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Standing Committee on Justice and Human Rights



Thursday, February 7, 2008

[Recorded by Electronic Apparatus]



    I call the Standing Committee on Justice and Human Rights to order. It is Thursday, February 7, 2008, and the committee is under direction to study the matters related to impaired driving. We have a number of witnesses appearing.
    First, from the Canadian Police Association, we welcome Mr. Tony Cannavino and Mr. David Griffin. I understand that Louise Nadeau, from the University of Montreal Research Group on the Social Aspects of Health and Prevention, is not here yet. She will be here shortly. From the Traffic Injury Research Foundation we have Robyn Robertson.
     Welcome all.
    According to our agenda, we'll proceed in that fashion. I turn the floor over to Mr. Cannavino.
    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 C-32, and subsequently in Bill C-2. 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.
    Thank you.


    Thank you, Mr. Cannavino.
    I'll just go over to the Traffic Injury Research Foundation.
    Ms. Robertson, it's your opportunity.
    And welcome, Madame Nadeau.
    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.
    Thank you, Ms. Robertson.
    Go ahead, Ms. Nadeau.
    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.


    Thank you, Madame Nadeau. We appreciate that.
    We go now to questions.
    Mr. Bagnell.
    If I don't finish with my time, Mark will use the rest of it.
    Tony, it's great to see you again.
    It's always a pleasure.
    We noticed in one of the last bills we were doing that in most places there was really no control over the maintenance of the Breathalyzer machines. I was wondering, if we put in regulations saying that they had to be maintained by an outside independent body and certified every so many years, if that would give the judges more confidence and bring more people to conviction without all these ones getting off.
    Would that help that situation?
    First of all, I forgot to introduce my colleague here, who I'm pretty sure you all know. Mr. Dave Griffin is the executive officer of the Canadian Police Association.
    By the way, he was a Breathalyzer technician, so he knows a little bit more about everything that is involved and the technicalities. I would like Mr. Griffin to answer most of this question.


    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.
    Thank you.
    Ms. Robertson, I also have a problem with the increasing penalties that go with a criminal record, even though it has nothing to do with the criminal system; it just happens to be extraneous things that make it very difficult. We have them come into our office all the time, actually, so I see that as a problem.
    I understand what you're saying, that if you change it to 0.05, with the stats you're giving, it might overwhelm the justice system. Some of the provinces have put in these various roadside methods for punishing people and deterring them, and if more of the provinces did more of those types of initiatives, I wonder if it would keep people out of the justice system, but also keep them off the roads, and be a penalty that we could use to deal with some of the problems.
    Yes, a lot of the jurisdictions do have 0.05 in place, with the exception of Quebec, and they have been moving in the last few years to increase the sanctions. For starters, some of them are actually going to record that people have had 0.05, but they're also going to have increasing licence suspensions associated with them. For some, they may be required to go for an evaluation of some sort, and there are graduated sanctions. I think that makes a more feasible approach to dealing with the issue.
    Our concern is that if you have a lot of lower BAC cases in the system, then that takes your attention away from the higher BAC. Transport Canada and CCMTA have done some great work on developing a strategy for 0.05 and developing tiered sanctions, which is what they do in a lot of other countries. Some provinces have already moved to implement that strategy, so I think further encouraging and supporting those efforts is important.
    Thank you.
    Ms. Nadeau, what you were saying was music to my ears, but I just want to make sure I got it right. Your studies show that, because of what a person is and the condition they're in when they're getting in a car, either increasing penalties or changing levels, all these things, might be totally incomprehensible to them, and there may be other steps we could take to prevent impaired accidents.
    You mentioned a key one, but I'm sure you've also mentioned dealing with the addiction before they get back in the vehicle. Maybe you could expand on that.
     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.


    Thank you.
    Thank you, Mr. Bagnell.
    Mr. Ménard.


    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.
    First, it's important to understand that all the laws that have been passed in Canada, whether in the House of Commons or in the Quebec National Assembly, have been passed in good faith. Elected representatives really wanted to opt for the best solution.
    Second, the problems arise when you enforce those laws. For example, some people can afford to hire a lawyer, who will find a procedural error. Despite what our colleagues say, blood alcohol tests are currently calibrated so that people aren't convicted in spite of dangerous blood alcohol levels. The lawyer doesn't question the blood alcohol level, but rather the procedure. Did the police officer put a comma in the right place? Did he do this or that? If a police officer is humiliated five times in court, the next time, he closes his eyes if rich people are involved.
    Did you look into that question?
    No, we don't have any data on the subject, but the samples we have of individuals who were convicted are surprisingly poor. The reason why we've been supported is that we have a representative sample of people convicted, which is very rare in the area of scientific documentation.
    Allow me to make an aside to emphasize that Bill C-2—which we passed, but which the Senate is slow in ratifying, which stresses the Conservatives—contains a measure concerning the defence of witnesses. Their two-beer defence has thus been eliminated. You say that there's a question of social condition related to whether people are convicted. I'm very sensitive to that.


    Furthermore, when the Quebec National Assembly decided that people had to be assessed, that was simply to facilitate change. They thought that these citizens could change. In fact, when you look at the process, getting your licence back is a real obstacle course. The National Assembly was in good faith, but the reality in the field is slightly different. A selection occurs regarding who is convicted. As the De Koninck report indicates, this process costs approximately $4,000. The average Canadian who earns $10,000, $20,000 or $25,000 a year can't spend that much to get his licence back. From a certain standpoint, we're creating a form of delinquency and deviance, whereas that was not the National Assembly's intent. Nor was it the intent of the Société de l'assurance automobile du Québec. However, the implementation of that decision has produced these kinds of results.
    We obviously can't not give Mr. Cannavino the floor. I emphasize that I don't want you to comment on the police laxism that Ms. Nadeau talked to us about it. I don't want to make you uncomfortable. I'll let you react to what Ms. Nadeau said.
    I'm always comfortable.
    I've noticed the limits of your inhibition run quite deep, Mr. Cannavino. You can comment on Ms. Nadeau's remarks without a problem. I'd also like you to go back to random tests.
    Absolutely, I don't question what Ms. Robertson and Ms. Nadeau say. We very much agree on a number of points. It was said that people aren't afraid of being stopped. That's because there have to be a lot of reasons for a police officer to intercept someone. I understand you on that point. It would be interesting to allow police officers, as is the case in certain countries, to impose random roadside testing, to conduct operations during which they stop people and check their blood alcohol levels. That might help police officers and citizens travelling on those same roads.
    Permitting random tests means skipping reasonable grounds.
    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.



    Thank you, Mr. Cannavino and Monsieur Ménard.
    Mr. Julian.


    Thank you very much, Mr. Chairman.
    I'd like to thank all our witnesses, who have raised some very important and valid questions.


    I'd like to start by coming back to Ms. Robertson. We don't have a written presentation, but I want to review figures.
    What was the number of cases of drunk driving you talked about that an average crown prosecutor would have?
    It depends upon what jurisdiction you're talking about. Generally, anywhere from 100 to 150 cases are impaired driving.
    This would be over the course of a year?
    Yes. They do about 450 cases a year.
    Yes, so 150 cases.
    You mentioned that about 50% of those cases actually go to trial.
    Yes, a little more than 40% go to trial.
    Okay. Could you give us the figures again about the numbers that are left aside because of what's essentially a block in the judicial system?
    Is it the 2005 numbers that you're talking about?
    You had 0.08, did you not? These are figures of 50% that go to trial from among those who are actually charged. You said that a number of those are subject to plea bargain, but there are also cases that would simply never go to trial. Is that correct?
    People would either plead guilty or would negotiate a plea agreement, and there are a few cases that are withdrawn. Then the bulk of them would go to trial.
    And those that are withdrawn are essentially due to overworked crown prosecutors, isn't that right?
    It's either for that reason or that there is not enough evidence generally to support the charges that a case would be withdrawn.
    And of those that actually go to trial, the conviction rate is 52%?
    Yes, nationally. It ranges from 41% in Quebec up to 75% in the Maritimes and the Atlantic region.
    So essentially, of those who are charged, one in every four actually are convicted under the present legislation?
    About that.
    I mean, this is the fundamental issue. I'm very supportive of lowering the limits, and I have a private member's bill to that effect. The problem is that even under the existing law, if we only have one in every four convicted, what we're essentially doing is tossing over to extremely heavily charged police officers and crown prosecutors a workload that isn't sustainable now.
    To all four of you, what is the funding shortfall that we're seeing in the national judicial system and for police officers nationally to actually put in place dropping back to 0.05%? And how have other countries handled it? How have they provided support to their judicial system and their police officers so that they can actually crack down on drunk driving without completely unrealistic expectations of how underfunding is going to cope with an increasing demand for arrests and convictions?
    In terms of the dollar value behind what it would cost, I couldn't tell you. That's not something we have information on. But as I said, to do that many more cases, we know that it would essentially be at least doubling, if not tripling, what we're currently spending.
    Within a lot of other jurisdictions, you'll find that criminal penalties are not frequently enforced because they do have stronger administrative provisions. They tend to use those administrative provisions and rely on the criminal system less frequently. I think that's really how they cope. They use the criminal system to do your higher-risk and higher-BAC offenders, and they deal administratively with lower-risk and lower-BAC offenders.
    When you say doubling and tripling, you're talking about the actual resource requirements for dealing with drunk driving and a lower BAC.
    Yes. If the volume is going to double or triple, then the resources we're currently spending would have to essentially do the same, I would imagine, to support that.


    Thank you very much.


    Ms. Nadeau, I would like to ask you the same question.
    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.


    Thank you, Madame Nadeau.
    Very quickly, Mr. Griffin.
    My concern with the proposition that we determine the limit based on the resources of the police or prosecutors is that it's a slippery slope. We can always start increasing the limit, because we can always claim that we don't have the resources to enforce it properly.


     I'm calling for more resources.
    This morning we discussed the issue of 0.05 versus 0.08. When I was a Breathalyzer technician, we would have a session as part of our training where we were all taken into a room and we would measure alcohol in scientific measuring beakers. Each day, different students would be the drinkers and other students would be testing them. In any given session, not one of the students would drink more than approximately eight to ten ounces of alcohol. That was in the period of an hour, with a small amount of food at lunch time.
     I was surprised at what the blood alcohol levels were during that training. I expected them to be a lot higher than they were. I actually cheated; I went out for lunch first and had one or two drinks before the process. But my highest reading was 0.05. I was shocked at how I and other students in that program were affected by the relative amounts of alcohol we had drunk versus what the actual readings were.
     I think an exercise, as we discussed, would be for this committee to actually go through that process of consuming some alcohol and having the test. Some of you perhaps have more tolerance than I have, I would surmise—
    It wouldn't be hard for you.
    But in all seriousness, in terms of answering this question, I think it would give you a different perspective on what those blood alcohol limits actually mean.
    That's what you get for drinking Crown Royal.
    Mr. Calkins.
    Thank you, Mr. Chair.
    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.
    Is there anything else you would like to add?
    Go ahead, Madame Nadeau.
    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.


    Mr. Calkins.
    Thank you.
    Mr. Chair, I didn't get what I thought was a clear response to the second half of my question, which was on the post-MVA aspect and maybe tightening up the legislation for getting a sample post-MVA or getting something so that if somebody goes to the bar and has a drink after being involved in a MVA, that's grounds to reasonably believe they probably should be convicted.
    Maybe, Mrs. Robertson, you could have a chance at that.
    I would say that from what we saw from the lawyers survey, the two things that are most likely to result in acquittal are evidence to the contrary and charter issues. Evidence to the contrary appears to be a rather substantial hurdle in some jurisdictions, like Quebec, and charter issues appear to be substantial hurdles as well. So these are the technicalities you were talking about.
    There are a lot of things being done. For example, in California the roadside breath test is actually an evidential test. So that precludes the officer from having to go back to the station to do yet another test that would be admissible in court. They do it roadside, and it's admissible in court. There are automated paperwork systems. There are several things that can be done and that some jurisdictions are looking at to speed up the process and make it easier to arrest and overcome all the hurdles. But generally what you'll see is that there are going to be challenges: they didn't have reasonable probable cause; they didn't have proper grounds for making an arrest.
     The charter issues that are the biggest problem are section 8, section 9, and paragraph 10(b); that's search and seizure, arbitrary detention, and retain and instruct counsel. Retain and instruct counsel is the biggest charter issue facing lawyers in impaired driving cases.
    Mr. Griffin, I see you'd like to ask a question.
    One of the recommendations we have is that if there's a motor vehicle accident, that should be adequate reason for an officer to administer a random roadside test, as opposed to having to go through the process of collecting the evidence to get that test, along with the roadside testing.
    On the notion of the hard-core drinking driver, we have to be very careful. With all due respect, of the 440 people I tested, I would be equally concerned facing on the road the 19-year-old boy who blows 0.103 and can barely stand and walk, compared to the 55-year-old business person who wakes up at that reading before they go to work. Each is a danger, but I don't think we should suggest that one is more dangerous than the other.
    Thank you, Mr. Calkins.
    Of these 50,000 charges laid over a year, what is the average age?
    Generally your drinking drivers are aged 24 to 40. I haven't looked at the 50,000 cases that Statistics Canada broke out by age, but according to the research they're generally between 24 and 40. There is a push for zero BAC tolerance for young drivers because, due to their age and inexperience, they are a greater risk for crashing, even at low alcohol levels.


    Mr. Holland.
    Thank you, Mr. Chair.
    Ms. Robertson, you mentioned other jurisdictions and some actions they had taken to be more effective in allowing convictions. In other words, there would be fewer hoops to go through, fewer errors, and fewer people getting away on technicalities. Has that resulted in higher conviction rates? You said the conviction rate here is roughly 50%. What are other jurisdictions looking at? Have there been meaningful successes in those changes that we're seeing it in conviction rates?
    I think it's too early to tell, certainly with the 0.05 sanctions, but I'll give you two comparison jurisdictions.
    If you look at Quebec, their conviction rate is 41%. This is a jurisdiction that is more likely than any other to enforce the 0.08 limit. They plead fewer cases, they have huge impaired driving and repeat offender caseloads, and their conviction rate is 41%. You can see that they're trying to do what the law intends and they're struggling to manage that.
    If you look at the Atlantic region--and we've grouped the provinces together--they have a conviction rate of 75%. They have 90% of their cases at 0.120 and over. They also have smaller caseloads. For example, in the Atlantic region the average crown would have an impaired driving caseload of 100, whereas in Quebec they would have 150.
    So we see that the jurisdictions that appear to be doing really well aren't. Jurisdictions like Quebec and Ontario that are trying to enforce the lower BAC at 0.08 and not plea cases and resolve them, as was intended, are struggling with much lower conviction rates.
    Obviously we want to go after those with the highest BAC limit. I think it makes sense to target young drivers with either zero tolerance or a much lower threshold. Given what you just said, that going after those at 0.05, 0.06, or 0.07 can really clog up the system, I'm wondering how much safer we're making the roads by going after those people.
    Mr. Griffin, you've had experience in this. Can you tell me about somebody who tests at 0.05, as you did that day, and their response time, compared to somebody who is not getting enough sleep or using their cell phone on the road? Use some other comparator so I can get a sense, at 0.05, where that person is relative to some of the other dangerous activities that people might be engaging in on the road.
    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?
    That's a fair point.
    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?


    I think we have to be careful with that. We have to go after all of them, because they're as dangerous.
    I guess I posed the question incorrectly. I didn't mean it as a choice. I meant it perhaps as an interesting point, that these types of erratic behaviours are something we have to look at. I didn't hear from you some solutions on other ways we can go after those types of behaviours more and recognize them.
    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.
    Thank you, Mr. Holland.
    What is the average processing time for an impaired driving charge, whether it's 0.08% or just straight impaired?
     I was going to say it takes three hours to process at the time, and—
    It's anywhere from two to four hours, depending on the jurisdiction. The average was about 240 minutes in a national survey of law enforcement done in 1997. We did a national survey of 2,600 law enforcement officers in the U.S. and found it was two to three hours.
    Even down there?
    Then if you add in the time of attendance in court and everything else, it goes up exponentially.
    In fact the London, Ontario, police did a workload analysis and a productivity analysis of the time spent on these types of investigations, and over the last 20 years the amount of time spent doing the paperwork and complying with all legislative requirements has gone up incredibly. Streamlining that would be a significant issue.
    Some of the things we've recommended—the use of videotapes, the random checks, that type of thing—both as deterrence and as a means to process the impaired drivers, would go a long way to increase the actual impact.
    They use a lot of video enforcement in the U.S., and they do a lot of training. It's important that law enforcement be trained, because you want to make sure, when the video gets to court, that people know what they're looking at, so that they can hear that the person was mumbling or couldn't talk properly, or see them falling down and that the lighting is good. They've had a lot of success with video at roadside and at booking in proving the impairment.
    Thank you.
    Monsieur Petit.


    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.



    Excuse me. Before you reply, that was a very long question. Could you make your response short, please?


    I believe Mr. Bronfman would be pleased to hear you say he should stop the legal sale of alcohol. Alcohol sales may be the provinces' responsibility, but the federal government levies a tax on it. That means that the various orders of government—
    Mr. Réal Ménard: Mr. Petit advocates abstinence.
    Mr. Tony Cannavino: It may be easy for Mr. Petit, but it's a little more difficult for others. We're European, and having a glass a wine with food is not a problem for us. We never feel we're criminal. Where it becomes criminal, however, is when a person whose faculties are impaired drives a vehicle and risks killing or seriously injuring someone. The vehicle then becomes a weapon. In those cases, the person in question must not be considered sick, but rather as someone who has committed a crime. Using a firearm to hunt within the parameters is fine; that causes no problem. Using a firearm in other circumstances becomes criminal.
    I would suggest to you an experiment that might enlighten the committee. Take the test; it's worth it. We administer it to police officers who are taking development courses and who are trying to get certified as blood alcohol test technicians. The behaviour of some people suggests, prima facie, that they don't tolerate alcohol as well as others. By writing or taking a few small tests, you'll see that your faculties are impaired and that you too are dangerous. The idea isn't to say that no one in Canada should drink, but to acknowledge that, in driving a motorcycle or another motor vehicle, a person whose faculties are impaired by alcohol becomes a potential criminal.



     Ms. Nadeau, did you have something you wanted to say?


    Prohibition didn't work in the United States. In the nineteenth century, we wanted an alcohol-free Canada, and that didn't work either. Health Canada has just issued a policy aimed at moderation. However, I remind you that, despite the government monopoly in this area—the same monopoly is also found in Ontario—the alcohol consumption record in Quebec is among the best in Canada.
    So what do we do? As my colleague said so well, we won't prevent Canadians from drinking. We have to learn to drink in moderation, in certain contexts. If we opt for prohibition, this committee will be dealing with more problems than in the case of impaired driving. I think Health Canada's present policy is remarkably well done. It proposes 14 situations in which people should drink prudently. Educ'alcool is doing exactly the same thing in Quebec. We have to follow suit.


    I would like to just try to clarify issues around youth, 0.05, and 0.08.
    Very quickly, madame.
    When you look at the risk curves, in fact the risk with blood alcohol levels between 0.05 and 0.08 is not very high. The risk really increases beyond 0.08, and then it goes up exponentially.
    The answer about young drivers is that, drunk or not, they have many more accidents, and the probability of being injured and dying when you're in a car with them is much higher. So we need to be able to understand the distinction between risk-taking, which is increased with blood alcohol level but is there in youth, and blood alcohol levels that are very high, which in and of themselves then create an immense risk for accidents, and it really goes high.
    Thank you.
    Mr. Cullen.
    Thank you, Mr. Chair.
    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.


    First of all, if you hear in the news that somebody has been arrested for the fifth time or the tenth time, everybody is going to have a concern here. Everybody is going to ask how the hell that person could have been arrested 10 times, or why he still drives, why he still has a permit, and why he is not in jail. But a person who has driven impaired and caused an accident for the first time is as dangerous.
    The other thing was about drugs. We have addressed that, and it's in Bill C-2, where we talk about drug recognition experts. We hope this legislation will be passed as soon as possible. We have addressed that part.
    As I said earlier, we have to be very careful. I don't say there should not be a deterrent, that there should not be a more severe sanction or penalty for somebody who is a repeat offender. Of course there should be even more severe sanctions for that person. But let's be careful here. We are talking about people who are impaired, who are using a car, a truck, or a motorcycle and putting the security and the lives of others in jeopardy.
    Regarding the 0.05, I think you can assure the brewer in your riding that the 0.05, which, as we discussed earlier, would effectively be enforced at 0.07, given the margin of error that is used by the courts, for most people--given that essentially each person is going to burn off about 0.015 milligrams or percent per hour--it's equivalent to having roughly five drinks in their system plus any drinks that they actually burned off for the period of time that they were drinking.
    I'm certainly concerned about the person who takes the wheel and who has the equivalent of five drinks in their system. That is where this committee should be focusing its attention, not on some of the mythology that the brewers or others may be promoting about what the impact is going to be on their industry. I think it is none. The reality is that you have to look at the scientific amount that represents, the 0.05 versus the 0.08 or the 0.07 versus the 0.10, and then the equivalent that represents for the average person who is consuming that amount of alcohol.
    As I challenged the committee before, if you take the Pepsi challenge and do the test, I think you'll be surprised at how much alcohol you can drink before you're going to go over those amounts.


    One aspect we seem to forget is the prevention part.
    Mr. Cullen's time is actually up, but I'll give him the opportunity to put one final question in.
    In committee, we hear mythologies of all kinds. I understand what you're saying, Mr. Cannavino, that first-time offences are just as bad, in a sense, but why we don't yank these licences from people who repeatedly get into their cars when they have more alcohol in their system.... I think we should hammer them.
    Some of the other witnesses want to respond. I'm going to ask you to get to your point quickly.
    Ms. Robertson.
    We do take their licences. Generally what the research shows is that about 75% of people who don't have a licence continue to drive anyway. I think that means we need to take measures to ensure that if we take their licence and they keep driving, then we need to put an interlock in their car. Then they can't drive.
    The BAC set point for an interlock is about 0.02. We know that when interlocks are installed on the vehicle, they reduce recidivism by 50% to 90%. So I think there's a very good solution right there.
    I would just follow by stating that if we want it to work, they can't pay for the interlock. We have to put them on for free, because if they have to pay for them, they won't put them in. It's sad to say, but it's like that.
    We have installation rates of less than 10% for ignition interlock in this country.
    Mr. Harris.
    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.


    Are there any comments from the witnesses?
    I can't agree more. I totally agree with what you said.
    The other part we should be thinking about is prevention--marketing. MADD is doing a great job, and I think the federal government should jump on that. It should put on some ads to inform Canadian citizens of the dangers of drinking and driving and the impact. I think we should focus on that.
     Mr. Harris.
    We have ex-police officers out there getting these guys off on technicalities, because they know it, and they know they can do it.
    I agree that there have to be PR campaigns. One of the campaigns should be to drive home the fact that culpability begins before you have that drink. If you're planning on drinking, you have a responsibility to make arrangements to get home without driving. If you fail to do that, as far as I'm concerned, you're guilty and you should be charged as such, because that's what kills people--kills kids.
    I agree with you.
    Ms. Robertson.
    With regard to the sanctions, I would agree with you. We do have some harsh sanctions on the books, and they're not being enforced. If you look at the average sentence that was imposed, even in 2002, 77% of people got a fine; the fine was $700-and-some. You very rarely see jail sentences.
    I think it's also important to spend some time looking at what the judges are doing and why they're doing it--the very same as we did with prosecutors. We did this in the U.S. It was interesting. When we took it on, people said we would never get the judges to participate. We surveyed 900 judges in 44 states, and they were more than happy to tell us their issues, concerns, and what problems they face.
    To work with them in a manner similar to how we worked with police and with prosecutors would give us a lot of insight and provide guidance to the committee in terms of the challenges and, more importantly, what other things can be done. The judges were more than happy to tell what they thought could be done to make the problem better. At the end of the day, I think they're just as concerned about drunk drivers as everyone else.
    Madame Nadeau.
    It's a difficult one. I've worked with municipal judges, and it was clear they have very little time to make those decisions.
    On the other hand, I'll restate my perspective. If a judge feels that in fact there are many, many others who are guilty and they are not being convicted, what does that do? The probability of being arrested right now is so low in Canada, and maybe that has an impact. I don't know, but we have to look at it.
    It's clear that the judges don't see this as a crime in the way they see armed robbery as a crime. There's a consensus in the magistrature about that. It won't change by making more severe penalties.
     I can probably assume that 1,500 people a year are being killed by drunk drivers. I would suggest there are a lot fewer than that being killed by armed robberies. Until the judges can recognize that killing someone with a car is as serious a crime as killing someone with a gun--
    Can I give you an example? I've worked with criminals behind walls. One of them had a six-year sentence because he was drunk and killed somebody. The problem I had in the therapeutic community was that he didn't see himself as a criminal. The others who had done armed robberies viewed themselves as having their place in prison--believe it or not. They saw themselves as criminals; he never did. That was our major problem, as clinicians. There's a whole culture out there.
    There's a culture of advertising that tells people it's fun to drink and it's fun to go out and have a good time. I guess it is, but they don't spend enough time telling people to make plans to get home if they're going to go out and have that fun.


    Thank you, Mr. Harris.
    Ms. Robertson, you talked about surveying judges in 44 states. Has there been any thought about surveying judges in our provinces and territories?
    It's a thought that's been considered.
    And why hasn't it been done?
    Probably a funding issue.
    A funding issue.
    Yes. I know it's something that Transport would like to do, and I know it's something that some people from Justice are interested in doing.
     As I said, I think the information we got from the lawyers survey is very valuable in telling us how well we're doing and where some of the gaps are. In the U.S., where we surveyed police, prosecutors, judges, and probation, we figured out that most of their problems are very similar. There's a lot of consensus on solutions, and we've been able to leverage that consensus across professional groups to get some meaningful changes made.
    It's easier to bring people together with their similarities than their differences.
    This is Transport Canada you're talking about?
    Yes. They funded the survey.
    So Transport Canada funds surveys in American states with American—
    No. Actually, Anheuser-Busch funded our research in the United States.
    I see. It would be good to see a Canadian survey once in a while.
    The other point you brought up in your executive summary is the difference between the conviction rate in Quebec, at 41%, and in the Maritimes, at 75%. What is this vast difference in conviction rates due to?
    It's the smaller caseloads out in the Atlantic provinces. They'd do about 100 cases versus the 150 cases they'd do in Quebec. And almost 90% of all of their impaired driving cases are 0.120% and up, so they're doing the very high-BAC offenders, and they tend to plea more cases.
    The police also tend to be doing an excellent job out in the Atlantic regions. We find that there seems to be a better rapport between crown and police working together. If you look at arrest issues, screening device issues, and those sorts of pre-prosecution and arrest-type issues, they seem to be smaller in the Atlantic region than they are in some other jurisdictions.
    So I think there are a couple of things going on, but--
    In effect the blood alcohol content is 0.12%.
    Yes. That's why they're doing so well with the conviction rate.
    Is the accident rate lower?
    Out in the Maritimes? I would have to go and look at that. It wasn't something we looked at as part of the survey, although it is data that we do collect.
    It's rather interesting to see such a difference in the blood alcohol content enforcement level. It's maybe very difficult to compare.
    I would think, too, it's not necessarily the police who aren't enforcing it. What you're seeing for some crown offices is that if you bring in a 0.08%, they won't touch it.
    If you bring in a 0.1% they won't touch it.
    They're like, “Bring me 0.1% or higher.”
    So it's a function as much as crown policies...and that's what we found in the survey of lawyers. There seems to be a lot of differentiation between what the actual practices are, what cases will be pled, versus what cases go to trial, what the BAC levels are. Those differences and practices also account for some of the differences in conviction rate.
    But that's not to say that they're laying less charges; it's just the conviction rate for those that do go to trial.
    Are there any other questions?
    Monsieur Petit.


    I'm going to go back to the question I asked you earlier. Let's suppose a person is convicted for his involvement in a fatal car accident and that his blood alcohol level is 0.08%. In my practice, I've often seen fatal accident cases in which it was a first offence for the person involved. That person could serve his sentence in the community. You see what I mean.
    We're permissive with those entering the penitentiary system. This system in Canada is like a big Swiss cheese, full of holes. There are a host of options for getting off, for never going to prison. Someone said earlier that we have to be able to put pressure on people before they are imprisoned or charged. Wouldn't there be some way of sending a message? You talked about fines and imprisonment. That's unfortunate, but we don't imprison these people in Quebec: we let them go.


    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.


    Madame Nadeau.


    In the case of the 2,700 persons who die on Canada's roads every year, we're not talking about people who have been convicted or incarcerated. This is another type of driver. Our work is to find deterrents. The most important thing is that Canadians believe, when they take to the road, that the possibility that they will be stopped is entirely real. You must rely on that belief. Unfortunately, sentences of 25 years or life do not have that deterrent effect. The experiment was conducted in Massachusetts, and it was very well documented. The important thing is that the risk of being stopped, either by detectors or roadblocks, is utterly real for people. That's what works. Harsher punishment is reassuring, but it isn't effective.
    An hon. member: That means more police officers.


    Thank you, Mr. Petit and Ms. Nadeau.
    Mr. Christopherson.
    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.
    From our perspective one of the first issues is streamlining the approval process so that as the new technologies come forward, we have the opportunity to get them into the system quicker.
    I don't believe the equipment that is currently generally being used in Canada will provide a roadside reading, but that technology is available for the roadside screening devices. Certainly, to my understanding, a change in the legal limit would not have any impact on the type of equipment we would use today.
    It's not a big deal to calibrate it?
    No, because it's consistent from zero right up the scale.
    And in terms of California, is it the kind of equipment they use?
    Yes, they have a device that they use--we actually have information about it on our website. They've been doing it for a while. They appear to have success with it, and it certainly shortens the time that it takes.
    Again, a lot of jurisdictions use automated paperwork. There are several jurisdictions down in the U.S. that are doing it, and they can cut their time to half an hour. That's relative to two or two and a half hours, so it has a big impact.


    That's a big savings system-wide if you apply it across the board.
    Ms. Robertson, I was curious that it was less than half--40%--of all prosecutors. It was 11% of defence, and you have to take a grain of salt with that, because they have a different perspective. But I was really surprised at the prosecutors. Is it because of the reasons you're outlining here that they just...? Maybe you can give it in your own words. I found that surprising.
    I think it's because they already feel as though they're fighting a losing battle. In some jurisdictions you can have pleas to non-alcohol Criminal Code offences or to non-Criminal Code offences. You see them particularly frequently out in British Columbia. They've got huge caseloads, they don't really have a lot of time to prepare, and as I said, they're not convicting a lot to begin with. So I think that has a lot to do with it. They see the implications and what it is going to mean for their own caseloads and their own workloads if it is 0.05.
    I have one last question. What about law professors, who would have the time to stand back and look at the whole system and the impact? Is there an opinion from that group?
    There is no opinion that I'm aware of.
    Thank you, Chair.
    You're welcome.
    Mr. Harris, you have the last question.
    Ms. Robertson, I think I heard you correctly when you said that in your work there was a consensus among the legal community or the judges about how we might be able to fix some of these problems.
    That was in the United States, in the research we did there.
    What were some of the most predominant solutions that they put forward?
    One was streamlining the system when it comes to paperwork requirements, and better communication and cooperation. You frequently see prosecutors and police officers working on the same case who have never spoken to each other. Records tend to be an issue. There was the increased use of technology; I don't think anyone thinks that technology is a panacea, but it can do a lot to help us do our jobs better.
    In the States, did they have the problem with the recognition of certificate evidence not being given enough priority in the crown's point of view, as we had it here?
     I don't think that's as big a concern in the U.S., but they do have concerns about expert testimony, as we do in Canada. Trying to get an expert is certainly an uphill battle. I was quite surprised in doing the work in the U.S. and then looking at our results in Canada. It seemed that even though our systems are very different, there is a vast amount of similarity.
    I've spent the last nine years working with the different practitioners in Canada and the U.S., and I can honestly say I've never met a practitioner who was not concerned about impaired driving. They're all concerned; they're just looking for ways to be more effective in what they're doing and to keep that specific and general deterrent effect out there.
    Until we get it right.
    Thank you.
    Thank you to all the witnesses. We appreciate your testimony. It's going to be valuable for our committee, I know.
    Now may we have a motion to adjourn? Thank you.
    The meeting is adjourned.