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Standing Committee on Justice and Human Rights



Wednesday, May 6, 2015

[Recorded by Electronic Apparatus]



     Ladies and gentlemen, I'm calling this meeting to order. It is 3:30.
    Today we're at meeting number 74 of the Standing Committee on Justice and Human Rights. According to the orders of the day pursuant to the order of reference of Wednesday, October 8—that seems like a long time ago—we are studying Bill C-590, an act to amend the Criminal Code in regard to blood alcohol content, which was referred to committee.
     Today's witness for this bill is the mover of the bill, Mr. Hoback, who is the MP for Prince Albert.
    Mr. Hoback, the floor is yours for 10 minutes.
    Thank you, Chair.
    Thank you, colleagues, for being here this afternoon to talk about something that's very serious. It's dear to my heart but also dear to many Canadians across Canada. It is about the ability to get drunk drivers off the road and to actually put in place better legislation to do that.
    As for what Bill C-590 does, it is an act to amend section 255 of the Criminal Code to establish more severe penalties for offenders who have a blood alcohol content of twice the legal limit. In this bill, we're not going after those who have had one glass of wine or are maybe in and out of the 0.05 or 0.08, depending on what province you're in. This is actually going after people who are two sheets to the wind: they are seriously drunk and they're getting into a motor vehicle and doing great harm when they do that.
    As I said when we first discussed this in the House, I am very open to ideas on, suggestions for, and amendments to this bill. This is not just my bill. In a lot of ways, this is your bill. I look forward to the committee making this bill a stronger bill by doing just that, so that the result is something we can take pride in and have some confidence in, knowing that we've made the roads, streets, and waterways in Canada safer.
    What we'd be doing is that offenders who are at twice the legal limit would be “liable to imprisonment for a term not exceeding 10 years”. Penalties for the first-offence conviction will now result in a minimum fine of $2,000 and a minimum 60-day prison term. In the case of a second or subsequent offence, the minimum term of imprisonment will be 240 days. Those with a blood alcohol content over the legal limit who harm or kill someone will be additionally penalized with a minimum fine of $5,000, a minimum of 120 days in prison for a first offence, and a minimum of a 12-month term of imprisonment for a second or subsequent offence.
     To share some stats, according to Statistics Canada, almost half of fatally injured drivers had a blood alcohol content of more than twice the legal limit. This level of impairment has had a devastating impact on our youth, as they make up 31% of alcohol-related deaths. I don't think there is one person in this room who can't relate to that statistic. When I went to high school, we heard of different schools throughout the district that saw youth killed before their prime because they were drinking and driving.
    The June 2009 report by the House of Commons Standing Committee on Justice and Human Rights on alcohol use among fatally injured drivers indicates that the bulk of impaired driving problems lies with those drivers having a blood alcohol content over the current Criminal Code BAC of 0.08. That's a startling fact, when you think about it. This isn't about somebody who maybe had one little drink too many and is over 0.08. We're seeing very severe consequences when they get over that 0.08 or 0.05 factor, depending on where you are.
    Among the tested drivers in Canada, 62.9% showed no evidence of alcohol, and that's a good sign; 37.1% had been drinking, and that's a bad sign; 4.3% had a blood alcohol content below 0.05; 2.6% had a blood alcohol content from 0.05 to 0.08; 9.4% had a blood alcohol content of 0.081 to 0.160; and 20.8% had a blood alcohol content over 0.160.
    In other words, 81.5% of the fatally injured drinking drivers had a blood alcohol content over the current limit of 0.08 up to 0.16. High blood alcohol content drivers, such as those with a blood alcohol content over 160 milligrams per 100 millilitres of blood, are drunk. There's no question that they're behind a wheel and there's no question that they should not be behind the wheel. Your friends will recognize that at this level of alcohol.... These are the people who are doing the most harm on our roads. Of course, this represents a disproportionate number of fatally injured drinking drivers.
    Drivers with a high blood alcohol content represent about 1% of the cars on the road at night and on weekends, yet they account for nearly half of all drivers killed at those times. That's 1%, but half the deaths. Limited resources would seem to be best deployed to target the 81.5% of the fatally injured drinking drivers who are already above the 0.08 threshold. The worst offenders are already driving with a blood alcohol content two or three times the current limit. Drivers with the highest blood alcohol content constitute the most significant danger on the roads or waterways, and they should still be a priority.
    Section 255.1 of the Criminal Code states that if an impaired driving offence is committed by someone whose blood alcohol content exceeds 0.16 at the time the offence was committed, it will be an aggravating factor upon sentencing. This reflects the fact that driving with a high level of impairment—over 0.16, or double the current legal limit—is generally indicative of a serious problem.


    Even if a driver with this level of impairment is being detected for the first time, it is likely that this is a hard-core impaired driver. In other words, the only thing we don't know is how many times he's been drinking and driving before they caught him. Of course, this is due to the fact that rarely is that time the first time he has driven while under the influence of alcohol.
    In Saskatchewan we've experienced an increase in police-reported impaired driving incidents in each consecutive year from 2006 to 2011, according to Stats Canada. Furthermore, in 2011, Saskatchewan had the highest number of such police-reported impaired driving incidents, at almost 700 per 100,000 people, among all of the provinces. In other words, over the course of five years, the number of police-reported incidents has increased from around 500 incidents to 700 per 100,000 people.
    Bill C-590 targets drivers with a high blood alcohol content by increasing specific penalties for such drivers. The goal is to prevent these drivers from reoffending, since high-risk offenders cause the greater number of collisions, with higher fatality rates, and are more likely to be repeat offenders.
    On a personal note, this became an interest to me because right next to my office in Prince Albert was a guy by the name of Ben Darchuk. He ran Ben's Auto Glass and employed roughly 10 to 20 people in his business. Ben had just bought a new boat, and on May 20, 2012, he was going to head up to Christopher Lake for the long weekend. His family had already gone up to secure a camping site. He hooked up to his boat and was heading up to the lake to meet with his family. He didn't get there. He was hit by a 22-year-old who was over 0.08 and who was also on cocaine. Ben was killed instantly. Ben is survived by his wife Leanne and two daughters and a son. He never got a chance to use that new boat.
    You can look at that impact on Prince Albert and at impacts around the country, where everybody has an example like that. I can call on another example of a lady in Prince Albert who was pregnant and was killed by a drunk driver. She was 17 years old. They managed to save the baby.
     There are too many examples of this type of scenario happening on our streets and on our roads. I don't want to say just “our roads”, because it's also our waterways. I want to stress that. A boat is a motor vehicle. This is not just about cars. A lot of people think they can have one or two beer, or five or ten, and go on a boat or a Jet Ski and think they're safe. They aren't.
    What we're trying to do here is very simple, and I look forward to amendments to make this bill even better. The goal is to get these people off the road. We need to do that. We have to make sure that they don't do harm and get the proper counselling and treatment so they don't reoffend.
    Mr. Chair, I'll end it there. I'll entertain questions.


    Thank you for that overview of your bill, Mr. Hoback.
    We'll start with questions from the New Democratic Party.
    Madam Boivin, please.


    Thank you, Mr. Hoback.
    This is interesting. I will reiterate how important the bill is, as it tackles a serious issue. I think it is a scourge too. We have to try to discourage people from doing things like that.
    With all the awareness campaigns out there, I don't understand why, in 2015, people—I'm pulling my hair out trying to figure out what we can do to make them understand—
    I know that you are focusing on the most serious cases. I practised criminal law, so I agree with you: a blood alcohol level of 0.16 means someone is pretty drunk.
    In January, in the riding of Gatineau—which I represent—50 drivers who had been arrested for driving while impaired were discharged because of unreasonable delays. Everyone was shocked by that news.
    Parliament may pass legislation, but there are other major things involved, including access to justice. Justice can also be faster. We need more judges and crown prosecutors so as to avoid passing legislation that seems tough, but then having people wake up and see that 50 drivers have been let go. I am not saying they were all guilty. Nevertheless, 50 people were charged, and they were discharged because their trials could not be held within a reasonable timeframe.
    I'm glad you explained what gave rise to the bill. One of my concerns is about increasing the minimum sentence, which is already established in the Criminal Code, in the sections we are dealing with. There is a theory out there that the problem is due to the fact that minimum sentences are becoming the standard. It is not uncommon for the Crown or the defence to stick to minimum sentences. We have to keep in mind the Nur ruling, which held that the mandatory minimum sentence must not be exaggerated, as it might not pass the test. Courts often stick to the minimum sentences.
    Is it not dangerous to set a minimum sentence, instead of increasing maximum sentences and leaving it to the court's discretion to rule based on the case and the individual's criminal record?
    I am surprised to see that MADD Canada is not supporting your initiative. I don't know whether you know why that is, but perhaps you could explain it to us.
    Have you looked into the legality of increasing mandatory minimum sentences in light of the Supreme Court of Canada's recent decision on those sentences?


    Mr. Hoback, the floor is yours.
    Thank you.
    First of all, thank you for your questions. I appreciate them.
    It's interesting to talk about minimums and the whole content surrounding minimums. When I talked to some of the different driving instructors, I asked what would have the most impact in getting that message not to drink and drive out to young people when they're learning how to drive. They said that it's when you can tell them what is going to happen as a result of drinking and driving.
     First of all, we're going to detect it, so we have to make sure that resources are in place to detect it. Second, it's inexcusable because of time restrictions to have 50 people not go through the system and not have their day in court when they have already been charged. It is something that I think the province will have to deal with in how they fund their courts. I can't comment on that. I don't know a lot about it, so I'll leave that alone.
    What I will tell you is what these driving instructors are telling me. They're saying that when you can go in there and tell students what the impact is, when you tell them about the damage and the harm they will do to people and their families.... For example, we've seen schools at graduation time take a damaged car and put it on the front lawn just to shock students at graduation about what happens when you drink and drive. They're saying that if they have the ability to explain to the students the consequences, the students will take a second look and say that it's serious.
    Another comment that came out when I was discussing it with MADD is that they actually would like to see higher minimum sentences. They'd like to see them be a lot more. In fact, their concern is that they're only going to get one kick at this and we won't get enough for it. I can understand why they're coming forward. We have to balance a combination of things. Again, I will take amendments from this committee. I'm wide open. What I feel is that this is just a good place to start.
    When they're talking about marijuana and driving, and drugs and driving, that's another concern. With the fact that there are some tests coming into play in the future, MADD says that suddenly students realize that if they have a joint somebody is going to detect it, so all of a sudden they say they don't want to do that. The fear of the consequences of being caught, the fact that they can be caught, is having an impact on them and they're saying that they don't want to do it. That's the goal in this case.


    Are you so sure about that? I've read, as I'm sure many of us around the table have, about these cases of people who are recidivists, who are hard-core cases. They don't get it. People are in shock sometimes to see the small sentences these people are getting. Again, often they have antécédents judiciaires, but the records are not updated, so sometimes I find we're moving ahead with certain laws but the whole system cannot sustain it.
    Sometimes people will ask how this guy, who they know has been in front of the courts five times, is only getting that sentence. Except that the four other times were not in his record because the RCMP doesn't have the time or enough resources to input the records and so on, so I'm not so sure that these guys will get it because of this legislation. I was a bit curious to see if you have looked into it and have put some pressure where pressure should be put, and not necessarily on the provinces, because this is totally federal. It's the RCMP. There are a lot of things that have to go together before this can become a deterrent.
    Your answer, Mr. Hoback?
    Again, you have to look at the other part of the equation too, at the victims, who in this case are Leanne and her children. They're looking at it and they want to see fair consequences for the action. You can't replace Ben. You never will. But when you hear that the person gets two years less a day and only a hundred-dollar fine, that's not acceptable either. You have to find that balance.
    Again, I'm just telling you what I'm hearing in talking to different driving instructors and to people who say that this would have an impact in reducing the amount of drinking and driving.
    Thank you very much for those questions and answers.
    Our next questioner, from the Conservative Party, is Mr. Dechert.
    Thank you, Mr. Chair.
    Mr. Hoback, thank you very much for being here and welcome to the justice committee.
    I want to thank you for bringing this bill before the House of Commons. I think you've really put your finger on something very important. It's an area of the criminal law that does need updating. You mentioned the tragic circumstances that took the life of your constituent Ben and took him away from his family. There's no doubt that this happens many times across Canada each and every year.
    You also mentioned that you've had some consultations with MADD—Mothers Against Drunk Driving—in particular. Can you tell us what specifically the MADD organization or any other organization you consulted with told you about this issue of people who have serious drinking problems and are driving well above the limit, and what they told you about the penalties they thought were appropriate?
    Thank you for the question.
    That's probably something that we should actually ask MADD to talk about in regard to exactly what their positioning is on this. But the reality is that when I discussed Ben.... In fact, as a result of Ben's accident, there is now a MADD chapter in Prince Albert, because the lady who came upon the scene at the time felt something needed to be done to bring awareness to her students in Prince Albert in regard to this issue.
    As I said before, they would like to see even harsher penalties in this situation and a stronger message being sent through the courts, not only on alcohol but on drug-related situations where they're using drugs and driving.
    It's interesting to talk to MADD, because you're talking to people who are very emotionally involved in this scenario. They've experienced something horrible first-hand in most cases, and you can see it in their faces. You can see it in their passion and their speech. They feel that they need something done on this file.
     Are there things we can do to improve this bill? I hope we have some amendments that will make it better, I really do, but we still have to balance the obligations we have to the taxpayers, the obligations we have to constituents and everything else, and what MADD is asking for. I think I'll leave it there.


    You mentioned, Mr. Hoback, the sentence that was issued by the court in the case of your constituent. It sounded woefully inadequate to me. I'm sure you can find similar situations and other cases across Canada where the average person looking at the facts of such a situation and seeing the sentence would wonder what the heck happened. How could the perpetrator of such an awful and tragic incident receive such a light sentence?
    When that kind of thing happens, what do you think the impact on the public is in regard to whether or not justice is being served?
    I know that in Prince Albert when we lost Ben.... He was a very well-respected business owner in the community, so let's just go through it from the community perspective and from what I heard around coffee row and in talking to people throughout the constituency. First of all, they couldn't believe it. They just asked if that was the best we could do, if that was it.
    Look at the consequences of what happened. First of all, a wife lost her husband, the kids lost their father, employees lost their employer, and the community lost a great supporter—and that's just in the immediate area—all based on somebody being over the legal limit and having a little bit of cocaine in their system. For that, they got less than two years and a hundred-dollar fine. Where is that fair? I don't think you could ever say that anything is fair in that scenario. This definitely is not adequate. It definitely wasn't adequate enough to prevent this guy from getting behind the wheel and driving.
     Do you think it causes people to lose faith in the Canadian justice system when they see those kind of things?
    Yes, I would agree with that.
     When they see that scenario, they look at it and say, “What's the use?” They ask how it can be this way. That's when they come to us, as legislators, and say to us that we have to improve this, we have to make it better, and we have to deal with this. That's what I'm intending to do here.
    You mentioned that you're open to some amendments.
    You bet.
    I think there is some fine-tuning that could be done here. We'll come back to you with some suggestions.
    I'd be happy to look at those, for sure—from all parties.
    Thank you for those questions.
    Our next questioner, from the Liberal Party, is Mr. Casey.
    Thank you, Mr. Chair.
    Mr. Hoback, you said that everyone has a story that is connected to a tragedy from drunk driving. Mine is about Kristen Cameron. Kristen Cameron was a neighbour of mine who was a very promising young hockey player. She went to the U.S. on a hockey scholarship, had tremendous success, and was actually an All-American. She was rendered a quadriplegic by a drunk driver.
     I absolutely agree with what your intentions are, but I'm not convinced that the answer to every problem that tugs at our heartstrings is mandatory minimum sentences. I guess that's where we differ, although I don't for a minute doubt the sincerity of your intentions.
    However, I want to start with a more practical problem. I'm not sure how many people here, as well as you, have had an opportunity to speak to those who try these cases: prosecutors and defence counsel. What you would find if you were to do that is that even under the law as it presently exists, a practice has grown up, through jurisprudence, or through professional courtesy, or through some other protocol, whereby the prosecution will notify the defence if they intend to rely on subparagraph 255(1)(a)(ii). That's the section that has a minimum of 30 days for a second offence.
     If they're going to rely on that, they notify the other side. It's quite routine. When they don't notify the other side, they proceed with their submissions on sentencing, and somebody with a second offence will get a penalty of less than 30 days, more or less by agreement.
    My first question is, are you aware that the practice exists within the criminal courts in Canada? My second question is, have you have considered that practice in your bill? My concern is that if that is the practice presently used to get around a minimum today, your bill will be rendered ineffectual if that continues once the code is amended.


    First of all, thank you for bringing this to my attention. I'm not aware of it. I appreciate your bringing this forward. Again, that's why a committee is such a great venue to air situations like what you're saying, so that we can maybe find a suggestion or amendment that will prevent that from happening.
    Again, what Canadians are expecting out of this committee is a piece of legislation that will deal effectively with people who drink and drive.
    Another practical problem that strikes me with the bill is that there is a mandatory minimum for someone who has a blood alcohol level of 0.16 or higher, yet that mandatory minimum doesn't apply in the case of a refusal.
    A better course of action for someone who, as you describe it, is “two sheets to the wind”, is to refuse and then be assured of avoiding the mandatory minimum. Had you considered that and are you comfortable with that as the result of the bill that you proposed?
    That did come up after the bill had gone through the House, so that's why I'm hoping one of the amendments will address that scenario. The first time, I did not consider it, but as I said, it was brought up in the debate in the House and identified there. Again, that's where the committee can do great work.
    What I've provided here is a shell for the issue and the topic. I'm not a legal expert. I worked with the Library of Parliament to do the best we could with what we had to get something workable. I trust the people in this room to make it something that is impenetrable, so that it's a good piece of legislation that will actually have the effect we desire.
    I expect you are well aware that there are numerous pieces of legislation that have been introduced and passed by your government that have been found to be unconstitutional before the courts, and that we have often criticized your government for introducing private members' bills that are unconstitutional so as to avoid the necessity of the constitutional review under section 4.1 of the Department of Justice Act.
     My question for you is, have you obtained an opinion with respect to the constitutionality of the mandatory minimums contained in this bill?
     At this point in time, no. Of course, that came down between the time when it went through the House and being here today.
    Thank you.
    Thank you very much for those questions and answers.
    Our next questioner from the Conservative Party is Mr. Calkins.
    Thank you very much, Mr. Chair.
    First of all, to my colleague Mr. Hoback, let me say thank you very much for bringing this forward. This is a very timely piece of legislation. I don't know too many people in Canada who haven't been affected by impaired driving or who at least know somebody who has been affected by impaired driving.
    I was hit by an impaired driver in October 1993. I was hit from behind by a gentleman driving a five-ton delivery truck. My head went through the back window of my pickup truck because I was launched into the intersection. I had stopped to let a little old lady cross the road. This individual had been counselled, as I found out after the fact, by defence lawyers. When I approached him and said that we needed to call the police to the scene, he wanted to simply pay for the damage to the truck and call it a wash. I could tell he was impaired at the time.
    He fled the scene. He drove to the Transit Hotel in Edmonton, Alberta, and started consuming alcohol, thereby disrupting the chain of evidence. This is what happens with people who are experienced with respect to impaired driving laws. They know that they can be.... I think they are counselled by somebody who knows how to counsel them in that defence, and these are the kinds of things they do.
    I am of the opinion that we should be adding a clause to the Criminal Code dealing with vehicular homicide. I know that we have other colleagues in the House of Commons who are thinking of looking at that kind of legislation. I'm wondering what your opinion is on supporting something like that. I could easily have been killed in that particular incident.
    Insofar as your bill is concerned, the changes you're proposing here are obviously meant to bring more certainty and a sense of justice to the sentencing on these convictions, but are you at all concerned about the fact that sometimes we can't even get the convictions because some of the issues surrounding impaired driving are so difficult to prove and sometimes the evidence is so hard to prove in a court of law? It's one of the most onerous charges that a law enforcement officer, a police officer can.... It consumes your whole day and then some, especially when you get to court. Is this going to make the difference that you really expect it to make?


    Again, there are a lot of things that I think we could be doing to make a difference. This is just one of maybe a number of things that we should be looking at as a bigger total picture to deal with this.
    Those are the frustrations I hear from my constituents. On the example you've given me where somebody knows how to play the system or has a smart enough lawyer who knows how to play the system, I've heard different examples of that.
    Is there anything in this legislation that's going to prevent that? At this point, no. Is there something we can do in the future to do that? Again, I rely on this committee to look at those types of opportunities, because people are upset with the gamesmanship that's going on with regard to drinking and driving.
    As for the RCMP factor, they have to recognize, too, that if this person is at twice the legal limit it's worth their time and effort to proceed with this and go through the courts, because this person will do it again and again until you stop them or until they kill somebody or hurt somebody. That's why you need to have the legislation here to go after the people who are at twice the legal limit.
    This isn't about a casual drinker who made a mistake. This is somebody who is two sheets to the wind and driving. They need to be dealt with, and the RCMP need to take that seriously. Whether it's the RCMP, city police, or provincial police, regardless, they need to deal with it.
    As a former law enforcement officer, I can say that once you get into certain court situations it becomes so frustrating. You go through all the time and effort to charge somebody, go through the process, do the paperwork, and work with the prosecutor's office. When slaps on the wrist are handed out, it sends the wrong message not only to the public but to the crown and to the law enforcement officer.
    I want to commend you. I'll be supporting your legislation as it is or with amendments.
    Thank you for bringing it forward.
    I'll share whatever time I have left with Mr. Goguen.
    You have a couple of minutes, Monsieur Goguen.
    Thank you very much for bringing this forward.
    There is quite a distinction between an occasional drinker and a habitual offender who is over the double, and I suspect the statistics you cited were what motivated you to bring this in at 0.16. I wonder if you've made any studies or comparisons to laws in the United States that deal with this by making a distinction with the doubled limit there or in France or.... Is this unique or is it something you've seen on other places?
    Again, the resources weren't necessarily there to compare it to other countries.
    That's fair enough.
    It comes back to what our constituents are asking of the Canadian legal system in regard to what they want to see and what they expect. I talk to constituents and I talk to people here in Canada, and this is a good starting point. If there's more we can do for it, that's fine.
     Well, you did do some research, certainly, on the number of convictions where the people are well over double. You did recite that, so thank you for your efforts.
    Exactly, and again, when you look at those statistics, they point to the need for something to be done.
    They're pretty telling.
    Thank you.
    Thank you for those questions and answers.
    Our next questioner is from the New Democratic Party.
    Madam Péclet.


    Thank you very much, Mr. Chair.
    My sincere thanks to my honourable colleague for appearing before the committee.
    You have given us a lot of statistics, which vary from province to province and from territory to territory. I apologize if you have already provided this information, but I would like to know what proportion of those convicted of this offence are young people. Do you have any statistics on age groups?


    No. Unfortunately, I don't.


    As I was saying, it varies from province to province. Based on Statistics Canada data, we have to realize that young people between the ages of 19 and 24 are in an age group that will be very affected by this bill. In some provinces, the age can even go down to 16, depending on what the legal driving age is.
     Don't you think that a mandatory minimum sentence for an 18-year-old might be a little much? Do you really think it is justified if an 18-year-old has not received the necessary education and prevention? He or she may have unfortunately made a mistake, or not, but if a minimum sentence was imposed, the court would no longer have the possibility to decide.
    I would like to hear your thoughts on that, please.



    Well, I appreciate the question, because it's an excellent question. Again, that's why the 0.16 aspect of this legislation is there. As you will remember, I was talking earlier about the ability, when you have minimum sentencing, for the driving instructor or the people who are teaching students to drive to really drive home the impact of drinking and driving. Look at the advertising campaigns that are going on around Canada. Our young people are aware that they should not be drinking and driving.
    If there is somebody who is at twice the legal limit, whether they're 16 or 19, they're well over, and there's no question about it: they should not be driving. Their friends know that and they know it themselves, yet they still choose to do that. If we don't deal with them appropriately, they will do it again and again. There's nothing worse than somebody young killing somebody else on the road. If we can have an impact and actually correct that measure for the young, hopefully when they go through the process and pay the piper, for lack of better's a small price to pay for not killing somebody on the road.
    I understand, but subsection 253(1) concerns only those who are at 0.08. If it's a second offence, it's 30 days of jail for someone who could be 18 or 19. You're telling me that you want to correct their behaviour by sending them to jail. I think that would be unjustifiable, and I think there are other ways—
    No, I disagree with that. The reason I disagree is that this person, first of all, has been educated on the consequences, so it's no surprise. They know this. If they're questioning the fact that they are close to the limit, there's no reason to be behind that wheel. It's no surprise.
    There are consequences, and you have to make sure they understand that there are consequences. If they still choose to break the law, then they break the law and they have to pay for it, and if it's 30 days or two years, that's what it is.


    I would like to know whether you have reviewed the case law, which indicates that the sentences handed down by courts have been relatively higher than the minimum sentences set out in the bill. I am not talking about a specific age group, but about judgments of the situation, the individual and the facts involved in the case. If a minimum sentence was imposed that was weaker than the sentences normally handed down by the courts, it could have the opposite effect and result in the case law trend going down instead of up.
    Have you looked at what sentences were normally imposed in these kinds of situations? What is the difference with the sentences you are proposing in your legislation?


     Again, you have the minimum sentencing. That's the minimum. What you're telling me is that at present they're actually giving out judgments that are higher than that minimum. I don't see that ever changing. Why should that ever change? Why should it fall back to the minimum? If the judge is sitting there and knows this is the minimum, and he feels that this character, because of what he or she has done, should not be at the minimum, he still has the ability to go higher. We haven't restricted the upper end.
    But what we've done is make it very clear to people who think they're going to drink and drive, or who are taking driver training or are in any other such scenario, that there are consequences, and that this is the minimum, that it could be worse. But again, the goal here is to make sure that these people, when they're at 0.16, aren't out there next weekend and the weekend after, because they're going to kill somebody. You have to deal with them.
    Thank you very much.
    Thank you for those questions and answers.
    Our final questioner is from the Conservative Party.
    Mr. Wilks.
    Thank you, Mr. Hoback, for being here today.
    I'd need probably more time than this day has to offer to give my conclusions on impaired driving, but I'll leave it at this. One of the things that I think would be good for this bill—and I understand you're open to amendments—is to look at having a federal ignition interlock program. These programs are within a number of the provinces, but we don't have one federally. This may be an opportunity to look something, because it's a significant frustration for police when they have to continually go after a reoffender who may know their driver's licence has been suspended and they're not supposed to be driving, but they're driving anyway.
    Would you be open to some type of amendment to that effect if it is in fact possible to do that?


    I agree with you on that. Again, the goal here is to take these people off the roads, so if this is one way to do that, to me it's a small price to pay to have that put into somebody's vehicle to keep them off the road.
    I still do drug and alcohol talks in the schools. I give some of my experiences to the kids, and I believe that most teenagers today are well informed of impaired driving laws. We've come a long way since the 1970s and 1960s when it was just about accepted behaviour. We've come a long way.
    One of the other things that I think is important—and this goes to Ms. Péclet's statement—is that I don't think the sentence would be that harsh. I think that if you step into a vehicle and you're at 0.16 or more, you know you're at 0.16 or more. There is no question about it. The highest BAC reading that I ever collected as an RCMP officer was 0.43 in Kitimat in 1982. I will never forget it. He was at 0.43 and he was driving. The legal limit is 0.08. He was still alive.
    An hon. member: He should have been dead.
    Mr. David Wilks: Well, technically you're supposed to be.
    But the other issue—and Ms. Boivin mentioned it, Chair—was the expediency of getting criminal records updated through CPIC. That can be problematic, but I think it's something that the police have to work at, as well as the courts. I don't know what we could do in that case, but it is problematic. I truly believe that one of the things we could do is to institute a federal ignition interlock program. I think that's probably one of the best things we could do.
     I have nothing further to say.
    Do you want to comment on anything he had to say?
    Maybe just in closing, Chair—
    There's going to be one more question for you.
    Is there?
    Madame Boivin, you wanted a couple of minutes, so go ahead.
    I'm just curious. Again, being practical, aren't you afraid that somebody who drinks so much might decide not to do the test? Because they'll try anything, and I think you put your finger on it. They have all of the tricks. Usually people, unless it's really bad luck, and normally if it's bad luck the person knows or should know or whatever.... But these guys who we're really trying to get off the roads, those who are a public danger—and there are many of them—know all of the tricks in the book.
    When I look at Bill C-590, I can picture somebody recommending to them to just not blow in the alcootest, because they're better off with just a refusal. They don't go into the whole system.
    I understand where you're coming from. We all have examples. Again, I repeat how much I despise that there are still people who drink even a glass and get behind the wheel. At the same time, we have to be practical, and I'm not sure this bill going to do exactly what it's supposed to do. I'm not sure we'll be able—all brilliant minds that we are around the table—to amend it to what you're trying to do. I see so many loopholes in different aspects that I'm afraid that it won't change much. That's my point.
    Have you looked into the fact that there might be a possibility that people will say from now on to just refuse to blow in the alcootest and you'll be better off?
    Again, it's something that did come up when we were discussing and debating it in the House. I think that as the committee identifies loopholes, you have the opportunity—I'm giving you my full blessing—to close those loopholes.
    What I go back to is that my constituency and your constituents want to see this addressed. They want us to come forward with a good piece of legislation so that there aren't the loopholes, so that it has the intended consequences for the people who are convicted under the act. Again, if you have some ideas on how to close that loophole, I'm all ears, and I'm sure the government is too.


    So you wouldn't answer that it's outside of the scope of the bill or anything?
    Again, I just want a good piece of legislation.
     I want to make sure that when we move forward at the end of the day we can all take pride in what we've put forward and take comfort in knowing that we've saved lives and have taken these guys off the road or the waterways. I want to reiterate that there is the issue of the waterways. A lot of people think it's just about drinking and driving. Waterways are also a hazard that need to be addressed.
    Thank you very much.
    Thank you, Mr. Hoback, for coming today and talking to us about your private member's bill. There are no witnesses that have been called on this bill.
    We have the Minister of Justice for main estimates on Monday for the first hour. We have set aside the second hour to what I was going to say is clause-by-clause, but it's “clause”. I understand that there are a number of amendments coming.
    Committee members, make sure you get those amendments in, if you can, so that members of other parties can have a look at them. We will be dealing with this on Monday because I have to report it back to the House based on the extension that has been granted.
    Yes. Time is of the essence now because of the coming summer season.
    Thank you very much.
    We will suspend while we set up for our next meeting, which we're going to start right away, before 4:30, because all of the participants are here.



    I'm going to call this meeting back to order.
    Pursuant to the order of reference of Friday, November 28, we're dealing with Bill C-35, an act to amend the Criminal Code in regard to law enforcement animals, military animals and service animals.
    We've had the minister present on this, we've had witnesses, and now we're doing the clause-by-clause. We are joined by our officials from the Department of Justice.
     Thank you for joining us today.
    If there are any questions about any of the four clauses—I believe there are four—as we go through them, let me know, and we'll have the officials respond. There are actually five amendments, but the amendments from the Green Party are identical, and Mr. Hyder is here to speak.
    You can sit at the table, Mr. Hyder.
    We will be removing Ms. May's amendments and going to Mr. Hyder's because he's here to talk about them. Just so you know the procedure as we go forward, we'll give Mr. Hyder a minute or so to talk about each of his amendments, and then we'll vote.
    Pursuant to Standing Order 75.1, consideration of the first clause, the short title, is postponed.
    (On clause 2)
    The Chair: We have two amendments to clause 2.
     Ms. May is not here, so it's out of order, in a sense.
     By the way, all amendments that have been proposed are admissible .
    Mr. Hyder, the floor is yours to talk about the amendment you're proposing to clause 2.


     Thanks very much, Mr. Wallace. I'll be Mr. Hyer today, with no “d”. There is no “d”.
    I'm sorry, Mr. Hyer.
    Amendment PV-1 removes the quote “if a law enforcement animal is killed in the commission of the offence”, etc. The intention of our amendment is to remove the mandatory minimum sentence for this bill. The Green Party is against mandatory minimums, both in principle and in practical practice.
    Mr. Hyer, I think you're at the wrong amendment, are you not? We're on clause 2.
    Oh, yes. Let me refer to my brains—
    That's no problem. It's easy to do.
    The floor is yours. We'll start over. I'm saying your name correctly, and the floor is yours.
    Thank you very much, Mr. Wallace.
    This amendment changes the wording in Bill C-35 in clause 2 from “shall” to “may”, as you see, and it adds the words:

events, if the court considers it to be necessary for the proper administration of justice.
    Why? This bill would introduce a mandatory consecutive sentence, a practice opposed by many experts in the legal field. Mandatory consecutive sentences are simply bad judicial policy, according to the Canadian Bar Association and others.
    As the Canadian Bar Association has pointed out, judges are required anyway to abide by the general principle of proportionality in sentencing, an impossible task if they're also required to impose mandatory minimum sentences. The combination of mandatory minimums and mandatory consecutive sentences is particularly worrisome and seriously threatens judicial discretion.
    Thank you, sir.
    That is amendment PV-2 in the distribution that was sent out to you. It is Mr. Hyer's motion and is an amendment to clause 2.
    Are there any further comments on that amendment?
    Mr. Goguen.
    We're opposed to the amendment. The essence of this bill, the important aspect, was to make this thing exactly that—consecutive—and to make it a mandatory consecutive. This of course heightens the importance of the jobs done by enforcement animals and they deserve that protection. The cost of training is excessively expensive. Not every animal is suited to that, and it's clear they deserve that protection. That was abundantly evident from the evidence that was presented before us.
    Thank you very much.
    Is there anything further on this amendment?
    (Amendment negatived [See Minutes of Proceedings])
    (Clause 2 agreed to)
    (On clause 3)
    The Chair: Now we are on clause 3. We have a number of amendments.
     We are going to start with the amendment from the Liberal Party.
    Mr. Casey, the floor is yours.
     Thank you, Mr. Chair.
    Colleagues, this is an amendment that formed the basis of my questioning of the witnesses that are here and to the other witnesses. The bill at present contains the words “wilfully and without lawful excuse”. It is, if you will, a qualifier on what the crown has to prove, or extra elements that the crown has to prove, in order to secure a conviction.
    Within the code, there is already a legal excuse defence. That legal excuse defence is found in subsection 429(2), and that legal excuse defence applies to this bill and this clause. That legal excuse defence in subsection 429(2) says:
No person shall be convicted of an offence under sections 430 to 446
    —and this fits within that window—
where he proves that he acted with legal justification or excuse and with colour of right.
    So that legal excuse defence presently exists. There are words in this section that also purport to give a legal excuse defence. We asked the officials about this. When they testified, I asked them, does the legal excuse defence that is inserted into this act widen or narrow the defence in law that already exists? Their answer was neither, so my question is, why do we need it? If it doesn't make the defence more available or less available, these words, I would submit to you, are simply surplusage and shouldn't be there. That's what this amendment does: it takes them out.
    The difficulty with leaving these words in, I would suggest to you, is that you have words in the statute that according to officials aren't designed to make the defence more available or less available. They're designed to be consistent with what's already in the code, but it uses different words.
    What's going to happen is that when someone is charged under this section you're going to have a massive debate among the lawyers, the judge, and the court of appeal as to whether this person comes within the words that are in the act now—whether the person comes within the words of the lawful excuse defence that was already there—or whether the person comes within the words of both and what impact this has on the person's guilt or innocence.
    Given that these officials have said to us that those words were not designed to change the legal excuse defence, we don't need them. I would urge you to adopt this amendment that will remove these words, which by admission weren't designed to change the law but were intended to be consistent with the law, albeit using different words.
    Thank you.


    Thank you for that explanation of your amendment.
     We have a speakers list on the amendment.
    Mr. Calkins.
     Thank you, Mr. Chair.
    I tried to follow Mr. Casey's argument for this, and while his argument wasn't hard to follow from a logical perspective, I believe the clause as it stands right now is, from my perspective, best left alone.
    Mr. Casey's logic is that if it's surplus and if it doesn't change anything, there's no point in changing it away from the legislation that currently exists or as it's currently written, but I think that for greater certainty.... I've been in front of courts before, and there are times when the crown, or defence lawyers, or other people may not read the inclusivity language that might be present in other parts of the code. These kinds of things can get missed, so for greater certainty, I think, this clause, or this piece of this clause, or this wording in this clause is fine the way it's written. I would like to see it there.
    I would hate to see a misinterpretation by a judge, a crown prosecutor, a defence lawyer, or by somebody else for that matter, if somebody is driving a car down the road, an officer unleashes his dog, and a perpetrator runs across that road with the dog in pursuit, gets hit by the car, and is maimed, or killed, or whatever. That's inadvertent. There was no intent. There was no wilful or lawful excuse in doing, so or there was no wilful intent. I think that would exonerate that person in a much more clarified manner. I think the language as it is right now is fine.
     Thank you very much. The speakers list keeps growing.
    Madam Boivin.
    Maybe we could ask our officials if they have had time to reflect on the point by Mr. Casey since the first discussion we had on the subject and if they maybe could clear our heads on the matter.
    The Chair: Do you have a comment, Mr. Zigayer?
    Yes, Mr. Chair. We did reflect on the question Mr. Casey put. In response to the comment made by Mr. Calkins a moment ago, it is true that lawyers may become unfamiliar with parts of the code. If you haven't prosecuted impaired driving for a while, you may not know that there's a specific provision that requires you to do X. It may be that you forgot the requirement to provide notice. In the particular situation we have here, it may be that the prosecutor forgets about section 429 and would look at the offence without that expression “wilfully and without lawful excuse” and say, “My goodness, have I got a strict liability offence here?”
    In fact, you might get some greater litigation on the fact that the court would say that there has to be criminal intent there, so then they will have to interpret the criminal intent. By removing it with the intention of avoiding litigation, you're actually opening the door to more litigation, as the court is being invited both by the defence and by the crown to assign the proper criminal intent, because that's really what “wilfully” is. It's a description of the criminal intent. If it's not there, the court may say, well, “knowingly”.....
     I'm just starting my comments, but yes, we did have a look, and that's one of the problems that we've identified if you remove the definition or the description of the criminal intent, and—


    Then is there a risk of contradiction between the two clauses?
    They're not in contradiction. One might be redundant, but there's nothing wrong with that.
    It's redundant. Okay.
    Thank you for that question and answer.
    Is there anything further, Madam Boivin, while you have the floor?
    No, that's good. Thanks.
    Mr. Goguen.
    We all know, Mr. Chair, that when you're trying to prove a criminal case that's beyond a reasonable doubt, there are many offences that have more than one defence. Certainly this clearly spells it out. As Mr. Calkins has said, it requires a specific intent to harm or kill the animal. We've had Mr. Wilks, who's been dog-handling, say that he's had some instances when something is about to happen and he has said, “I'm releasing the dog.” Was that actually heard? Was this really done on purpose?
     Some of the lawyers may not pick up on that, but look, not every defendant in court is represented by a lawyer. Many people appear on their own behalf, and certainly this points it out clearly to the judge, in that there's the defence: it had to be specific. Those are terms that the common defendant without representation that I talk about would use: “I didn't do it on purpose and here's why”. It's clearly spelled out for the judge. It serves that purpose. For that reason, we'll be voting against the amendment.
    Thank you.
    Madam Péclet.


    In terms of the question I wanted to ask, Ms. Boivin took the words right out of my mouth, but there's still something I would like to know.
    The courts have probably interpreted the term “legal excuse” on many occasions. Have you reviewed the case law to determine whether courts have already addressed that issue, or is it a question they have not answered yet?
    In the Criminal Code, we find this expression in a number of offences. We have looked at the expression “wilfully and without lawful excuse”. We must also mention that the wording of the offence in this case is based on another offence, the one in section 445. The two are similar. In fact, the offence from section 445.1 would be included in the new offence.
    Both use the words “wilfully and without lawful excuse”. Since those two provisions are really similar, the idea is to ensure that one mirrors the other. If we had made a distinction between them, people would have wondered why and what the distinction means. Would we have wanted to ask the court to interpret a difference when we did not want to establish one? In fact, the difference lies in the specificity of the animal in question.



     Thank you very much, Madam.
    Thank you for those answers.
    Our next questioner on the amendment is Mr. Seeback.
    Are there other examples in the Criminal Code where you have this kind of redundancy, where you have one section that gives specific exculpatory language, and then in a new section that's already covered by that section, you put another specific exculpation?
    If that's true, have the courts looked at that and had difficulty interpreting that?
    I'm not aware that they've had any difficulty in interpreting them, but section 429 applies to that whole part.
    Yes. Subsection 429(2) says that it applies from sections 430 to 446.
    Yes. That includes that existing offence in subsection 445(1) which is the offence of cruelty to animals other than cattle. That is the one that was used to prosecute the killer of Quanto in the first place.
     Right. But my question is, are there other areas in the Criminal Code where you have the general section like that and then, within a specific offence, you have the exact same exculpatory wording in other sections of the code? If so, have the courts had any difficulty seeing those two sections and therefore interpreting them? Are you aware of any?
    I'm not aware.
    Mr. Kyle Seeback: Okay.
    Thank you for those questions and answers.
    Mr. Casey.
    Thank you, Mr. Chair.
    In response to Mr. Zigayer's comments and Mr. Calkins' comments with respect to the word “wilful” within the statute, I wish to remind all of you of the testimony we heard from the Canadian Federation of Humane Societies, which was that the major flaw in animal cruelty laws right now is the presence of the word “wilful” beside the word “negligence”. It's because of that word “wilful” that there's so much difficulty in securing convictions, yet here we are, about to vote down an amendment to remove that word.
    Madam Boivin.


    Subsection 429(2) does not use the same terminology at all. There is a different shade of meaning between “where he proves that he acted with legal justification or excuse and with colour of right” and “wilfully and without lawful excuse”.
    I have just figured out what my colleague Mr. Casey meant in his amendment. My understanding is that he wants to respond to the testimony and make Bill C-35 stricter. In other words, he does not open the door to any kinds of excuses. If that happens, the person is guilty. I think I have understood that aspect, but I would still like to go back to the difference in meaning, because there is one.
    A main section says that the entire clause needs to be interpreted in a certain way, but the same terminology has not been used. Does that mean that the words “wilfully and without lawful excuse” also suggest a lesser burden? To me, that wording seems a little softer and more gentle than “where he proves that he acted with legal justification or excuse and with colour of right”. In the latter, the burden is a little heavier.


     First, if I may, just to respond to Mr. Casey, we don't want to have a debate going back and forth, I regret that I wasn't able to attend the hearing when that witness made those comments, but I don't see the word “negligence” in the proposed offence.
    Mr. Sean Casey: We haven't...[Inaudible--Editor]
    Yes, but what we're looking at here is a specific new offence that is carefully drawn. It imports certain parts of an existing offence for consistency's sake.
    Madam Boivin, I hope I understood your question. If not, you'll correct me. The object of the language isn't to make it a softer offence. The purpose of including the language—wilful and without lawful excuse—is to assist the courts in applying the law. We are defining for the court the mens rea that is necessary to accompany the actus reus.


    That's lovely Latin.
    Our next and final comments on this amendment are from Mr. Goguen.
    To Mr. Casey's comment, yes, we're very mindful of the concern of animal cruelty, but as Mr. Zigayer has just said, this is a specific offence. It deals with enforcement animals. One can easily see that a reaction perhaps would be unexpected if a dog is bearing down on an accused, so therefore there's the necessity of having a wilful intent to harm that animal when the accused is in a situation of complete panic.
    I appreciate that.
    The amendment has been moved by Mr. Casey. I think it's been well discussed by the committee. All those in favour of LIB-1?
    (Amendment negatived [See Minutes of Proceedings])
    The Chair: PV-3 is removed because Ms. May is not here, but we have PV-4.
    Mr. Hyer, the floor is yours.
    Thank you, Mr. Chair.
    This amendment removes the words “if a law enforcement animal is killed in the commission of the offence, to a minimum punishment of imprisonment for a term of six months; or”. The intention of our amendment is to remove the mandatory minimum sentence that this bill introduced. The Green Party is against mandatory minimums on principle and in practice. They subvert judicial discretion, they lead to crowded prisons, and they lead to skyrocketing costs that are inevitably devolved to the cash-strapped provinces. As the Canadian Bar Association has noted quite extensively, they're neither fair nor are they effective judicial policy.
     According to the Canadian Bar Association's previous analysis of Bill C-26, the tougher penalties for child predators act, mandatory minimums do not advance the goal of deterrence according to very fair international social science research on the matter. The most dangerous or horrific offenders are already subject to stiff sentences because of the nature of their crimes, and mandatory minimums disproportionately impact minority groups, particularly aboriginal communities, which are already overrepresented in the criminal justice system. I have certainly observed in my own riding of Thunder Bay—Superior North how even now aboriginals are very seriously punished and overrepresented in serving jail terms.
    Thank you, Mr. Chair.
    Thank you, Mr. Hyer, for that description of your amendment.
    Mr. Goguen.
    As Mr. Hyer has pointed out, his amendment would have the effect of removing the mandatory minimum term of imprisonment for the killing of a law enforcement animal, and of course the intent of our legislation is to create such a mandatory minimum term of imprisonment. It's the government's position that a mandatory minimum penalty under Bill C-35 would not result in the imposition of a grossly disproportionate sentence which would be found to be cruel and unusual punishment under the charter.
    We note that the Supreme Court of Canada has set a high bar for what constitutes cruel and unusual punishment under the charter, and the government believes that where a law enforcement animal is killed while assisting a law enforcement officer, the offence prosecuted is by indictment a mandatory minimum sentence of six months and is a reasonable and proportionate means of denouncing such an offence, and that's one of the intents of courts of law.
    It's worth noting that Quanto's killer was sentenced for a total of 26 months, of which 18 months were attributed to the killing of the animal, so we'll be opposed to the amendment, sir.
     Thank you, sir.
    Madam Boivin.


    I am not convinced that the mandatory minimum sentences have any purpose whatsoever, but they have been in the Criminal Code for a while now, and we will not solve that problem today.
    As Mr. Goguen just said, ever since the Supreme Court of Canada decision in Nur, we have learned a little more about mandatory minimum sentences. Even though most of the court justices are not enthusiastic about that method, there is still a criterion to meet. Based on what the officials told us the last time, it seems that the criteria are met. At any rate, the case law shows, as Mr. Goguen just said, that the six-month sentence is more of a sham than anything else, because not a lot of people will receive such a sentence. That often makes me wonder why they have included it.
    It meets the criteria, but I don't feel that the legislation is good in that sense. In relation to cruel and unusual punishment, I don't think this would lead to the same outcome as in Nur.
    I understand where you are coming from and we are in agreement on that.



    Is there anything further to the amendment? No? All those in favour of amendment PV-4?
    (Amendment negatived [See Minutes of Proceedings])
    The Chair: Now we're on to clause 3 unamended.
    (Clause 3 agreed to)
    (Clause 4 agreed to)
    The Chair: Shall the short title carry?
    Some hon. members: Agreed.
    The Chair: Shall the title carry?
    Some hon. members: Agreed.
    The Chair: Shall the bill carry?
    Some hon. members: Agreed.
    The Chair: Shall the chair report the bill back to the House?
    Some hon. members: Agreed.
    The Chair: We do not need a reprint because there were no amendments.
    Thank you very much.
    We will suspend now for about two minutes because we are going in camera. We'll be dealing with the report.
    [Proceedings continue in camera]
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