective.
Finally, the other thing that is extremely important, which we do not speak about and which is out of this field, is controlling speed. In France, because they put sensors in, the rate of accidents involving alcohol has been reduced. When you're drunk, you take risks. The regular alcoholic, 50 years old, who knows he's an alcoholic, knows he's drunk, drives slowly, makes his stops, and is super prudent and doesn't get arrested. If you're drunk and you know that there are sensors around, you're still not crazy because you're drunk. You know that you can't take risks, because you're going to be caught. You know you can't speed, because you're going to be caught, and you're in a world where speed is forbidden.
Unless we work on speed and risk-taking on the roads as a Canadian priority, we won't be able to achieve our goal, which is essentially to increase the security of Canadians on our roads. That's essentially what our team has to convey to you.
Again, I was honoured to speak to you.
I haven't done a Breathalyzer test for 20 years, so my experience is somewhat dated. I was a Breathalyzer technician for four years; I did about 440 tests and received my training at the Centre of Forensic Sciences in Toronto. They, at that point in time, and I believe still today, administered the provincial Breathalyzer system in Ontario and did the certification of the machines and the training for police officers.
Certainly the machines have probably changed since I was doing tests 20 years ago, but they were a fairly simple device in which issues of calibration and that type of thing weren't really a significant concern. I understand the point about the confidence of the judiciary, but I'm not sure that the adequacy of the device, or the instrument itself, is the reason we're seeing the problems with the conviction rate.
In many cases the reading is not the issue; it seems to be more an issue around the procedures followed by the officer up until the time of arrest--from the time of the arrest until the time the Breathalyzer samples were taken--and then other factors that the defence may call into question during their examination. Certainly if there was a belief, or if it was established, that the confidence in the equipment is an issue, then perhaps that type of step would be necessary. But certainly, that wasn't my experience during my time.
At this point what we're looking at is that in order to get a person who's addicted into a change process, the context has to be not as repressive as it is right now. That's one point.
Second is that—even though I hate to say this, because in fact they should be responsible—if it's too costly, they won't do it, because generally they're poor.
The third thing is that probably we need to look at more mechanical means, such as interlock devices. If somebody can't remember, then you'd better have an apparatus in the car that at least stops that person from driving when they're drunk.
In fact, we're doing it for people.... Once you're 75 years old...I don't know the exact age, my data is not clear on that. But when you're increasing in age, you have to be tested every year, because we do acknowledge that not everybody can drive a car. Some people are 40 years old and they can't drive a car. Probably we're going to have to become more sophisticated with that, and implementing that is very difficult. Maybe we should look at how we make sure our cars don't start when people are drunk.
At this point, the results we're getting with the folks we're seeing.... Also we did qualitative studies; we spoke to them and we asked them how they viewed these things. We did this blind, and I was able, by reading the answers of these people, to know if they were recidivists or not, because the more they're recidivists, the less they see themselves as responsible or see that they can put other peoples lives in danger.
We had people who had been arrested once, and you have this clear statement, “Thank God I didn't kill anybody. And even if I'm paying $4,000, it's not a lot, because I didn't kill anybody”. You know this person is not a recidivist.
On the other end of the spectrum you have the folks who, of course, are responsible for a large fraction, and we need to be able to.... I'm going to say this, I hope it sounds right. Ideally, I would like to beat these people, but I know it won't work. We're going to have to think of a means to protect us against them.
Ms. Nadeau, the last time you appeared before this committee, I believe it was studying the fetal alcoholism regulations introduced by Mr. Szabo. I remember I very much appreciated your testimony. We continued the conversation in the West Block cafeteria. We talked about various things, subjects that don't necessarily concern committee members.
I see, and this is important, that there is a common point in your testimony. You say there are limits to what can be expected from criminal law. It's not at all clear that criminal law is always the key to achieving our objectives, that is to say road safety and public protection.
You said one thing that struck me, and I'd like you to go back to that. In your view, we shouldn't form an idea of these people, but rather find out who they are and how they operate. You seem to draw a distinction between people who manage to slip through the system and who, even if they intoxicated, are clear-headed enough not to get caught, and the inveterate drinkers who, even when they are caught, aren't deterred by the penalties they receive. Criminal law won't enable us to progress in that sense. You offered some suggestions with regard to prevention and remote starters.
Please be more explicit so that we can understand more exactly what you want to recommend to us.
Absolutely, because driving a vehicle isn't a right: people need to get a licence to do it. We're searched in airports in the same way. We're not outraged when we're searched before entering an aircraft.
I don't think Ms. Nadeau or Ms. Robertson talked about the fact that, after two drinks, people who rarely drink are dead drunk because they aren't used to alcohol, whereas others can drink 40 ounces of scotch, get into their vehicles and drive. In their case, I can guarantee you that you'd have trouble believing they're drunk, except for the smell. Some walk a very straight line and pass the so-called symptom tests. This measure would enable police officers to intercept these people.
We're talking about the quality of blood alcohol tests, and it's true that a certain margin is generally allowed. Crown prosecutors will tell you: a person stopped whose blood alcohol level is 0.08 has a good chance of not being charged. However, if that person was involved in an accident in which people were injured or killed, the prosecutor is somewhat forced to lay charges. Otherwise, once the prosecutor's review is completed, the case is set aside.
The advantage that accused have of being represented in court was also mentioned. That's for sure. First, the proceedings last for months. Consequently, it may very well be impossible to find the witnesses who were at the scene. In the majority of cases, people get off on technicalities. They claim that the time period was more than two hours, that the blood alcohol test was set up and the heat of the room affected the results, so that was prejudicial to the person stopped.
In addition, you can't solicit the services of experts every time a case involving a blood alcohol test is heard in court. That would cost the government a fortune. We would definitely like to use that expertise, but it's denied us. We are authorized to use the services of an expert in the case of fatal accidents, when enormous damage or injury is involved or when a technicality concerning times is raised. Once again, that depends on the incident. This kind of situation doesn't help us either, and it's true that that's unfortunate.
I very much appreciate the testimony of Ms. Robertson and Ms. Nadeau to the effect that 50% makes no sense.
As a researcher, I can't answer your question adequately. However, I think it's worth looking at what France has done in this area. The French have installed detectors to control speed. When the French exceed the speed limit, they receive a contravention and a photo in the mail.
At a recent scientific conference—I should point out here that I haven't read the documents and that our researchers will have to verify the quality of this information—it was revealed that the number of accidents involving alcohol had declined. It was also stated that this number had fallen to such a degree that the longevity of the French had been altered. I was a professor invited to Bordeaux, and when I presented the data, my colleagues there told me that, the main challenge in France was to keep people alive until the age of 40. People were dying in car accidents, but the situation changed after the age of 40; they lived well. I brought this question up with Herb Simpson, who has long been the director of the Traffic Injury Research Foundation. He told me that France's road safety record was worse than Canada's. So you have to consider the facts in perspective.
However, I would like to remind the committee of the importance of controlling speed and risk-taking as factors in reducing the number of deaths and accidents on the roads. In the Department of Transport report chaired by Mr. De Koninck, Mr. De Koninck, who is a mathematician, recalled that speed was the number one problem on Quebec roads, ahead of even alcohol. A cascade effect was also noted: when speed is controlled and suppressed, the rate of alcohol-related accidents also declines. The translated English version of that report will be sent to you soon.
As we've also studied the speed question in my lab, I'm completely comfortable with that statement. I will also remind you that, as long as Canada and the United States market faster and faster cars, there will be another type of problem. That was an “editorial” comment; you can make of it what you will.
I'm going to ask a few questions.
I understand the resource issue, but for me, the number of impaired driving charges that are laid, the difficulty with the whole process.... I've been in law enforcement. I've arrested people for impaired driving. I've had to wait for an RCMP officer to show up because I didn't have the roadside Breathalyzer device. All of that happened. It's several hours from the time that happens until this process leads to the evidence to lay a charge, and so on. We don't need to get into those details.
I'm just wondering if, rather than adding more resources, there's something we can do in the legislation to make the laying of the charge and getting a conviction more efficient. I'd be curious to hear anything about that from any of you.
I have another question. I'll just put both questions out there.
From the perspective of post-MVA, there's obviously the issue that when there's been a collision and there's been serious bodily harm.... We know you have to have reasonable and probable grounds to ask for a sample when you have people who are seriously injured. Sometimes that's a loophole--the officer can't get the reasonable and probable grounds to get a blood sample or a breath sample.
I also know of situations where people who were experienced enough have actually left the scene of an accident and proceeded to a drinking establishment to start drinking to destroy evidence that they were impaired at the time.
I'm just wondering if you could speak to some of those things.
I think those are technical loopholes that need to be closed up in the legislation. Obviously we have the presumption of innocence and some other charter rights. I'm wondering if there's anything you could advise this committee about that might tighten up some of that legislative framework, so those loopholes aren't so available, without jeopardizing or risking people's rights to a fair trial.
You'll remember very well the problems we have to face every time we arrest somebody for impaired driving. It's so low. We're talking about 50% of people being convicted, because of the fact that they jump a lot on technicalities.
For instance, as I said, the two hours is so quick. It goes so fast, by the time we get to the scene and witness what's going on and what has probably happened. Within the two hours we have to, first of all, charge a person, then the person has to call his lawyer, and then we proceed with it. And sometimes we're far from headquarters or from the detachment. So it's not logical to keep it at two hours.
The other thing that would be very helpful, as we said, is random testing. It could be done with an alert, and you know how it works. You stop people on the highway, and there's a huge difference. As to the suggestion Mr. Griffin made earlier to test with a Breathalyzer, the committee should do that. It's not about drinking; it's to see the difference between different people. Certain people can drink four or five ounces of alcohol and you don't even know they have had a drink, compared to person who has one ounce and is on the floor.
So for us, on the highway, if we had the power to stop a car or have those roadblocks and go with random testing, that would help us a lot.
I would like to comment on the manifestation of intoxication. In fact, what my colleague is speaking about is tolerance. When people are dependent on alcohol, they have developed tolerance. As a result, they do not look drunk. However, when you look at the reflexes of these people, they're a really big danger on the road because of their reaction time.
What we're speaking about on the road is the following. If there's a threat on the road, one needs to be able to integrate many decisions at the same time. For instance, there's a car coming and it's threatening me. Do I need to accelerate, go in the ditch, put the brakes on, or do whatever? That involves complex decisions for the brain. Being drunk is exactly that. Those people who have no outside sign of intoxication are incapable of that complex process.
On the other hand, I would like to remind the committee that a young drinker may in fact experience drunkenness, because when the blood alcohol level is increasing, you feel drunk, but in fact the reflexes are still there. That's important to understand. They look drunk, but if you test them on perception or on reaction time, they're not as bad. So in fact they're not as dangerous, even though they will look more drunk.
On the other hand--and I remind you if you're drinkers--when the blood alcohol level goes down, at the end of a party, for example, you don't feel drunk. You feel as if you weren't. But then you're in danger, because if you are tested, the BAC will be high. And if you're tested on reaction time, which is the key thing on the roads in having the behaviour that will prevent an accident, you will not be good.
So our subjective experience is treacherous.
Again, I'm not a scientist and I don't profess to be an expert in this, and certainly I think it's going to vary for individual characteristics and individual people, but certainly the concerns are that the person is probably a little bit more happy-go-lucky, is going to be less attentive to detail, maybe fumbling for a cigarette when he or she should be paying attention to what's ahead on the road, cranking up the radio, mildly euphoric, and as you go up that scale, presents a higher risk than somebody else.
I think there are a couple of problems right now. One is that we don't have a coordinated approach from coast to coast. The provinces are different. They're at various stage of implementing the administrative systems to complement the criminal system, and I think that has to be addressed.
But there is a risk that it becomes the path of least resistance, as well, for people. So people decide it's a borderline case and, in the rush for time, instead of proceeding with the criminal charge, revert to the administrative system between 0.05% and 0.08%.
I think the risk is that those numbers are perhaps artificially inflated, because there are people in there who should in fact be dealt with under the criminal system but, because of convenience, are being dealt with under the administrative system.
The other concern I have is this repeat offender problem, a person who has gone through the administrative system three times at between 0.05% and 0.08%, who finally has an accident and kills somebody, and they do a Breathalyzer and find out the reading is 0.12%. Is that person really going to be treated as a first-time offender or as somebody with a more serious problem than the so-called first-time offender?
Ms. Nadeau, there's a point you make, not necessarily that you want to speak to it, but I think it's an interesting point.
Mr. Cannavino, you talked about wanting to have more spot checks, to have the ability to just pull people over and be able to test them, or roadblocks or things of that nature.
With drunkenness, because what you're describing, particularly in the lower range, is happy-go-lucky, more aggressive behaviour that would lead to things like running red lights or perhaps driving too fast, erratic lane changes, the type of behaviour that causes accidents, should we not be focusing mostly, first of all, on going after that kind of behaviour—in other words, the type of behaviour that is more dangerous on the road?
Ms. Nadeau has suggested, I think, photo radar as one potential thing that we should be looking at, but those things that would indicate that people are engaging in dangerous activities. In other words, is it those dangerous activities that people engage in because they have elevated blood alcohol levels that are causing the accidents, more so than the elevated blood alcohol levels themselves?
It can't be photo radar—and we've made a lot of presentations, even in Quebec—because you have to be careful with the Jean-Marie de Koninck report.
Police associations in Quebec did express their concerns about photo radar, how it seems to be the panacea for certain people, but it's not, because those people are not arrested or stopped right away. You could have a snapshot of somebody who we think would be drunk, but there's nobody there to arrest the person. So I'd be careful there.
There's one other thing I would like to add. We were talking about random testing. The other thing is, and it is a known fact, if you get involved in an accident and you had a couple of drinks, and you rush home as soon as possible, leave the scene, and call the police station right away, they won't accuse you of leaving the scene of an accident. You panicked, you went home, you had a shot and called the police station; you didn't want to avoid responding to the action you were involved in.
That is the best way to trick the system. You leave, you call the police station, you get a couple of drinks, and then where's the proof? How can we bring you back to the police station and say, okay, you're going to have a Breathalyzer test? It's done. It's a known fact.
Good afternoon, Ms. Robertson, Ms. Nadeau and Mr. Cannavino. First, I'll state a brief preamble, then I'll ask you a question which you may all perhaps answer.
First of all, we're talking about impaired faculties. The Société de l'assurance automobile du Québec, through its experts who support the Crown prosecutors, often say that the faculties are already impaired at 0.05%. We're talking about different faculties, whether it's physical, mental or related to thinking. You gave all kinds of examples a little earlier.
Then I would like to hear about the problem that we're having with regard to the bill. Earlier someone commented that the two-beer defence, which you talked about earlier, is currently being studied by the Senate. We have to wait. As you know, a senator steps slowly. That defence should nevertheless be eliminated, at least at first glance. In my opinion, this committee is doing a very good job in this regard.
I would also like to emphasize the fact that it's the provinces that sell alcohol, not the federal government. Alcohol is a provincial jurisdiction. The Société des alcools du Québec makes a profit of $1 billion a year. I don't know how much the LCBO makes, but it also seems to sell a lot. So they're the ones that sell alcohol and do advertising, among other things, in Quebec. I think that Ms. Nadeau can confirm that for us.
Alcohol is criminal. Governments sell a criminal product, and people consume that product! What is worse, compared to Ontario, alcohol, wine and beer are sold everywhere in Quebec. There are 50 convenience stores and 50 alcohol licences in a neighbourhood of approximately two or three streets. Wine and alcoholic beverages containing alcohol levels greater than the 2% or 3% that used to exist are even sold in the grocery stores.
We're fighting on this matter, and we're trying to find a solution. However, if the vendor doesn't want to stop selling alcohol, what do you do? We can think whatever we want, we'll still have a problem. Governments handle alcohol and gambling, and soon it will be something else. They make profits from all of society's vices.
There's another alcohol-related problem. It concerns the theory of the patient or the alcoholic. As a lawyer, I don't usually get the impression I'm putting a sick person in jail. If he's sick, he shouldn't be in prison but in hospital. That's something else.
I now come to the 0.05%; that's what interests me. Shouldn't we prefer a somewhat European solution—as in France, I believe—by setting up road blocks? In France, they use random roadblocks. In the street, you find a judge and three or four police officers who stop you, and if you've been drinking, they seize your car, and you finish your trip on foot. That's done in France; I've seen it with my own eyes.
Wouldn't it be better to choose another solution? By allowing a percentage of 0.05% or 0.08%, we allow someone the option of drinking. However, if we say that the allowed level is 0.0%, there's no loophole. Wouldn't that be a solution? I'm not saying that's what we want. I'm trying to understand, because we're opening a door that we won't be able to close. If I say there's no alcohol at all, you won't need anything; there won't be any possible defence since you can't drink alcohol at all. There will be no two-beer defence or machines, since it will be no. I would like to hear what you have to say on that issue. Isn't that the problem?
The government sells alcohol, makes profits and doesn't want to let go of the money machine. On the other hand, citizens are being killed. In my province, the number of deaths caused by alcohol is appalling. As Mr. De Koninck said, even the National Assembly has been informed, but they're dragging their feet in adopting what Mr. De Koninck wants. I'd like to know what you could suggest to us.
I'm not a member of this committee, and normally I wouldn't enter into the fray, because I'm not sure where you are with the study, but I have had some exposure to this particular issue, because until recently I had two big breweries in my riding, Molson and Labatt breweries. Now I have a Molson brewery. But I have been quite involved in the issue because, of course, how this shakes down is very important to them.
Many of the provinces have the 0.05 already, and those are administrative sanctions. When you move to putting it into the Criminal Code, I'm worried about the casual person who has one beer too many but doesn't really create a terrible hazard and ends up with a criminal record. That criminal record is with them for life.
The other thing is that I am more concerned with chronic offenders. You pick up the paper, and there are the people who have been accused and charged and convicted of drunk driving so many times they've had their licences removed, or suspended, and they're on the road. Some of them are on the road when they don't even have a licence. How do you police that? You have to police it by pulling them over and finding that out. But it seems to me we should be very harsh on repeat offenders. You can't do anything about the person who's not entitled to drive, who gets in the car and drives anyway. All you can do then is hopefully lock them up for a bit. I'm more concerned about the chronic offender.
Maybe you could talk about what police and the provincial jurisdictions are doing about that. It seems to me we could have some harsher sanctions for the chronic offenders.
There's another area that I'm not sure you've touched. We're talking about alcohol, but the big issue emerging is drugs. It's a difficult issue, as you know, because you can measure alcohol through a Breathalyzer, but drugs are a little thornier problem. Parliament just passed some legislation not too long ago, but for measuring what's in a person's system, whether they have medicines or they have a bit of coke or a bit of crack or a bit of this or that, the technology just isn't there right now.
I gather that a lot of young people and other abusers of drugs and alcohol are moving more now to drugs, because if they are going to drive, it's harder for them to get caught and convicted if they're taking drugs.
I'm wondering if you could talk on those two aspects, the chronic offender and also drugs and how to deal with that.
Mr. Chairman, this is like déjà-vu. In 1999, we did all of this. I was on the committee at that time, from beginning to end. I'm happy to say we made some major changes. I think in November 1999 the bill passed, and we made some major changes. But we're still fighting a situation that was evident then and is still not fixed now.
Back in those days the latitude a judge had for sentencing was from zero to fourteen years. By the time we finished all that legislation changing, it was zero years to life imprisonment, depending on the factors of the incident.
That being said, back when it was zero to fourteen years, the average sentence for impaired driving causing bodily injury was somewhere around two or three years; it was nowhere near the maximum. So we increased it to zero years to life imprisonment for accident causing death where there were aggravating factors. And yet of the sentences they're handing out, unless I'm mistaken, the highest one since 1999 was in a case in Alberta, where I think someone got eight years. There may be a higher one I don't know about.
The courts are simply not enforcing the law. I know there are lots of problems with our court system, but until we get judges who are willing to put forth a deterrent, which they have the power to do, people are going to disregard it.
I did several surveys back in those days. I asked, “Why don't you drink when you drive?” The number one answer was, “I don't want to get caught.” They didn't think they were driving impaired; they just didn't want to get caught. Well, there were a lot of people still driving because there was no deterrent. And there still isn't.
Concerning the 0.05, we didn't make it on the 0.05 back then, but someone just brought up the crux of the thing, which is that you don't even get to court now unless you're 0.1. There's that built-in margin of error, which was not caused by the equipment; it was caused by the courts. Some pretty sharp lawyers convinced the judge one day that the equipment was faulty—which it probably wasn't, but the judge accepted it.
So if you're at 0.08, you will never even get to court, even though you were impaired. There is so much reason to adopt a 0.05, because you're not going to get to court unless you're at 0.08, which is where you should be going to court now, but you're not.
Just to look after what I call that fictitious margin of error, we should go to 0.05, because we will only begin prosecuting at 0.08. I think that will send a strong message out to those people who choose to drink and drive—and it's a choice—and think they're going to get away with it. If the judges let them get away with it, they'll keep doing it and will keep killing and injuring people.
I don't know whether I have a question here, but it's frustrating after all these years to see that we have had the legislation and the courts still aren't even using it.
In short, these are deterrents designed to prevent incidents from occurring.
In some cases, people know very well that they won't be charged if their blood alcohol levels are less than 0.10%. There are also cases in which a person involved in an accident leaves the scene of that accident, goes home and has a few drinks, then calls the police station. That persons gets off; he can't be charged. That's another problem. If there was an automatic charge—if someone refuses to take the breathalyzer, he's charged with refusing to do so, but, when someone leaves the scene of an accident, goes home, calls the police station and says he had a drink at home, he's charged with nothing. Even if you charge him with leaving the scene of an accident, he'll cite all possible reasons, such as that he was under great stress, and will get off.
Currently, there are loopholes; that's for sure. However, if it is clear to a person that he's going to be sentenced, will have to use an ignition interlock with a breathalyzer and may have his licence suspended, he'll think twice about it, especially if he has a job. With regard to prevention as well, we've discussed at length the importance of clearly indicating the consequences people who are impaired will have to face if they are in an accident or are stopped. Fear of being stopped may at times be the beginning of wisdom.
I think there are things I didn't do when I was young because I was afraid my father would catch me. Someone who is afraid of being stopped on the road may automatically designate a driver for the evening, as I see my daughters and a number of other people do. Every time they go to a discotheque, they designate a driver, who doesn't drink for the evening. Everyone takes turn; they play that role.
Thank you, Tony and David. It's good to see you both again, and Ms. Robertson and Ms. Nadeau.
David, you'll remember back in the day there was a time, while I was still Solicitor General, when we pulled the Breathalyzers from the streets because there were concerns about the calibration. So I want to talk a little bit about the equipment, just factual stuff.
Is it possible to upgrade the current equipment, if we make this change, with just a minor calibration, and if so, what would that cost be? If we have to replace it with brand new technology, what would that cost be?
I was quite interested, Ms. Robertson, in your saying that in California the roadside Breathalyzers are of such a quality that they're actually allowed to be introduced in courts, which, as far as I know, is light years away from where we are.
Perhaps, Chair, we could get a little bit of feedback on that.