JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, February 16, 1999

• 0944

[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): I'd like to convene the meeting, please.

We have three groups before us this morning: from Mothers Against Drunk Driving, Tony Carvalho, Susan MacAskill—welcome back—and Robert Solomon; from the Council on Drug Abuse, Mr. Fred Burford and Mr. John Bates; and from the Canadian Automobile Association, Rosalinda Weisbrod. There is another lady there. I don't have your name.

Ms. Elly Meister (Vice-President, Public Affairs and Communications, Canadian Automobile Association): My name is Elly Meister.

The Chair: Thank you, Elly.

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I will call for a submission from each of the groups, limited to 10 minutes. Then I will cut you off and we'll move on to the next group. Then we'll open the floor for questioning from all members of the committee on a rotation basis.

I will call on Mothers Against Drunk Driving to open the presentation this morning.

Mr. Tony Carvalho (Chairperson of the National Board of Directors, Mothers Against Drunk Driving): Mr. Chairman and committee members, my name is Tony Carvalho, and I am the chairman of Mothers Against Drunk Driving. With me is someone you may know, our national president, Susan MacAskill. Also here is MADD Canada's director of legal policy, Professor Solomon, who is the associate dean of law at the University of Western Ontario and one of Canada's leading experts on impaired driving.

I'd also like to acknowledge John Bates, who is a founder of MADD Canada. It's good to be presenting with a friend today. John endorses our recommendations as a board member. Nevertheless, today he is representing CODA, and while CODA and MADD are not recommending the same proposals, certainly there is more common ground than not.

MADD Canada is very pleased to be able to contribute to the committee's study of impaired driving laws and ultimately to work with the justice committee and our federal government toward making these necessary amendments to the Criminal Code.

We cannot allow ourselves to become numb to the reality that every day Canadians are killed and injured due to impaired driving. We must not tolerate impaired driving. We must not become complacent about its enforcement. We must do something about it. Even one death is too many.

MADD Canada appears before this committee today to remind our country's lawmakers that there are thousands of victims across Canada and thousands more who have been killed and are no longer with us who expect us to do something about this unacceptable crime, the criminal act of drinking and driving. And we can do something. MADD Canada's primary objective is saving lives. We are here today to do our part in halting the daily deaths on our roads due to drinking and driving. MADD Canada's over 400,000 financial supporters and millions of moral supporters are committed to stopping impaired driving and supporting victims of this serious crime.

Mr. Chairman and committee members, it's our country's national tragedy that each and every day 4.5 people are killed and 125 people are seriously injured as a result of alcohol-related crashes. Impaired driving is the number one criminal cause of death and injury in our country. It's a criminal act that affects hundreds of thousands of Canadians. MADD Canada is here in Ottawa to say to you again that this tragic toll of Canadian lives on our streets and highways must end and must end now.

I will not begin to cite the statistics about the number of people who drink and drive, the number of people charged or convicted, or the length of sentences being handed down for vehicular murder in our country. You'll find these numbers in our brief, and I'm certain we'll discuss statistics during the question-and-answer session.

I do not want to talk about statistics. I want to talk about people.

In October 1997 I was in Ottawa to speak to MPs and to talk with the justice minister and her parliamentary secretary, Eleni Bakopanos. At that time, I stated I'd been in Ottawa the previous year and had appealed for action, that over 1,400 Canadians had died in that year and I didn't want to be back to talk about another 1,400. Well, it has been 16 months since I was last on Parliament Hill and over 1,900 people have died. Unfortunately, before we are done, more will die, and we all know that.

If you recall, MADD Canada released a national public opinion survey in October 1997. It revealed a strong sentiment among Canadians that impaired driving is a problem in our country and that government should be doing more about it. An overwhelming number of them, 94%, believe impaired driving is a problem that government should fight. Three in four Canadians, 75%, believe federal and provincial governments are not doing enough to reduce impaired driving.

The recent public opinion poll done by the Traffic Injury Research Foundation states that a vast majority of Canadians still view impaired driving as a serious problem that needs to be addressed. TIRF reports that 88% of Canadians think drinking and driving is an extremely serious or serious problem today. There is a huge majority of Canadians that recognize the problem and want something done about drinking and driving.

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In January 1998, MADD Canada co-hosted a forum with national stakeholders, including industry representatives, to discuss the most effective changes that could be made to federal impaired driving legislation. It's important for this committee to note the degree of consensus that was achieved at that meeting. We were meeting specifically to review possible amendments to the Criminal Code that would have an impact on saving lives, saving those people from being killed by impaired driving. As a participant, I can tell you there is consensus in our country on a great number of points regarding drinking and driving. Our list of recommendations reflects the work from the group that gathered in January last year.

From this forum, MADD Canada conducted a review of available research on traffic safety and legal studies relating to impaired driving. Representatives of MADD have held meetings across Canada. We have worked to build on the consensus and to refine the arguments and recommendations for changes to our federal laws. MADD Canada has shared its findings and collaborated with all national stakeholders, from the Traffic Injury Research Foundation to the Canadian Police Association to the Addiction Research Foundation to the Brewers' Association of Canada.

Through 1998, MADD Canada has been meeting with and sharing our ideas and findings with numerous victim, traffic safety, police, legal, and social organizations. The 23 organizations that appear on the list circulated to you this morning are national organizations that have been consulted and that agree in principle with the recommendations made in our submission. The attached list of 80 organizations are OCCID members, who through OCCID have endorsed our 11 recommendations.

MADD Canada's brief and its 11 recommendations are the result of work done over the past 18 months. We believe it's a solutions-oriented submission. It is made to the justice and human rights committee with the trust that the federal government will act and amend the Criminal Code and create more effective and efficient impaired driving laws.

At this time I would like to introduce our president, Susan MacAskill.

Ms. Susan MacAskill (National President, Mothers against Drunk Driving): Thank you, Tony.

I am pleased to be back in Ottawa today and back before this committee. Last June I was before you to discuss the issue of victims' rights, and I would like to commend the committee for its report on victims' rights. We anxiously await the minister's new legislation.

MADD Canada's objective is saving lives. Our national organization has over 30 local chapters and over 400,000 donors across Canada. In 1998, MADD Canada communicated with 4.5 million Canadians by way of mailings, which were designed to educate and raise public awareness about the dangers of drinking and driving. Our red ribbon campaign, a public awareness initiative to remind Canadians to drive sober throughout the holiday season, distributed over 4 million red ribbons. Our membership reaches out to Canadians in every corner of our vast country and assists them with coping with the pain and horror of impaired driving.

Really, it is a sad commentary on our society that a group like MADD Canada has to exist. Imagine a group of volunteers who band together to assist victims and their families and friends who must deal with the loss of a mother; a father, as in my case; a sibling; or a child. Why does this group of volunteers come together? Often it's because individuals have been directly affected by a tragedy caused by impaired driving. We are concerned that this horrendous crime does not claim more lives and does not alter further lives forever. We are volunteers who simply want to see this crime, this 100% preventable crime, stopped.

One of the honours the president of MADD Canada has is to travel across our land and visit our chapters and supporters. Whether I'm in Kelowna, Lethbridge, Toronto, Port Colborne, St. John's, or in my home province of Nova Scotia, the problem of drinking and driving is serious. There are thousands of people I have personally met who have been directly affected by impaired driving, and these people want to see something done about it.

I bring this to your attention to make the point that we see the crime of impaired driving from a lot of perspectives. It is tragic when an innocent person loses his or her life, and it is unacceptable when our law enforcement agencies cannot apprehend or charge a criminal.

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It is frustrating when our judicial system revictimizes the victim and fails to appropriately deal with the criminal or fails to deliver a sentence that reflects the seriousness of this crime.

We view the crime of impaired driving from many angles, and it is for this reason that MADD Canada advocates a comprehensive approach to solving the problem of drinking and driving. I ask you to take a moment to review our comprehensive approach. Included in your packet you have this newsletter that I'm referring to, and you will see that federal legislation is but one element of our fight against impaired driving.

Having said that, I want to conclude my remarks by saying that changing federal legislation is an absolutely essential element in the fight against impaired driving. MADD Canada members and supporters are looking to you, our elected representatives, to act. We want to see federal leadership on this most important issue that affects so many Canadians.

As our brief states, there is no single action to combatting impaired driving. There needs to be action on a lot of fronts. Our volunteers will continue to do what we can to make a difference, and we hope and pray you will do your part in this fight for Canadian lives and Canadian safety on our highways.

The Chair: Thank you very much.

I'm going to have to move on, Mr. Carvalho, to the Council on Drug Abuse.

Mr. Bates.

Mr. John Bates (Member of the Board of Directors, Council on Drug Abuse): Thank you very much for the opportunity to appear here today.

First, let me fill you in on what CODA is. The Council on Drug Abuse was first formed in 1969 by a group of concerned businessmen who were becoming alarmed at the growing use of illicit drugs among our youth.

It was actually Murray Koffler, who is the CEO of Shoppers Drug Mart, who really got the organization going. The present chairman is Frank Buckley of the cough medicine theme “It tastes awful, but it works”. He's done quite a thing with that.

Fred Burford, who is the present president, is with us today.

I'm going to skip over the first couple of pages of this, except to say it's become quite clear even to the most casual observer that very little has really been accomplished in the 17 years I've been involved in this particular thing.

Let me also say we're in total agreement with what MADD is saying. How could one not be in favour of what they're saying?

The problem is, according to the latest figures released by the Ministry of Transport in Ontario, the percentage of drivers killed who had been drinking is just about the same as it was in 1988. Further recent study by the Ministry of Health reveals that more respondents said they had driven after drinking now than were reported in a similar study 10 years ago.

So where have we come? Not very far. Why? We've been doing this the wrong way. We've been saying we're going to have another public awareness campaign. We don't attack any other crime that I know of with a public awareness campaign. Can we say something like friends don't let friends rob banks and think that will have any effect at all in the incidence of bank robbing? Of course it won't. So why are we relying on them now and wondering why they don't work?

A lot has been made about the so-called hard-core drinking driver. I think we have to get off that particular kick. Even though they are very dangerous people, there aren't very many of them. And if we concentrate on the hard-core drinking driver, we're going to take the emphasis away from where it should be, and that's on people who shouldn't drink and drive at all.

I think also at this point you've probably had it up to goodness knows where on the alcohol ignition interlock. We are in favour of the alcohol ignition interlock, and in point of fact, I've yet to hear of anyone being killed by a drunk driver who's car was equipped with an interlock. What more do we need to know about the interlock, and why aren't we using it now, or at least starting to use it?

There were previous presentations about the interlock; it's in our presentation. But let me say one thing: we don't expect the government to suddenly jump in and put interlocks on everybody's car. We say if somebody has a BAC of .165 or greater when they're convicted, the interlock goes on that particular person's car, and on the car of a recidivist. We suggest you form a task force to look at the relevant uses of the interlock. But for goodness' sake, let's get going on the thing. The reason we're calling for a task force is the old saying that only a fool tests the depth of the water with both feet.

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I guess the main thrust we're after is the case for O.02; in other words, zero tolerance. If you look 10 years down the road, where are we going to be with the allowable BAC? Probably zero. This isn't going to come, really, from a government dictum; it's going to come up from the road users themselves. And this is a defensible position.

First of all, we've been sending out a mixed message. We tell people not to drink and drive, but the law's implicit that it's quite all right to do just that. How on earth can we have a debate about .08, .05 or zero anything, and then tell people not to drink and drive? We're saying, go ahead and drink up to .08. It doesn't make any sense. It's a mixed message.

The position is defensible. It's not even a leading-edge position, as far as that goes. The first two levels of the graduated licence require zero tolerance. Why not all levels? We expect the designated drivers not to drink, so why not all drivers? There's a complete contradiction. We expect the designated driver to have zero tolerance, but everybody else can have up to .08. It doesn't make any sense at all.

All drivers under the legal drinking age must be alcohol free. Airline pilots may not drink at all for 24 hours. How many of us could say, I want my pilot to have at least .08 before he takes off? We wouldn't, obviously. School bus drivers must be alcohol free. Why not all? Sweden has already adopted it. Why not?

The North American long-haul truckers, the big rig drivers, have the most stringent rules of all, as well as intercity bus drivers. For anything under .02, no further action is taken. Between .02 and .04, they have to go to alcohol assessment. Actually, the safest and most sober drivers on the road are the long-haul truck drivers. I'm not going to go into all the stuff they do.

But perhaps the most compelling reason to go to zero BAC is the synergism between alcohol and many drugs—and that goes back to the hard-core drinking driver. We think he's bad, but we don't know how many people have had, say, 10 milligrams of Valium or something like that and a couple of beers. They're as impaired as if they'd had five beers, but it won't show up on a breathalyzer. The officers on the scene often miss those particular impaired drivers. That could be the most serious group; we don't know. Obviously, a huge study has to be done on this.

In conclusion on this—I'm not going to take up much more time—what that does is it depresses the figures on impaired driving. They're much higher than we think they are.

Dr. Robert Dupont is, beyond question, the world's leading authority on the effects of drugs, including alcohol. A fellow of the American Psychiatric Association, he's clinical professor of psychiatry at Georgetown Medical School and a visiting associate professor at the Harvard Medical School. He represented the United States in five consecutive meetings of the United Nations Commission on Narcotic Drugs and is chairman of the section on drugs and alcohol abuse in the World Psychiatric Association. I could go on and on. His c.v. is about that thick, so I won't bother going on.

He's adamant. He says there is no safe level of alcohol in the blood of a driver of an automobile. The longer version of what he said is:

The current crusade against drunk drivers on highways will one day lead to the recognition of another significant conclusion included in the Academy's (National Academy of Sciences) report. There is no safe level for alcohol in the brains of automobile drivers, and many of the dangerous drunk drivers are “social drinkers” and not [so-called] “alcoholics” [or hard core]. When that realization sinks in, the true national education about the danger and destructive nature will have begun. We will then conclude that our goal is not only to get the drunk drivers off the highways, but to get anyone with any alcohol in his or her brain out from behind the steering wheel of an automobile.

It goes on to talk about dependence:

...the honest solution to this problem is to establish the principle that any measurable blood alcohol concentration resulting from drinking, is incompatible with safe driving.

If you drink, don't drive and if you drive don't drink. Any other basis for laws and social norm about drinking and driving is scientifically....

He's saying that any other basis is scientifically and morally indefensible.

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I will leave the balance for Fred.

The Chair: Mr. Burford, we have approximately two minutes.

Mr. Fred Burford (President, Council on Drug Abuse): Thank you very much, Mr. Chairman and members of the committee.

We recognize that impaired driving is powerfully associated with alcohol; however, impaired driving can also be caused by illicit drugs, such as marijuana and hallucinogens; prescription drugs, such as codeine, Valium and others; and non-prescription drugs, such as Gravol. My main concern is the recognition that marijuana is a problem for impaired driving.

I won't go into each of these, but appendix A is a quote from the World Health Organization. Appendix B is a write-up about a study in Maryland showing that of the impaired drivers involved, 18.3% were impaired by marijuana only. Appendix C is a report on testing motorists in California and states that between 10% and 15% of impaired motorists were impaired because of marijuana only. There is also a write-up about a six-death car crash in Toronto in 1990 that was caused by marijuana only.

The Addiction Research Foundation survey in 1997 of students in Ontario showed a correlation here that is really amazing. Among students who used cannabis in 1997, 94.5% of them drank alcohol in that year. This is an amazing correlation and underlines the synergism John referred to.

Now is the time for strong and dramatic action, such as John has indicated in the recommendation we are making. Of course, we are strongly in support of the presentation by MADD. Thank you.

The Chair: Thank you, Mr. Burford.

From the CAA, Ms. Meister.

Ms. Elly Meister: Good morning, ladies and gentlemen. My name is Elly Meister and I'm the vice-president of public affairs and communications with the Canadian Automobile Association, the national office here in Ottawa. With me today is Rosalinda Weisbrod, our manager of traffic safety, and Jody Ciufo, as an observer, who is our manager of public and government relations. We are happy to be part of this group today and have submitted a brief for the committee to review.

Over the past two decades we have made encouraging progress in reducing impaired driving in Canada. Thanks to legislative amendments, enforcement initiatives, and educational programs, thousands of people are alive today who might otherwise have died on our roads. But impaired driving is still the single greatest criminal cause of death in our country. Every day almost five people will die because someone chooses to drive while impaired.

Since 1985, when the Standing Committee on Justice and Human Rights last modified the Criminal Code provisions dealing with impaired driving, 14,000 more Canadians have died at the hands of impaired drivers and almost one million have been injured. For every statistic created by a drunk driver, there are countless human tragedies of dealing with the loss of mothers, brothers, sisters, sons, and friends.

Impaired driving is no accident. It's a criminal offence and is completely preventable.

Drunk driving costs society tens of millions of dollars annually in court costs, rehabilitation, lost earnings, health care, and social problems. As one of the sponsors of the national poll on drinking and driving recently conducted by the Traffic Injury Research Foundation, we were appalled by the results that showed an estimated 12.5 million occurrences of drunk driving in Canada each year. As noted in the study, the persistence of drinking and driving is compelling evidence of the need to enhance the general deterrent effect of the law.

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On behalf of its 4 million members, the Canadian Automobile Association supports measures by the federal government to amend the Criminal Code to enhance the deterrence value of the legislation with respect to impaired driving, to heighten the consequence of breaking the law, and to be more effective in preventing recidivism among impaired drivers.

Through our member surveys, we know that CAA members consider drinking and driving to be the greatest threat to their personal safety. In a recent poll, 97% of our members indicated that drunk driving poses the greatest threat to their safety on the roads. This was followed by 88% for aggressive driving and 62% who cited the road conditions.

With our members' best interests at heart, and all Canadians, we thank you for this opportunity to propose changes to the Criminal Code designed to improve the safety of our members and all road users.

Our recommendations are based on the principles that impaired driving is a devastating human tragedy that is completely preventable; sentencing must reflect the severity of the crime of impaired driving; legislation must be enforceable, feasible, and manageable for police and the courts; the rights of the individuals must be respected; and driving is a privilege, not a right.

Research shows a clear distinction between socially responsible drinkers and a very small minority of hard-core drinking drivers who cause the majority of crashes, injuries, and fatalities. This hard-core group tends to have much higher blood alcohol concentration levels, with higher levels of fatality. CAA recommendations on deterrence are specifically targeted toward the first group, which responds to public education initiatives. Recommendations directed toward the hard-core drinking driver focus more on stricter sanctions and alternative methods of preventing repeat offences among this group.

Our specific recommendations are that driving while impaired by alcohol and driving while impaired by drugs should be considered as the same offence under the Criminal Code, with all provisions for testing and sentencing to be equally applicable. Legislation should be redrafted where necessary because of the different properties of drugs and alcohol for detection. Current BAC limits should be enforced and should not be lowered, as it is unlikely to act as a deterrent to the hard-core drinking driver. It is likely to be difficult to detect and enforce, does not have the support of the population, is not proven to have a measurable impact on safety, and while impairment can be found at BACs as low as 50%, not all people are impaired at this level.

These conclusions were reflected in the study prepared by TIRF, which assessed the potential impact of lowering the legal blood alcohol limit to 50 milligrams percent in Canada. In addition, few CAA members would support the lowering of the legal limit. CAA has concerns about the unforeseen consequence for enforcement or compliance if the majority of the public is opposed. Higher BAC levels should result in stricter penalties because high BAC offenders cause a greater number of collisions with higher fatality rates.

Under current laws, sentencing for impaired driving convictions is governed only by the level of injury and the number of previous convictions. This means the law sees a first-time offender with a BAC of 81 milligrams percent the same way as one with a BAC of 200 milligrams percent.

CAA believes the BAC level is a key variable in determining the penalty because of the exponential increase in risk the high BAC driver possesses. Drivers of heavy trucks should be subject to a BAC of .00 and the strictest penalties for driving while impaired by alcohol or drugs to reflect the danger associated with collisions involving heavy trucks.

Mandatory assessment and treatment must be added to the Criminal Code sentencing provisions already in place, namely fines, incarceration, and licence suspensions, to identify and deal with hard-core drinking drivers. CAA recommends the addition of mandatory assessment for all first-time offenders and treatments for those who are identified as alcohol dependent, in addition to other penalties ordered by the court.

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Non-traditional sanctions should be included in the Criminal Code; for example, electronic monitoring, home confinement, and preventative technological devices such as ignition interlock.

Such measures are necessary due to the high proportion of repeat offenders, the slowing of the decline in drinking and driving rates, and enforcement problems experienced with licence suspensions. Drinking and driving is a problem that we must look at with new eyes.

Any crash resulting in injuries should constitute reasonable and probable grounds for blood, breath or other bodily fluid testing, and the legal consequence of refusing to submit to a test for drug or alcohol levels should be equal to the most severe level of sentencing.

Given CAA's policy calling for increasingly severe penalties, it is important that the Criminal Code include a provision that refusal to submit to a test for drug or alcohol level constitutes a criminal offence subject to the most severe level of sentencing.

In closing, I encourage the committee to do its best to see that effective changes are introduced to the Criminal Code of Canada with respect to impaired driving. We've lost too many lives to this epidemic that has plagued our roadways for too long a time.

You can make a significant impact on drinking and driving in Canada. You can help us rid our roads of a serious problem and a killer who takes lives randomly and without warning—the drunk driver.

Thank you.

The Vice-Chairman (Mr. Paul DeVillers (Simcoe North, Lib.)): Thank you very much. I congratulate all the witnesses for sticking to the time limits, but your briefs are on file and will form the record of the committee, and they will be reviewed by the committee in its deliberations.

The first round is seven minutes, and we'll go to Mr. Harris.

Mr. Dick Harris (Prince George—Bulkley Valley, Ref.): Thank you. I too want to thank you for your excellent presentations, particularly some of the wording you used. Impaired driving is no accident. It's a very serious crime.

I sometimes shake my head when I read media reports about a crash that has involved impaired driving of some sort and it's referred to as an accident. It's not an accident; it's a crime.

I want to zero in on a couple of points, because we have lots of questions to ask today.

There seems to be a mixed feeling among the witnesses we've heard from since these hearings began in regard to the lowering of the BAC limit. The Canadian Police Association, for example, was before us and they supported the lowering of the BAC limit. The Canadian Association of Chiefs of Police did not, and this has been a swing back and forth throughout the witnesses. Today we have the same thing.

Maybe I could direct the question first to MADD. I know your national policy, as I understand it correctly, is a .05 BAC limit, and yet I believe today you have called for the stricter enforcement of .08. Is this a conflict with your national policy, or are there other reasons that you could explain?

Mr. Tony Carvalho: We don't think it's a conflict. We see it as .08 today not really being .08. We're trying to be pragmatic about this. We need to enforce .08 first. So if you go to .05 and you don't make other changes, in effect what you're going to have is .08.

The first step is to have a strict enforcement of .08. You could go to zero, and I think no one would argue that if you banned alcohol it would probably save more lives, but I think you have to look at it from a practical point of view. The first step is to have .08 be .08.

So we still have .05, and that's not to say that if that isn't a sufficient measure we don't return to that, but the first order of business is to have .08 strictly enforced.

Mr. Robert Solomon (Director, Legal Policy, Mothers Against Drunk Driving): Given the existing legal and administrative barriers to effective enforcement of the Criminal Code, the .08 BAC is not currently enforced. If you look at the surveys from the police community, you learn that one-third of police officers admit that they sometimes or frequently lay no criminal charge, no provincial charge, against an impaired driving suspect; 42% of the police admit that they sometimes or frequently don't lay a criminal charge even though there is evidence to do so, but rather deal with it as a provincial matter.

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Mr. Dick Harris: Mr. Solomon, if I could interrupt, I know what you're saying, because we've heard that testimony. The problem seems to centre around the tolerance level of the instruments that are being used. There's a margin of error that appears to be successfully argued by the defence lawyers who've found a cash cow in the impaired driving issue.

You're right, police officers seldom lay a charge unless it's .10. So I guess the question is, given the .02 tolerance that appears to be built in for the sake of the legal process, or to the benefit of the legal process, how else can we enforce .08 if not to say go to .05 or .06, allow the .02 tolerance, and say, okay, at .08 you're outside the tolerance, you're going to be prosecuted, and the charge is going to stick?

Mr. Robert Solomon: I think there are two responses. The first is that the idea that breathalyzers are not accurate within .01% has been questioned in light of the new technology. The second is that they simply then add on another .01. There is no reason why you can't get convictions at .09, and indeed in many jurisdictions they do.

I don't think that's the major problem. I think the major problem, and the major reason why police are not laying charges, is it takes 2.6 hours to process a single charge. Ten years ago I did a study with Evelyn Vingilis, and the major complaint of the police at that point was that it took too long to lay an impaired driving charge. At that point it was 2.3 hours.

Mr. Dick Harris: I realize that, but I think there's another half to that argument. It takes too long to lay a charge that we don't know whether we can win or not, and that's where the problem comes in.

The defence lawyers in this country have successfully found an avenue to get people off on technicalities, and the police officers out there, quite frankly, are becoming absolutely frustrated with the justice system. They're saying, well, unless I can get .10, I'm not even going to be bothered, because some sharp lawyer is going to get this person off. That's the frustration that's at the front-line enforcement level.

If there were a way to make .08 enforceable, and certainly the evidence appears to conclude overwhelmingly that at .08 a person is legally impaired and should not be behind the wheel, how do we enforce .08 given the arguments that defence lawyers have put forward up to this point?

Mr. Robert Solomon: There are two responses I'd make. One is that we can get convictions below .10, and those have to be pushed. We have new technologies coming on stream. I think the major problem is we have to streamline the enforcement of the federal criminal law. That's why we've called for mobile breath-testing units, compulsory physical coordination testing, extending the time limits for testing, the use of passive alcohol sensors, and a number of other strategies that will shorten the process so that it won't take police 2.6 hours, so that police can enforce the law more effectively and efficiently.

If at the end of that process, and we've streamlined the criminal justice system and we still are not getting the level of enforcement we want, and with the new technology we still can't get the law enforced at .08 or close to it, then I think it's MADD's position that MADD will then say if the only way we can have strict enforcement of .08 is to go to .05, let's do it. But I think the first rational step is to streamline the process.

The Vice-Chairman (Mr. Paul DeVillers): Thank you.

Your time is up, Mr. Harris. There will be a second round and you'll have another opportunity.

[Translation]

Mr. Brien, you have seven minutes.

Mr. Pierre Brien (Témiscamingue, B.Q.): In their statements this morning, the majority of our witnesses proposed various ways to stiffen penalties, particularly through changes to the Criminal Code.

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I find it disturbing that in the past years there has been an increase in the number of hit-and-runs by drivers suspected of being impaired, which of course changes the nature of the evidence.

I fear that if we impose harsher sentences without taking into account the problem of hit-and-runs we might increase the incidence of that behaviour and motivate impaired drivers to flee the scene of the accident. It will create more problems because they will have neglected to assist their victims if they're not already dead. None of the statements we've heard this morning referred to that. I would like to know if you have studies on that issue.

[English]

Mr. Tony Carvalho: I think the changes we are recommending to the Criminal Code—tied with that, and I think we've all spoken to it, is that punishment for leaving the scene has to be very severe. When someone leaves the scene, they're taking a risk and they're assessing it. They have to counterbalance that with the realization that the charges for leaving the scene are the highest. That will help in their decision-making process not to do it. You can't have harsher penalties if you don't also change the laws regarding hit and run.

Mr. Robert Solomon: I would agree with the sentiment you have expressed. With the tightening up of the law in 1985, the last round of federal change, there was a significant increase in leaving the scene. I agree with your position that if we make these changes in the drinking-driving provisions, then thought will have to be given to make sure there is no benefit from drinking and driving, causing an accident and fleeing. I would agree with your submission.

[Translation]

Mr. Pierre Brien: My second question concerns the fifth recommendation of MADD, Mothers Against Drunk Driving, and the seventh recommendation of the Canadian Automobile Association.

Specifically, a police officer would be allowed to demand an ASD test from any driver involved in a crash that resulted in bodily harm. Why is it not possible now for an officer to submit a driver to that test if he has been involved in an accident? What changes do you propose in that respect?

[English]

Mr. Robert Solomon: Right now, in order to ask for a screening device test at roadside, you must have a reasonable suspicion that the driver has alcohol in their body. There are also some cases that suggest you can only ask for a roadside screening test at roadside. The difficulty that arises is that if there is a car accident and the driver is taken to the hospital, they are no longer at roadside. The officer shows up and probably can't, at least in some jurisdictions, demand the roadside. The courts won't let him because it's not at roadside, and they may not have the roadside with them. The result is that in order to demand a breathalyzer or a blood test, the officer must have reasonable and probable grounds to believe they've committed a criminal offence. What happens in those circumstances is that the police don't have the requisite grounds.

Let me share with you two cases that I think graphically illustrate the frustration. The simple fact is that our laws against impaired driving causing death and impaired driving causing bodily injury have not worked. They were introduced in 1985 to make sure that those who drank, drove, and killed were subject to heavier sanction. Those laws aren't working, and I'll share with you the statistics in a minute.

• 1030

Let me just share with you the frustration. The first case involved a young woman who drove her truck into an oncoming lane of traffic, colliding head on with a small vehicle and killing four 19-year-old men and injuring another. She was taken to the hospital. The police arrived at the hospital and demanded a blood test from her. The judge said the officer had no reasonable and probable grounds, which is the high standard to demand the blood test. That woman was acquitted of all of the charges of impaired driving causing death, the charge of impaired driving causing bodily injury, and all other criminal charges. That woman, even though her blood alcohol level, when taken, indicated that she was impaired, was subject to no criminal sanction.

Let me share with you the Swinson case. Dr. and Mrs. Swinson are on our board.

The Vice-Chairman (Mr. Paul DeVillers): Mr. Solomon, there are 30 seconds remaining in this round, please.

Mr. Robert Solomon: There are significant problems. That's why we need the crash to be a basis of demanding a roadside screening test.

The other point I want to make is that a cynical, bitter, and jaded person, which I'm not, might suggest to you, in looking at the statistics, that it is not against the law to drink, drive, and kill, unless you're poor, unless you're very stupid, or unless you run over someone important.

There are 1,680 deaths a year due to impaired driving causing death. In about half of those, 800, the driver is dead and no charges are laid. There are about 800 cases of impaired driving causing death. The total number of charges is 130—130 out of 800. The conviction rate, at least based in Ontario, is less than 45%. When we look at impaired driving causing bodily injury, there are 74,000 injuries a year. There are 1,200 charges. I have the exact statistic on that percentage. It is upsetting.

The Vice-Chairman (Mr. Paul DeVillers): Thank you, Mr. Solomon. Could you provide the committee with those statistics, please? We've been getting conflicting results there.

I'm going to move on now to Mr. MacKay for the seven-minute round.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair. I want to thank the entire panel and also commend all of you for making this such a priority and for reiterating what you have presented to us in the past.

One of the questions I have ties in with the tack that was taken in the earlier line of questioning. It has to do with the growth industry that lawyers have benefited from when it comes to impaired driving legislation. I still have a lot of friends who are practising law, and they would love to see changes made because it will inevitably lead to a glut in further court challenges.

Perhaps I'll direct my question to Mr. Solomon with respect to the charter implications, and feel free to address any of the specific recommendations that are being made here. In terms of the charter implications, the most obvious one is the one you have already referred to, and that is the police officer's roadside demand. Currently, as you know, there was a time when policy officers could make a demand for roadside sobriety tests and have it admissible in court. As it currently stands, if the person, after being chartered, volunteers to give sobriety or submit to sobriety tests, that's not admissible in court but is only used for the grounds to administer the breathalyzer.

In this world of charter constipation that we're living in in Ottawa, I'd like to know what some of the implications you might see are and what the courts would do with some of these changes.

Mr. Robert Solomon: Thank you for your question. Our recommendations are based on about seven or eight months of work with two of my colleagues, one of whom is a constitutional law expert and constitutional law professor, and the other is a former prosecutor and professor of evidence and criminal law.

In these proposals we've come forward with we were well aware of the charter, and behind these are detailed legal analyses, in terms of our analysis of the likely charter consequence.

• 1035

But let me just quote very briefly from a case. Mr. Justice Cory stated in the case of Galaske v. O'Donnell:

The driving of a motor vehicle is neither a God-given nor a constitutional right. It is a licensed activity that is subject to a number of conditions, including the demonstration of a minimum standard of skill and knowledge pertaining to driving.

Defence counsels will tell you that driving is a liberty under section 7. Defence counsels say very strange things. I educate them. I'm not responsible for what they say after they leave the school. If you look at what was said by the Alberta Court of Appeal, the Manitoba Court of Appeal, the Saskatchewan Court of Appeal, the Yukon Court of Appeal, the Ontario Court of Appeal, and the Quebec Court of Appeal, you will find that each and every one of those courts said driving is not a liberty within the meaning of section 7 of the charter.

In case after case the Supreme Court of Canada has indicated that driving is a highly regulated activity, so the demand for a roadside screening test, for example, was held by the courts not to violate section 8, unreasonable search and seizure, because of the diminished expectation of privacy associated with driving.

The Supreme Court of Canada in a case called R. v. M.(M.R.), which involved searching a student for marijuana at a school, said that we must interpret the charter in terms of common sense and that because school is a regulated environment, they would interpret it in a different fashion.

We need prosecutors and the federal government to be challenging many of these arguments that are put by defence counsel because in my view many of them are without substance. We should be pushing aggressively to show the court and explain to the court the vital public interest in highway traffic safety, which in many cases they've already recognized.

Mr. Peter MacKay: Surely, we'd all recognize there are built-in presumptions right now that the crown has the benefit of, and I would suspect that similar arguments were made early on against those presumptions. It seems to me that everyone around this table acknowledges the overwhelming importance of this issue and the need to protect the members of the public who are on the roads.

I said in this committee before that there was a judge who often used the expression that an impaired person going down the road is like somebody with a loaded gun pointed at every driver who approaches him. If saving lives is not something that should invoke a save-by-one argument on many occasions, I don't know why we have a charter if we're not going to use it in that fashion.

I have a couple of specific questions for the MADD representatives. We've talked a little bit about the language that's used in the Criminal Code. Professor Solomon, you referred to the inadequacy of “impaired causing”.

Would members of the panel—and I throw this out generally—favour inserting in the Criminal Code the words “vehicular homicide”? It seems to me that there's a connotation that is missing when it comes to impaired driving.

Mr. John Bates: That term is used in the States, and why we don't use it here I don't know.

Mr. Peter MacKay: I'd like to ask a question specifically to Ms. MacAskill, my colleague from Nova Scotia. In Alberta they're using the interlock system on a more regular basis, and it does appear to be having an impact. In a more depressed economy such as that of Nova Scotia and the Maritimes generally, how effective a deterrent do you think it would be to mandate that a person equip their vehicle with an interlock device when chances are they don't have the ability to pay a fine of even $1,000, let alone install one of these devices?

Ms. Susan MacAskill: It's a good question, Peter. The Province of Nova Scotia at present is dealing with legislation related to impaired driving, and that is one of the points being considered there.

We have done an extensive amount of research in the area of deterrence, ignition interlock being one of the key areas we feel needs to be part of a sentence, depending on the history of the offender.

I know Dr. Solomon has some strong arguments that might help answer your question

• 1040

Mr. Robert Solomon: There's no question that interlocks work. We have lots of evidence to that effect from the United States and Alberta.

I think it's very important that we get interlocks into the federal law so that we have a consistent package across this country. One of the major reasons the public doesn't understand the drinking-driving law is because it's like a patchwork quilt among provinces. This is one area where I think there should be a federal law. It should be specifically added to the Criminal Code that a judge can order that an interlock device be placed on the vehicle of a drinking driver. I'm sensitive to the cost issues, but if a person who has committed a federal criminal offence and put other people at risk can't afford an interlock device, I have to choose the interest of highway traffic safety over their interest.

Mr. Peter MacKay: Would you include with it some incentive, that is, take a one-month driving suspension with no interlock or a six- or nine-month suspension with an interlock? Do you think that would work?

Mr. Robert Solomon: I know that system works in Alberta under provincial law.

I would be opposed to it. There should be no discounting. The penalty imposed should reflect the seriousness of the criminal offence. You shouldn't be allowed after you've committed a federal criminal offence to then endanger other individuals. I don't think it's an either/or situation. I think you get your penalty and, if appropriate, an interlock, and no discount, no bargains.

Mr. Tony Carvalho: That speaks to your point that people who have the financial resources would be able to have a lower sentence than those who would have greater difficulty with the cost.

Mr. John Bates: It certainly reflects our position. The interlock has to be over and above any other sanction that is applied. That's one of the reasons we're calling for a committee to study this thing. We don't know how many are going to be needed. Is it 30,000? Where are they going to come from? Can we produce them and get around some of the niceties? We know the interlock works and that it saves lives, but we don't know if we can technically implement it. I think that has to be established first.

Mr. Peter MacKay: Thank you, Mr. Chair. I don't want to monopolize the time.

The Chair: Thank you, Mr. MacKay.

Mr. Solomon, you mentioned a number of cases. Could you give us a list of those cases as well as any other cases that support your belief?

Mr. Robert Solomon: Absolutely. I'd be willing to provide whatever information you want. I'm sure we can arrange for the details of those two horrific cases, the Wooley case and the Swinson case, to be made available to your committee.

The Chair: Thank you.

Mr. Fred Burford: The professor will be available on an ongoing basis to provide assistance to the committee in carrying out its work.

The Chair: Thank you.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): In the MADD submission you mentioned increasing the two-hour limit for breathalyzer and ASD testing. I don't understand the rationale for increasing the time, given the testimony of the police that these files are taking ridiculous amounts of time to process in the first place. Why would we be asking at this point for more time for processing?

Mr. Robert Solomon: The information we have received from the police community is that particularly in cases involving bodily injury and fatalities, their first priority has to be attending to the victims. There is often not enough time to then turn their attention to the enforcement issue. Therefore, they have indicated to us that the two-hour limit for demanding an ASD or breathalyzer test sometimes results in an inability to lay criminal charges. If the driver who was impaired is immediately taken to the hospital, it may take them two hours to find the driver. Also, by the time you make the demand and they have their right to counsel, the two hours could be up. We have had situations where individuals who were impaired and had caused death and injury were not subject to a criminal charge. That's why we want to extend the two hours, both for the demand and the presumption.

Defence counsel will tell you this will work a hardship, and I totally disagree, for two reasons. First, it is in the police interest to demand the breath sample as soon as possible, because the longer they wait, the blood alcohol level of the suspect falls. So the police have no interest in stringing this out.

• 1045

The second thing is the Criminal Code would still require the officer to make the demand as soon as possible. Right now, we have a situation where the two-hour limit works to the benefit of those people who cause the greatest harm—those people who cause the fatalities and the injuries. Those are the people who end up escaping on the two hours, and that's why we propose extending it.

Mr. John McKay: Well, help me out here. If I'm a police officer and I am at a crash site, why would I not start the demand time running immediately?

Mr. Robert Solomon: The difficulty is the driver may immediately demand to go to the hospital. So they're gone. They're gone in an ambulance, and you don't catch up to them until they get to the hospital.

Mr. John McKay: Well, you're going to have that problem regardless, aren't you?

Mr. Robert Solomon: Yes.

Mr. John McKay: Then if you started the clock ticking on the demand at the site, it then doesn't matter when you catch up to them.

Mr. Robert Solomon: The difficulty with that is that there are in fact two important time limits. I'm sorry for the complexity of this. There's a time limit for making the demand, and then I think it's section 258—I always get the subsections mixed up—under which there's a deeming provision. If you miss the time limit, you can still introduce the breath, but you no longer have the benefit of the presumption—under section 258, I believe—which means that the crown—

Mr. John McKay: Then has to prove it.

Mr. Robert Solomon: —then has to prove it. They have to call a toxicologist. You know the other side is going to call an expert. And in light of the demands on crowns, and from my understanding in talking to crowns, on a simple impaired driving or simple impaired driving causing minor injury, if they have to call a toxicologist, they simply say forget it. They just don't bother.

Mr. John McKay: Could you play with that other section then, as a...?

Mr. Robert Solomon: I think my sense from the police community is that both the limits of making the demand and the presumption sometimes result in people going free who shouldn't.

Mr. John McKay: Okay.

Mr. Robert Solomon: It's a technical argument. I apologize for the complexity of it.

Ms. Susan MacAskill: Mr. McKay, I can say to you that I am extremely frustrated with this particular issue. In my own personal situation there was a three-hour limit, where the man who killed my father had a blood alcohol concentration level of .196. That reading was taken three hours after the crash. The death certificate in my father's situation shows that he died of pneumonia after we removed life support systems.

So I think it's extremely important to victims that justice is served and that impaired driving charges are laid. And if that means the extension of the limit to three hours, it is a reasonable request, based on the research we've done.

Mr. John McKay: We're not concerned so much about the request; it related more to the frustration the police were expressing to us. That's why the response was clarifying to me.

The second question is to the Canadian Automobile Association and has to do with the testimony we received that 65% of the problem is caused by 1% of the drivers. How do we focus on these people? How do we get to these people? They appear to be a lawless cohort of drivers. I see that in your recommendations you're proposing that non-traditional sanctions be included in the Criminal Code: electronic monitoring, home confinement, preventative technological devices, and ignition interlock. Is that directed to that 65%?

Ms. Elly Meister: I'll give that to Rosalinda, because she's studied this issue in great depth.

Rosalinda, would you like to respond?

Ms. Rosalinda Weisbrod (Manager, Traffic Safety, Canadian Automobile Association): I don't think it's so much that kind of approach as maybe the tiered BAC levels, where if you're looking at people who consistently and repeatedly drink and drive at those high BAC levels, you cannot treat them the same way you do the more socially responsible driver or the person who drinks and drives at .08. We think through that tiered position you acknowledge that it's a crime—drinking and driving—but that more deaths and injuries occur when people drive at those high BAC levels. You have to treat that driver much more severely than you do someone at .08, because they don't learn. They get charged and go through the system. Nothing changes and they continue to repeat. So you have to do more for that group.

• 1050

Mr. John McKay: So it's tiering of the sentencing, rather than the sentences themselves, that you see as the way to deal with that 1%.

Ms. Rosalinda Weisbrod: Right. You may integrate some of the interlock stuff and say somebody who is charged at 117 or 200 must automatically have an interlock system on the car. You might build those things in, but you have to look at it and bring in all of those different areas with the hard-core drinking driver.

The Chair: Thank you, Mr. McKay.

Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Ref.): I have just a short question for the whole panel.

Some witnesses have talked about the issue of implied consent. I'm just wondering what your feelings are there. By implied consent I mean when you are issued a driver's licence you imply and consent to be examined, stopped, checked out for sobriety and whatnot.

Mr. John Bates: The implied consent is there already. I think Professor Solomon is probably better equipped to answer that than I am, but if you have an automobile, you're responsible for what happens to that automobile and what it does. Prior to the RIDE program going to the Supreme Court, which it won twice, we approached the ministry of transport in Ontario to ask if we could have a message on the back of our licences saying “In the event that a police officer requests a breath sample, that's part and parcel of having a licence”. But then along came the Supreme Court decision that said they had the right anyway.

Mr. Robert Solomon: Driving is quite clearly a regulated and licensed activity, so a theory of implied consent will work at a provincial level when the province, which controls licensing, says they can take your licence away. When we shift to the Criminal Code—

Mr. Chuck Cadman: I'm sorry, I should have explained it; that's where I was going.

Mr. Robert Solomon: —I think our courts are going to demand, because it's coercive state power and criminal law, that we must meet the requirements of the charter.

I would argue that those charter requirements should reflect the highly regulated nature of driving and the overwhelming public interest in safe roads. So with an implied consent theory at the provincial level in terms of licensing, there's no question. I think the courts would accept that. At the federal level, I don't think you could say it's a licensed activity; therefore, any police can stop anyone at any time and demand a blood test that could be used in evidence in criminal law.

I think it's the division between provincial regulatory...and Criminal Code. I still think we can make a lot of progress in terms of the charter at the federal Criminal Code level.

The Chair: Thank you, Mr. Cadman.

Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Thank you, Mr. Chairman.

In fact,

[English]

I'm sure all my colleagues are really caught here, having to make decisions on how to change the law and receiving conflicting recommendations on how to do that. We're all trying to address it in good faith.

I just want to follow up on the issue of the limits. Some people have said zero tolerance. Some people have said to maintain it the way it is and enforce it. Some people have suggested lowering it. I don't think there is one truth out of all that; there is a combination of truths. I take your argument that it already exists in some provinces and can work in some specific fields. I just don't see it being applied across the board all over the place.

I would like to follow up on Mr. McKay's argument. This figure has really hit home—1% hard core, 65% responsibility for accidents. These people, according to the witnesses, do not respond to treatment programs. They are insensitive to advertising and awareness campaigns. They go around the law. When they don't have a licence, they have someone rent a car for them or whatever. Therefore, if you have an interlock system, they will evade it. They are still on the road and we still have 1,400 people killed every year.

• 1055

I have not seen anything in your presentations that specifically retargets that group. It could apply to them, but it doesn't target this group. As long as I'm not getting something that targets this group, I feel I'm just not hitting the depths of the problem. Can you help me out on this one?

Mr. Tony Carvalho: If we can make the laws more effective and streamline the process, we will hit those people. We want to stop impaired driving. We realize a minority causes the majority of the crashes, but that still leaves about 600 people a year who are killed by social drinkers. We can't ignore that and say that's okay because they're not.... We need a comprehensive—

Mr. Jacques Saada: Please don't get me wrong. It's not what I said. I said I could be satisfied with the first part and the awareness and so on, but I'm not satisfied with the hard core.

Mr. Tony Carvalho: Right. There are a couple of points I'd like to make. First, there's this mythology about the hard core. You said 1% of the drivers are responsible for two-thirds of the injuries; in fact that's not true. We have 74,000 injuries. Let's say some of them are multiple injuries, so we have 60,000 collisions involving injuries. If you take 60,000 as a fraction of—and I hope I'm right—Canada's 15 million licensed drivers, that's .4%. If you look at fatalities where you have—if there are multiple fatalities—1,500 fatalities and 15 million drivers, it's .01%. So I don't find that figure really helpful. I think there is a hard-core group that is disproportionately overrepresented, and our law must be streamlined to catch those individuals. I think that's important.

I have a chart I want to circulate that indicates 62% of the fatally injured drivers have blood alcohol levels above .15 and 38% don't. But we have to understand that of those with blood alcohol levels above .15, not all of them are heavy habitual drinkers.

I work on a university campus, and the pattern of drinking on campuses and at community colleges is one of heavy episodic drinking. There are large numbers of people with blood alcohol levels over .15 who end up in our statistics who are not your heavy habitual drinkers. They include the kid who may get drunk five times a year and, when he gets drunk, is above .15 and drives, kills, and injures.

So I think the idea of focusing on this heavy, habitual drinker who is a major problem misses the fact that we have large numbers of heavy episodic drinkers out there—the community college kid, the university kid, the captain of the PUC hockey team who goes out to celebrate, has 10 bottles of beer, and ends up dead.

The second point I want to make that I think is important is that the strategies we develop to streamline enforcement are going to act as deterrents. TIRF estimated that one in every 445 impaired driving trips results in a charge. If we can streamline enforcement and increase the likelihood of these people being charged, it will have its greatest effect on those who drink and drive the most.

We are recommending things that will help in terms of the heavy habitual drinker. We want mandatory assessment at the federal level for a first offence. So if you have a drinking problem, we don't want to wait until your third or fourth conviction; we don't want to wait until you kill or injure. We want you assessed following your first conviction for impaired driving. If you have a drinking problem, we want you subject to treatment. If you have a high BAC and a drinking problem, we want an interlock on your vehicle.

So a number of our strategies deal with the heavy habitual drinker, but I want to make sure we don't target or create as the epitome of evil the 45-year-old alcoholic who has a red nose, because I think we miss a large chunk of the problem. Those are the kinds of things we think will have a significant effect, even with the habitual heavy drinker.

• 1100

The Chair: Thank you, Mr. Solomon.

Mr. Murray.

Mr. Ian Murray (Lanark—Carleton, Lib.): Thank you, Mr. Chairman. I should let our witnesses know I'm not a regular member of this committee. I'm happy to be here for this important discussion, though.

I would appreciate a history lesson. Listening to Professor Solomon, I was under the impression that we may be victims of modern technology in that all of these convictions, or failures to convict because of the use of breathalyzers and the timeframe here, seem to have let a number of people off the hook.

In the old days impaired driving was still a crime, I believe. Before breathalyzers were invented, you walked the centre line and the police decided whether you were impaired or not. I don't know what the rate of conviction was. But my question is really just that: has the law changed so that the old ways of judging impaired driving no longer exist and we therefore rely solely on the technology that exists through the breathalyzers?

Mr. Robert Solomon: One of the major complaints of the police community is that they find it difficult to get a conviction for impaired driving—care and control of a motor vehicle while your ability to drive is impaired. They are frustrated by the fact that the judges tend not to accept their evidence. So it seems to me there's a problem in that if we rely solely on the observations of the police officer, we're going to miss a large number of the convictions.

We introduced the .08 law because of the difficulty of getting impaired driving convictions. I think a couple of the proposals we make are really important. The first is that we advocate the introduction to the Criminal Code of authorization for the police to use passive alcohol sensors. So the officer can quickly determine that you have been drinking. That will help the police pick up and improve their efficiency of picking up people at RIDE programs.

American studies indicate that police miss 50% of the intoxicated drivers simply using visual cues. So passive alcohol sensors will help.

We also want Parliament to enact legislation requiring people to participate in a physical coordination test, and we want it videotaped. Again, this is a recommendation that comes in large measure from the police community. So these two proposals will help increase our conviction rate if you don't have a roadside screening device, if you don't have a breathalyzer, if you have to rely on observations. I think these changes we propose will help in that regard.

The Chair: Thank you, Mr. Murray.

Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair. I think a lot of what we're hearing is certainly helpful in raising public awareness. I credit MADD, and to some extent even the brewers' association and the automobile association, for recognizing this. MADD certainly has been out front promoting it. I think public awareness generally has certainly increased. However, with all that said, any legislative changes we make, particularly things along the lines of mandatory treatment, are going to have a negligible effect unless the government is going to put the funding into it.

There are all sorts of ways to phrase that, but we heard from the Canadian Police Association and members of the police. They're under a lot of resource restraints. I guess the more blatant example I'm hearing about is mandatory treatment. It's easy for a judge to order that in a courtroom, but the person walks out of the court and there's no program available, particularly in rural Canada. I just had an alcohol and drug treatment facility close in my riding, leaving several hundred square kilometres without any treatment facilities.

Twenty-eight-day programs have been scaled back to twenty-one-day programs. I would invite all of you to comment on the importance of the resources being put there to back it up. I guess it's just a coincidence that today is budget day and I'm raising this.

Mr. John McKay: It's jurisdictional.

• 1105

Mr. Peter MacKay: Sure. Jurisdictional questions apply, but in order to have these programs, these mandatory treatments that you're advocating, legislated treatment, the money has to be there.

Mr. John Bates: The length of time it takes to get an alcoholic into treatment, a meaningful 21- or 28-day treatment, runs into the months. You can effectively say that when these people come out of the courtroom convicted and go and get treatment, what treatment? That's entirely right. And they can have drying out sessions at a hospital or something, which is pretty much useless, or they can go to Alcoholics Anonymous, which may or may not work. It does work sometimes; sometimes it doesn't. But to get into something like Bellwood or something like that, which is a very good system, could take months, and it can often be very expensive. But you're quite right. That's the loophole in the whole thing. If you can't get treatment, why impose it?

Mr. Peter MacKay: What about private funding from—

The Chair: Mr. MacKay, you asked them all to comment. Do you want them all to comment?

Mr. Peter MacKay: Yes, sure, absolutely.

The Chair: CAA.

Ms. Rosalinda Weisbrod: We totally agree with that as well, and I think that's why there is a definite need for all levels of government to work together and look at that. We all have to commit. We know this is a serious problem. If we fix things at one level, how do we ensure that it's going to be able to be carried through at the next level? So the federal government cannot act alone. It has to work in conjunction with provincial and municipal governments. We have to find a way to tie all of those together.

The Chair: Thank you.

MADD.

Mr. Tony Carvalho: I take your point that there are a lot of stakeholders, and I think a lot of stakeholders, both government and non-government, would benefit from something like that. I can't speak for them, but I'm sure that given the cost of drunk driving to insurance companies, if you look at these types of programs...again, I can't speak for them, but I'm sure they would be interested in participating to some degree in these types of programs.

Mr. Robert Solomon: First we have to make it clear to judges that they have the authority to authorize assessment and treatment, and that will require changes to the Criminal Code. That's the first step.

The second step is making sure the resources are available. Let us assure you that MADD will be knocking on the doors of your provincial counterparts in terms of ensuring that this is so.

From a technical-legal perspective, I'm not that concerned. If you have somebody who has an order to get treatment and no treatment is available, that is not wilful breach of probation as long as the individual makes a reasoned effort. I agree with you, resources are an important issue. But first let's get a Criminal Code that gives judges across the country the tools they need to get people who have drinking problems assessed and, if they need treatment, then treatment, or you don't get your licence back.

The Chair: Thank you, Mr. MacKay.

Ms. Bakopanos.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): Thank you. I have two questions, which I will address to Mr. Solomon, the legal expert.

When the Canadian Police Association came before the committee, they talked a lot about minimum sentences. For instance, they're suggesting for an accident causing bodily harm a minimum of five years and a maximum of ten years if the offender has one or more convictions. For an accident causing death, they're suggesting a minimum of seven years and a maximum of ten years if the offender has one or more convictions. So they're recommending minimum sentences.

Do you have any comments on that, Mr. Solomon, or does anybody else?

Mr. Robert Solomon: My own view is that if you ask me as a matter of justice, just desserts, whether a person who drinks, drives, and kills deserves a serious mandatory sanction, I think my response is yes. If you ask me whether I think that will do any good if we don't streamline the system to make sure we catch them in the first place, my answer is no. The heavier the maximum sentence, the more these cases are going to be contested, the more likely it is that judges won't convict, that juries won't convict, and that the lawyer will pull out all the stops, ask for a jury trial, and bump it to the next level of court.

So from the perspective of justice, I think heavier sanctions are appropriate and warranted. But I don't think that alone will improve the situation. We have to increase the likelihood of apprehension as opposed to the penalties at the end of the process.

One of the things that I found amazing—I just did a statistical study in Ontario, and the simple fact is that we have offenders with four, five, and six convictions who are still sentenced as first offenders. I would have thought you could only be a first offender once. Apparently I'm wrong, but there are reasons for that.

• 1110

Mr. Jacques Saada: Kind of like virginity.

Mr. Robert Solomon: Yes, you may may relate it to something else that only happens once.

Mr. Jacques Saada: You weren't supposed to hear that.

Mr. Robert Solomon: I'll tell you one of the things that is happening. We don't fingerprint and photograph impaired drivers under the Criminal Records Act. It is therefore difficult to confirm by fingerprint that it's the same individual. An accused will walk in and plead guilty, first appearance, before the crown has the ability to check.

Finally, the crown uses the ability to ask for a heavier sentence for a repeat offender as a bargaining chip to get a plea. As a result, we have large numbers of repeat offenders who are convicted time and time again but are sentenced as first offenders. Increasing the maximums in and of itself? I don't know. We can't even convict repeat offenders now.

Ms. Eleni Bakopanos: Mr. Solomon, I wasn't asking about the maximum; I was asking about a minimum sentence. I don't think you quite answered my question.

Mr. Robert Solomon: If you have high mandatory minimum sentences, they will still fight and object. The individual knows he's going to do five years' jail time, so he will spend every available penny to prevent that. We'll still have all of the same difficulties.

Ms. Eleni Bakopanos: That's the difficulty I have with that. There will be more court time spent, and I don't know if it will solve the problem.

The Chair: Does anybody else want to answer?

Mr. John Bates: I just wanted to add that if you had a high minimum sentence, it would be the end of the guilty plea. That would plug up the courtrooms to an amazing degree.

Ms. Eleni Bakopanos: That's my concern.

Mr. John Bates: Everybody would fight it if they knew they were going to get five years in jail for sure. The system wouldn't be able to stand it.

Ms. Eleni Bakopanos: I'll make one small comment in terms of statistics, if I may. I'll go back to Mr. Solomon, because he's the one who was using statistics other than the ones that are available to the committee.

I really think we have to have your sources, Mr. Solomon—

Mr. Robert Solomon: Absolutely.

Ms. Eleni Bakopanos: —because the statistics available through our research staff certainly don't back up what you have told us today. I want to make sure that we—

Mr. Robert Solomon: On the...?

Ms. Eleni Bakopanos: On lowering the limit and on conviction rates.

Mr. Robert Solomon: All right.

Ms. Eleni Bakopanos: Thank you.

The Chair: Thank you, Mr. Solomon.

Before we come to the end, are there any other short, quick questions? Mr. Harris.

Mr. Dick Harris: Thank you.

If we don't accept minimum sentencing for drunk drivers who kill, given that the sentences historically for drunk drivers who kill is on the low end of the zero- to fourteen-year latitude that is available now, how on earth do we begin to get judges to hand down sentences that reflect the seriousness of the crime?

Mr. John Bates: Could I answer part of that?

When we first started out seventeen years ago, the person who killed Casey Frane—he was June Callwood's son—got a ninety-day licence suspension and a $500 fine. We've come a long way in convincing judges to start ratcheting these sentences up. I think what we have now is a top sentence for impaired driving causing death that is something like eight or eight and a half years. So we're well on the way.

Mr. Dick Harris: But the bulk are within the zero to two and a half range. That's the huge majority of sentences. Six and a half years is outside the norm.

Mr. John Bates: That's right, but we have had a maximum. I think it's eight and a half years. We've come a long way from a ninety-day suspension and a $500 fine.

Mr. Dick Harris: I agree with that.

Mr. Tony Carvalho: We've debated this internally and externally. It's a very difficult issue.

As Professor Solomon says, on justice, we agree with the principle of a minimum sentence. But what is going to be the minimum sentence? I think it has to be one that reflects the justice. At the same time, it's a threshold that allows you to avoid the issues that Professor Solomon raised: that it's going to bog down the courts and that everyone is going to fight it. I'm not sure what that number us.

Mr. Dick Harris: I asked a judge one time why he didn't give a higher sentence to a convicted person. He said the number one answer that he or his colleagues could give us is that they don't want to go through the appeal process. I think that is a complete cop-out, but how do we address that?

Mr. Robert Solomon: If Parliament undertakes fundamental reform of the Criminal Code to streamline the system, I think it will send a message to the judiciary that drinking and driving is a serious criminal offence.

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I agree with Tony's comments that we're not opposed to minimum sentences, but if you make it automatically five years for impaired driving causing bodily injury, that minimum is going to trigger charter challenges, and so on. So we have to make sure those minimums don't prove to be counterproductive. I think the ones proposed by the police community would be counterproductive because they are so high.

Mr. Dick Harris: I'm not just talking about minimums; I'm talking about the precedents—

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

We'll have one quick question over here, and then we'll adjourn for the day.

Mr. John McKay: On your recommendation 9 that you amend paragraph 553(c) of the Criminal Code to only be in provincial court, what's the rationale behind that? Jurisdiction shopping?

Mr. Robert Solomon: The rationale behind that is if under the current system the crown thinks the case warrants a punishment of more than six months, they must go by way of indictment. If they go by way of indictment now, that gives the accused the right to choose to go to the next level of court and you're into a preliminary hearing, which is very expensive, which is a second trial, and you may be into a full-blown jury trial. So if the crown wants a heavier sentence, it's trapped.

Mr. John McKay: Okay, thank you.

The Chair: Thank you, Mr. John McKay.

Mr. Burford.

Mr. Fred Burford: Mr. Chair, it seems to me that the question asked is, how do you feel about minimum sentencing? You really don't get a reflection of how we all feel. I think the minimum sentencing should be studied in order to try to overcome the possible problems that Robert Solomon has brought up.

Also, I really think the BAC should be studied. After all, we have the case of Sweden that has had .02 for several years now, successfully. Why not find out from them how they dealt with all the concerns that were expressed around this table?

I certainly feel that minimum sentencing should be studied and that a study should be made of the situation in Sweden to see how they have overcome all these huge obstacles that people dream up about it.

The Chair: Thank you, Mr. Burford.

Mr. Peter MacKay.

Mr. Peter MacKay: Mr. Carvalho had a comment.

Mr. Tony Carvalho: May I make two quick comments?

The Chair: Very quick comments.

Mr. Tony Carvalho: One is that we realize there's a holistic approach to this and it's not just the changes to the Criminal Code and actions by the federal government. Nevertheless I think the changes required in the Criminal Code are absolutely essential to the ultimate solution to this.

The other point I'd like to make, very quickly, is on a personal note. In 1990 my wife and I were hit by a drunk driver. She almost died and we lost our baby Matthew. Some day I know I'll see my son, and I would like to tell him that when we had an opportunity to make a change to save millions of lives and thousands of injuries, we took that opportunity. I think we can do that. That's in front of us and it would be a shame to waste that opportunity.

The Chair: Thank you, Mr. Carvalho.

That will draw to a conclusion our hearing. Thank you very much. Your presentations have been most informative, and certainly you will make a positive contribution to our committee's deliberations.

I would ask the committee to wait a few minutes. We have to deal with the report of the steering committee.

[Editor's Note: Proceedings continue in camera]