JUST Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

COMMITTEE EVIDENCE

CONTENTS

Thursday, February 7, 2002

Á

1105

The Chair (Mr.Andy Scott (Fredericton, Lib.))

Mr. Hal Pruden (Legal Counsel, Criminal Law Policy Section, Department of Justice)

Á

1110

Á

1115

Mr. Greg Yost (Legal Counsel, Criminal Law Policy Section, Department of Justice)

Á

1120

The Chair

Mr. Vic Toews (Provencher, Canadian Alliance)

Mr. Hal Pruden

Mr. Vic Toews

Mr. Hal Pruden

Mr. Vic Toews

Mr. Hal Pruden

Mr. Vic Toews

Á

1125

The Chair

Mr. Hal Pruden

Mr. Toews

The Chair

Mr. Michel Bellehumeur (Berthier--Montcalm, BQ)

Á

1130

Mr. Greg Yost

Mr. Michel Bellehumeur

Mr. Greg Yost

Mr. Michel Bellehumeur

Mr. Greg Yost

Mr. Michel Bellehumeur

Mr. Hal Pruden

Mr. Michel Bellehumeur

The Chair

Mr. Bill Blaikie (Winnipeg--Transcona, NDP)

Á

1135

Mr. Hal Pruden

Mr. Greg Yost

Mr. Bill Blaikie

The Chair

Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC/DR)

Á

1140

Mr. Hal Pruden

Mr. Peter MacKay

Mr. Hal Pruden

Mr. Peter MacKay

Á

1145

The Chair

Â

1200

The Chair

Mr. Peter MacKay

Â

1205

Mr. Greg Yost

Mr. Peter MacKay

Mr. Hal Pruden

Mr. Peter MacKay

Â

1210

The Chair

Mr. Greg Yost

The Chair

Mr. John Maloney (Erie--Lincoln, Lib.)

Mr. Hal Pruden

Mr. John Maloney

Mr. Hal Pruden

Â

1215

Mr. John Maloney

Mr. Hal Pruden

Mr. John Maloney

Mr. Hal Pruden

Mr. John Maloney

Mr. Greg Yost

Mr. John Maloney

Mr. Hal Pruden

Â

1220

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Mr. Greg Yost

Mr. Chuck Cadman

Â

1225

Mr. Hal Pruden

Mr. Chuck Cadman

The Chair

Mr. Ivan Grose (Oshawa, Lib.)

Mr. Hal Pruden

Mr. Ivan Grose

Mr. Hal Pruden

Â

1230

Mr. Ivan Grose

The Chair

Mr. Peter MacKay

Mr. Hal Pruden

Â

1235

The Chair

Mr. Greg Yost

Mr. Peter MacKay

Mr. Greg Yost

Mr. Peter MacKay

The Chair

Mr. Greg Yost

The Chair

Mr. John Maloney

Â

1240

Mr. Hal Pruden

Mr. Greg Yost

The Chair

Â

1245

Mr. Hal Pruden

The Chair

Â

1250

Mr. Hal Pruden

The Chair

Mr. Peter MacKay

Mr. Hal Pruden

Â

1255

Mr. Peter MacKay

Mr. Hal Pruden

Mr. Peter MacKay

Mr. Hal Pruden

The Chair

Mr. Greg Yost

The Chair

Mr. Chuck Cadman

·

1300

The Chair

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 061

l

1st SESSION

l

37th PARLIAMENT

---

COMMITTEE EVIDENCE

Thursday, February 7, 2002

[Recorded by Electronic Apparatus]

Á  (1105)  

[English]

    The Chair (Mr.Andy Scott (Fredericton, Lib.)): Good morning. I bring to order the 61st meeting of the Standing Committee on Justice and Human Rights. As advertised, today we'll be hearing from witnesses from the Department of Justice pursuant to Standing Order 108(2), a study of paragraph 253(b) of the Criminal Code relating to the blood alcohol level for criminal driving offences.

    I would only say to our witnesses that the committee received requests from various sources to look at this, including also the minister's response to the same request, I presume, and decided that we would like to at least get a first glimpse at this issue. Thank very much, Hal Pruden, legal counsel, criminal law policy section of the department, and Greg Yost, legal counsel, criminal law policy section also.

    Without further ado, I would ask the witnesses to make a presentation. If we could try to keep it between 10 and 20 minutes, that would be appreciated, and it would give us a chance to have the members participate in the discussion.

    Thank you.

     Mr. Hal Pruden (Legal Counsel, Criminal Law Policy Section, Department of Justice): Thank you, Mr. Chair and members of the committee.

    I thought I would briefly give comments related to the historical development of Canada's impaired driving legislation. Then I will make a few points that relate to the topic before the committee, lowering the blood alcohol concentration offence level from above 80 milligrams per cent to 50 milligrams per cent.

    In 1921 Parliament enacted the first drinking and driving legislation within Canada. This was a law that related to driving while intoxicated. Some of the observers have told us that this, in effect, came to be a law against driving if you were falling down drunk. In 1951 Parliament saw a need to add a provision, now known as paragraph 253(a) of the Criminal Code, which prohibits driving while impaired by alcohol. At the same time Parliament made it possible to introduce evidence of blood alcohol concentration in bodily samples. So there was no offence of being over a particular level, but evidence could be used in court of what the level was if one were proceeding with an intoxicated driving offence or an impaired driving offence under paragraph 253(a).

    In 1969 Parliament, after some consideration, enacted the offence now found in paragraph 253(b), exceeding 80 milligrams per cent. They also made it an offence to refuse to provide a sample on an approved instrument when the police officers demanded one on reasonable and probable grounds. In 1976 an offence was enacted in relation to a police officer's ability to demand a sample on an approved screening device. Again, there was an offence of refusing to provide a sample where the officer had reasonable suspicion of any alcohol in the driver's body.

    In 1985, it's important to remember, Parliament enacted two new offences. They are driving while impaired, as per paragraph 253(a) of the Criminal Code, and causing a death or causing an injury.

    It is important to note too that paragraphs 253(a) and 253(b) in Canada act in a complementary way. I'll explain that by letting you know that it is an offence to drive impaired, and I cannot use as a defence the fact that I may not be over 80. If my ability to drive is actually impaired, I cannot claim that I wasn't yet over 80. That's irrelevant to the impairment, if there is actual impairment. Similarly, if my charge is driving while over 80, it is no defence for me to come before the court and say that even though I was over 80, my personal metabolism acts in such a way that at the particular blood alcohol concentration level I demonstrated, I personally am not objectively impaired in my ability to drive. In other words, I still drive well enough on an objective standard. That is irrelevant, because the offence is being over 80 while driving.

    Now I would like to make a few points specifically related to paragraph 253(a). Parliament, in considering in 1969 the introduction of paragraph253(b), which is the offence of driving while over 80 milligrams per cent, did look at a Grand Rapids study of 1964, which was the largest study to that time on the numbers of subjects and the crash risk that can be attributed to various blood alcohol concentration levels. That study showed that alcohol could not be isolated as a factor causing a rapid increase in crash risk independent of variables such as age, driving experience, and drinking experience until the 80 milligrams per cent level was reached. There certainly are increases, but they became exponential at the over-80 level. That was a significant element in the items Parliament considered in 1969. If that science has not changed, then another rationale may be necessary to support new criminal offence levels. I simply raise that as something the committee may be interested to look at.

Á  (1110)  

    The current identifying feature of a Criminal Code offence is that it carries incarceration within a penalty range. If embedded in the Criminal Code, a conviction could bar persons who are in Canada and convicted in Canada from visiting some foreign countries. The question then arises, might there be a way to create a federal criminal offence with a ticketing penalty under the Contraventions Act, rather than embedding any new offence level in the Criminal Code? Again, I simply raise that as a question the committee may have an interest in considering.

    In relation to that, it's important to remember that all provinces in Canada, except the Province of Quebec, do have a provincial licence consequence for a violation of 50. Saskatchewan uses 40, the others use 50, except Quebec, which does not have a violation level lower than the Criminal Code level. Lowering the Criminal Code level would certainly criminalize a new cohort of people who are currently subject only to the provincial offence levels. It is possible that after a code amendment, if we were to see one, lowering to 50, provinces might want to examine their levels and see if they should be different from the 50 level in the Criminal Code.

    It's interesting that the Traffic Injury Research Foundation did a survey of the public recently, and their study indicated that some 75% of the Canadian public are not aware of the provincial level in the provinces that have a level lower than the Criminal Code level. I should also mention that the consequence for driving in excess of that provincial level is typically a 12- to 24-hour licence loss; there is not a fine attached. It also varies from province to province whether they record or don't record the offence, and what they might do about a person who has subsequent violations.

    I wanted, in closing my remarks, before I turn to Mr. Yost, to explain the Australian laws, to mention that there are differing viewpoints on the scientific studies related to the following three items. Mr. Yost and I are not scientists, and we're not going to analyze or comment upon them, but we should identify them for the committee.

    These scientific areas are, first, the degradation of skills used for driving tasks that occurs at low blood alcohol concentration levels and the significance of the studies; second, the increased crash risk at various blood alcohol concentration levels; and finally, the beneficial impact seen in other jurisdictions from lowering a blood alcohol concentration level. Various countries and states in Australia and the United States, and even, one could say, the provinces in Canada, have looked at the benefits of lowering an offence level.

    Finally, I should comment that Transport Canada officials may be in a position to comment on where Canada ranks in general road safety internationally and how it compares to foreign jurisdictions.

Á  (1115)  

    Now I have provided a brief chart to the committee, in closing my remarks, I would simply point out that in several countries that are at a 50 level or lower they will impose penalties such as licence or fine consequences at the 50 level. Several of those countries will impose what we might look at as criminal consequences, such as the possibility of jail, only if somebody is over a much higher level, such as 80 or 100, possibly 110.

    With that, I'll turn it over to Mr. Yost.

    Mr. Greg Yost (Legal Counsel, Criminal Law Policy Section, Department of Justice) : Thank you.

    I believe you have received this overview of the Australian law, et vous avez le français au verso. Australia is often used as an example of a country with 0.05, and we felt it might be helpful for the committee to have an understanding of the complexities of that.

    The first and most obvious thing, when you look at the chart, is that the eight jurisdictions in Australia do not have a single model. They've all made somewhat different choices with respect to the level of fines, the potential for imprisonment, and the lengths of their suspensions. There is a major constitutional difference between Australia and Canada. In Australia it is the states that are responsible for the criminal law, as well as the traffic law. Here in Canada, of course, the federal Parliament is responsible for the criminal law, while the provinces regulate highway traffic.

    You will note under each of the Australian jurisdictions the name of the statute in which the provisions are to be found with respect to drinking and driving offences. Each Australian jurisdiction has chosen to put the provisions regarding BAC and its consequences in road safety legislation, rather than in criminal law.

    Mr. Pruden mentioned the fact of imprisonment as being almost a sine qua non of a criminal law. Certainly, all Criminal Code offences have a possibility of imprisonment in Canada. If you look down the column dealing with imprisonment, you will notice that four jurisdictions have no possibility whatsoever, no matter how many times you're caught at 0.05, of going to jail. The Australian models are very much tiered. You'll notice that they say 0.05 to 0.079. It is only at 0.08 and above that a possibility of imprisonment exists under Australian law in those states. That is, of course, the same level we currently have here in Canada. One jurisdiction, Victoria, has a possibility of imprisonment for a second offence.

    I draw your attention as well to footnote 2, regarding Queensland. It's a new way to treat this matter in Australia, from what I can see, quite recent changes to the legislation. It amounts almost to a ticketing regime. The officer, if the person is under 0.10 and is a first offender, mails them a notice setting out a prescribed fine that they must pay, and in the footnote it sets out that if you're 0.05 to 0.07, that is $100, and the length of your suspension, which is one month, provided the person surrenders their licence and pays the fine within 28 days. I would suspect that very few first offenders in Queensland actually go to court. If they do fight the charge, I would be surprised if judges were sending them to jail, but I do not know for sure.

    The only other references to BAC to be found in Australian legislation are where a couple of the states, Queensland and Victoria, I believe, have references in their criminal law to driving while intoxicated and causing death or bodily harm; if you are above 0.15, you are deemed to be intoxicated. So that's the only reference within their criminal law to a BAC, and it's not something for which you are penalized, but just a matter of evidence.

    As Mr. Pruden mentioned, we are not the experts on traffic safety. I cannot give you any idea which, if any, of these Australian models has been more effective than others in bringing down levels of drinking and driving. That's all I have to say on Australia.

Á  (1120)  

    The Chair: I thank you very much, and I go first to Mr. Toews for seven minutes.

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much.

    I appreciate your presentations. I know much of your work, Mr. Yost, in the administrative law and the suspension and seizure of motor vehicles work back in Manitoba. I know you're well recognized as an expert in your field. and I understand Mr. Pruden is certainly an expert as well in some of the legal regimes that govern this issue.

    You raised a very interesting proposal that I had never thought of, and that deals with the issue of 0.05 to 0.079 essentially being a contravention, rather than a Criminal Code offence. It would be a non-criminal, and yet an offence provision, essentially a ticketing offence. As I understand it, though, it raises in my mind a significant constitutional problem. It's an attractive resolution, but a constitutional problem. The problem is this. The federal Parliament gets involved in impaired driving and exceeding 0.08 on the basis of its criminal law power. The province gets into the administrative suspensions and road regulation on the basis of its control over property and civil rights. So I'm wondering, if we made an offence that was non-criminal between 0.05 and 0.079, what would be the constitutional authority for Parliament to move in that direction. I'm not trying to discourage you, I just think it's something worth exploring.

    Mr. Hal Pruden: I think you're quite correct in noting that Parliament does have a criminal law power, and it may have other legislative powers. Not all of our criminal law will necessarily be placed in the Criminal Code. So I would think that if one was wanting to create that type of relation, one would need to find a basis for making a criminal law offence in a piece of legislation, and then incorporating it into a ticketing regime. So I don't think we disagree on the point of the problem.

    Mr. Vic Toews: So you recognize that there is a problem. If we simply stick, let's say, the contravention offence, the over 0.05, into another act, we still have to have a constitutional basis upon which to do that. Even though we put some criminal offences in other statutes, like the old Narcotics Control Act, which was essentially based on the criminal law power, the Young Offenders Act, or the Youth Justice Crime Act, it's a criminal law power. I'm just wondering under what heading we would stick this in order not to make it a criminal offence. Because even though you were convicted of an offence under the Narcotics Control Act, and it's not under the Criminal Code, it's still a criminal record and a criminal offence.

     Mr. Hal Pruden: While it is a criminal offence, it need not necessarily be within the Criminal Code, and it need not necessarily carry incarceration within the penalty range. That is what I was hinting at.

    Mr. Vic Toews: If we put it into some kind of contraventions offence, would we avoid the problem where somebody wanting to cross over the border is asked, do you have a criminal record?

     Mr. Hal Pruden: I can't say that would never occur. I would anticipate that countries may well look at what is done for offences in other countries around the globe and say, in Australia, for example, they pay a fine, and it's seen as a ticket. They may decide that they would treat a 51 to 80 level in Canada similarly to the way they treat people with those kind of violations in other countries. We don't control what other countries might choose to do. That's the caveat on that idea. And I should say, it's not a departmental position, I'm just suggesting that it's a possibility.

    Mr. Vic Toews: I think it's a very good avenue to explore.

    I have one other thing before I close off, Mr. Chair. I'm very interested in some of the comments--and I would ask you perhaps in your deliberations to consider this--that it's the chronic impaired drivers who are causing the problems on the road. My experience in this is area in working with this type of legislation on a provincial basis and interacting with the federal legislation--and again it's more anecdotal--suggests that often it's the younger drivers, not the chronic drinkers, who are involved in serious, fatal accidents, or at least ones involving other serious bodily injury. I don't know if you can answer that very quickly, but I would certainly encourage you to look at that issue, because I think that's going to be one that will come up in front of this committee. I know MADD, Mothers Against Drunk Driving, has some material on that, but perhaps you could look at that issue.

Á  (1125)  

    The Chair: Thank you, Mr. Toews.

    Mr. Pruden.

     Mr. Hal Pruden: Thank you very much, Mr. Chair.

    I would only say that while I have seen some studies related to who is involved in drinking and driving trips and who is involved in fatal crashes, I'm not the expert there. The people from Transport Canada or road safety experts would be in a much better position to speak to the committee on that issue. Briefly, my understanding is that the young drivers , let's say 16 to 18, are not over-represented as driving fatalities. That may be explained by the fact that typically, they're not getting access to vehicles at age 16 and 17. However, when they do get access to vehicles, they do have a higher crash risk if alcohol is on board. I don't know if that helps at all.

    Mr. Vic Toews: That's fine.

    The Chair: Thank you very much.

    Mr. Bellehumeur.

[Translation]

    Mr. Michel Bellehumeur (Berthier--Montcalm, BQ): I am somewhat in agreement with the previous intervener. Once again, we want to tackle an existing problem. I cannot say that it does not exist, but I believe that the problem is mostly caused by chronic offenders. With the proposals that are being suggested to us, we are not really dealing with these chronic offenders. I do not know whether the department has looked at what it could do in order to reduce the number of chronic offenders in this area. That is my first question.

    Here is my second one. Have you consulted the provinces? It is proposed to create an offence for a rate of between 0.05 and 0.079. I have the feeling that if provinces had wished to go forward with something like this, they could have done so, as Quebec is doing for young drivers, applying a policy of zero tolerance for the first two years, I believe.

    So, do the provinces wish to have something like this? Could they create such an offence if they wanted to do so? And what is the department doing for repeat offenders?

Á  (1130)  

     Mr. Greg Yost: I will start with the question about the provinces. There are continuous consultations between Transport Canada, the Department of Justice of Canada and the provinces on that issue and many others. There is a whole range of tools to try and reduce the number of impaired drivers. It starts with the police, there are suspensions, and then there is the Criminal Code.

    As to what the department can do against chronic offenders, one must understand that we do not have many tools. We have the Criminal Code at the federal level. So we can change the prohibition period, as Parliament as done just recently. We can also establish programs such as...

    Mr. Michel Bellehumeur: Ignition lock systems.

     Mr. Greg Yost: Ignition lock systems, yes, thank you.

    Mr. Michel Bellehumeur: I had been calling for this here for five years.

     Mr. Greg Yost: Well, you've had your wish.

    Regarding the issue of between 0.05 and 0.08, nine provinces out of ten already know what measures they will take. I am not giving you a legal advice because I have not studied the matter in depth, but a province probably has the power to create some offences for a level of between 0.05 and 0.079. It would be similar to what we have for exceeding speed limits. There would be consequences such as fines, without it being a crime. That is all I have to say.

    Mr. Michel Bellehumeur: So, if I approach the Department of Justice of Quebec and ask them whether they have been consulted about impaired driving, about creating an offence for driving with a level of between 0.05 and 0.079, they will answer that yes, they have been. It is not the same as the young offenders act. They had never even heard of the bill before reading it, even though the federal people were saying that they had consulted them. I am telling you right now, I will be calling the Department of Justice this afternoon. I will probably talk to Mr. Bégin. I will ask him whether he has been consulted. Is that a yes?

[English]

    Mr. Hal Pruden: If I understand your question correctly, the answer would be that this is not a proposal coming from the Minister of Justice, but rather a reference to the committee to have a review or a re-examination of the particular question. None of the provinces have come to the federal government and asked the federal government to lower the criminal offence limit.

[Translation]

    Mr. Michel Bellehumeur: Thank you. I do not have any other question.

[English]

    The Chair: Thank you very much.

    Mr. Blaikie, for seven minutes.

    Mr. Bill Blaikie (Winnipeg--Transcona, NDP): Mr. Chairman, I think it's an important thing to note that this is not coming from the government, it's not coming from provincial governments, it's coming from whatever motivated the Minister of Justice to suggest that this committee have a look at this issue, presumably because the minister had some sympathy for the request by MADD that this issue be revisited.

    It seems to me one of the things we need to know--and I'm interested to know if there are departmental studies on this, and if there aren't, perhaps there should be, if we're going to consider this issue extensively--is, where is the problem? Is it with recidivists? What kind of behaviour would we be trying to eliminate by changing the law we have now? Is it with drunk drivers who continue to offend, so that perhaps the penalty needs to be stronger, or do we have evidence that people who are driving with blood alcohol levels between 0.05 and 0.08 are a serious problem that's overlooked by the current system? I think we don't have enough information at our disposal. I know you didn't initiate this, but you're a resource to us. What evidence do you have with respect to what the problem is?

Á  (1135)  

     Mr. Hal Pruden: There are studies on the benefits of lowering the impaired driving level per se in various countries and states, and there is no firm agreement among the scientific experts, and you may wish to hear from different witnesses who can interpret and analyze various studies on the three scientific topics. But fundamentally, proponents of lowering the level would subscribe to the idea that there is a benefit in lives saved and fatal and injurious crashes prevented if the limit is lowered. Others may take a different view, but there are scientists who have done those studies and who could be called upon to present their various views.

    On the proponent side, it is also believed that in addition to saving lives from crashes that might occur at the 51 to 80 level, if that behaviour is reduced, there is some benefit also at the high end. In other words, if a new limit is brought into force, people who are, let's say, driving at 180 will now begin to drive at 150, and the average blood alcohol concentration level seen in fatal drivers would actually drop. That is part of the argumentation. I simply point it out, and again, I'm not the expert to analyze those studies, and you may want to hear from witnesses on both sides who are expert in that area.

     Mr. Greg Yost: If I could just add, there is, as Mr. Pruden said, a pile of studies. You will discover from the experts that there has been a remarkable improvement in the entire situation. All traffic safety deaths are way down, and the percentage of deaths involving a driver who's got alcohol has come down. The Traffic Injury Research Foundation has been keeping a database on that for about 25 years. As for the Australian situation with the 0.05, that's been 10 or 15 years, and as in so many other situations, they didn't just make one change at a time, usually they brought in that, plus random breath testing, plus more check stops by the police, etc. Was it the 0.05 that made the difference, or was it the extra enforcement that made the difference? That's one of the things that you can discuss at length with these experts, because we can't.

    Mr. Bill Blaikie: As a final comment, that seems to me the kind of thing we need to get to the bottom of. It would be interesting to know what effect more rigorous checking, stopping, inspecting, however you want to refer to it, would have on achieving the kind of further reduction groups like MADD are looking for. My own sense of it is that the enforcement is seasonal, when perhaps it should be year-round.

    The Chair: Any response?

    If not, I'll go to Mr. MacKay.

    Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC/DR): Thank you, Mr. Chair, and thank you, both, for coming and providing us with this briefing.

    The first question I have is, has a similar briefing taken place already, or will it, for the new minister?

    Picking up where Bill left off about this seasonal enforcement, that's not the case, of course, though it's more concentrated around certain seasons, like Christmas. But it would also appear to me that a national strategy, because much of the enforcement falls onto the RCMP, might be examined, to concentrate in areas where we know instances of impaired driving are more predominant, not only outside certain drinking establishments, but in certain regions of the country. I'm thinking of rural Prince Edward Island and parts of the country where the statistics have consistently shown that impaired driving and deaths as a result of carnage on the roads seem to be disproportionately high.

    I wanted to get some feedback on that particular issue of a strategy from the department, because it seems that we have, out of the Department of Health for example, seen a very concentrated effort to deter young people from smoking. We have seen millions of dollars go into the promotion of a gun registry that nobody can make any connection to in regard to saving lives. Why hasn't the Department of Justice, in conjunction with other government departments, looked at promoting a very aggressive strategy to educate the public further, particularly young people?

    A lot of this seems to be done on the initiative of groups such as MADD. The RCMP, to their credit, and municipal police are very often seen in the schools, but it doesn't seem to be given the priority that it should. We can talk about lowering to 0.05, and I know that's very much the subject matter here today, but it seems that if this broad strategy is to be effective beyond simply dropping the blood alcohol concentration, it has to be part of the overall plan.

    One of the most vivid demonstrations of how blood alcohol concentration affects motor skills was demonstrated in the recently produced film by MADD that came out as part of their strategy, Taking Back the Highways, where it showed people being asked to drive through an obstacle course after drinking. That made it so obvious to anybody who saw that film. My question is, has the department contemplated undertaking this kind of a strategy of public education?

Á  (1140)  

     Mr. Hal Pruden: I would have to answer that by saying yes, and then explain why I say yes. Impaired driving is a very serious health, social, safety, policing, and law issue. The Department of Justice is primarily interested in the Criminal Code aspect, the law side of things. The Criminal code is definitely a very important piece of the puzzle, but it is not a panacea.

    I do want to point out that in 1990 ministers, federal, provincial, and territorial, in road transportation portfolios mandated the Canadian Council of Motor Transport Administrators to address issues and to develop a strategy related to impaired driving. So we have, under the CCMTA, the strategy to reduce impaired driving task force, a working group on which Transport Canada sat for many years and Justice Canada more recently has sat; policing agencies are represented, as well as the provincial governments and insurers. To me, that would be a place that does encourage all governments to develop ways to inform the public and present public education. Can more be done? Definitely. I don't disagree with that.

    Mr. Peter MacKay: Has the new minister been involved in this type of briefing in advance? I realize the short time he has been there, and there are lots of Justice priorities, but this seems to be a fairly major part of any new portfolio.

     Mr. Hal Pruden: I can't speak for the minister's staff. On the officials' side, we have not personally met with him, but we have given written briefing material.

    Mr. Peter MacKay: As much as enforcement is a problem, it occurs to me, having worked in the courts, that unless the BAC is really over 0.1, you see very few charges. I don't recall many charges even at 0.1; it was usually 120 before you actually had charges. The provinces have undertaken this strategy of charging, essentially removing licences temporarily. My colleague from the Alliance was asking questions along this line. Is there a way to have a tiered process, such as we've seen in Australia and other countries, where one of those factors, depending on the concentration, results in a set fine, a set period of suspension, or incarceration, taking a harder line on saying, look, if you are caught driving at this particular blood concentration, this is the penalty? You know in advance. That, to me, seems to do away with some of the discretion, on the one hand, but it is a stronger deterrent to say, look, here is the end result, because the consequences are so severe and the risk is so high from engaging in this activity, which so many Canadians are still engaging in.

Á  (1145)  

    The Chair: I want to bring to your attention the fact that the lights have been flashing for a while. We were advised that the vote was going to be deferred, but we only have six minutes left and there has been no deferral yet. I think there are some negotiations going on that don't seem to be going very well. Consequently, I wouldn't want anyone to sit here through a vote, and Mr. Toews is anxious to race me over there. I think we are going to have to allow members to go to the House just in case. I wouldn't want to give them cause to speak to the Speaker about me.

    We suspend. We are coming back.

Á  (1147)  

---

  (1203)  

    The Chair: I call back to order the 61st meeting of the Standing Committee on Justice and Human Rights, and I apologize for the interruption.

    I have to say, Peter, I had no idea. According to this, you've had 24 minutes now.

    Mr. Peter MacKay: Perfect. Let's make a note of that. It could be a precedent.

    The Chair: So I go to Mr. MacKay now.

    Mr. Peter MacKay: He had no idea what I was talking about.

    To pick up where we left off, my question zeroes in on there being contemplated in federal law a form of graduated sentencing. You would have as factors, of course, the concentration, perhaps the type of licence, as they are now instituting graduated licences in some provinces, and then the usual sentencing factors, including the number of previous offences. Would that, first, withstand some kind of constitutional challenge? And is this perhaps not worth examining in the interest of sending out a greater deterrent, given that although the statistics you've referred to today seem to suggest that impaired driving accidents are down, there still is such a significant number that clearly some action has to be taken?

  (1205)  

     Mr. Greg Yost: I'll answer the second part of your question first, which is whether it can be contemplated. Certainly, it can. Would there be constitutional issues involved? My initial reaction is, no, if we were going for it. Admittedly, the Australians don't face the problems we do, but I would point out that in all the Australian cases I looked at that have these graduated penalties, first, their maximums are below what we currently have. We do have for a third offence a three-year prohibition on driving. The worst I've seen is a maximum of two years. Second, the states all require that the refusal gets the maximum, so there is an incentive to blow, because the worst that can happen is the same as if one refuses. So those two have to go together. That's the way they've structured it there.

    Since 1999 we've had in the Criminal Code that it's an aggravating factor if you're over 0.16. So there is a kind of precedent there. Currently, the judges do not, however, have minimums established based upon BACs, and I'm not aware of anything in any federal statute at this moment that does anything like that. That doesn't mean we can't pioneer it.

    Mr. Peter MacKay: I guess a stronger directive as to what those sentencing factors should be would stress the need for deterrence and the need for contemplating not only the concentration, but these other usual factors that should be contemplated. It seems to me that there has been a trend in recent years to put these parameters in the Criminal Code, to clearly spell out what sentencing judges should be doing in any event, but that seems, if nothing else, to highlight the deterrence aspects of the sentencing hearings.

     Mr. Hal Pruden: We really don't have an idea of the level at which judges are already taking a look at blood alcohol concentration, for example, in crafting the sentence. The overarching principle a judge must follow is that the sentence, taking into account the circumstances of the offence and the offender, must be fit and proper. If it's not, the crown or the defence has the avenue of appeal to ensure that the fit and proper sentence is applied.

    That said, as Mr. Yost has mentioned, we do have the instruction now, which merely codifies the practice of judges prior to 1999, to take blood alcohol concentration at 160 as an aggravating factor. We do have in Canada a minimum fine that is imposed for a first offence, and unlike many countries, we have minimum jail periods that are imposed at the criminal level, over 80, on a second or subsequent offence.

    I think there would be tremendous resistance among judges to have an imposed, set guideline, which might make them less able to impose, in their minds, a fit and proper sentence for the circumstances or the offender. So there are two sides to it.

    Mr. Peter MacKay: This is my last point, Mr. Chair.

    That's the after the fact approach, of course, in sentencing, trying to send this message of deterrence, and all the sentencing principles, public protection and rehabilitation, are factors. But from the the figures supplied to me by Mothers Against Drunk Driving, it appears that the more serious problem is the number of impaired driving trips that don't result even in charges. On the preventive side, that seems to be, again, where the concentrated effort should be, whether it be public education or increased resources or directives for the RCMP to be patrolling areas of high incidence. These are figures that, as I say, came from MADD Canada: about 12.5 million impaired driving trips annually, only 1 in every 445 impaired driving trips resulting in charges that wind up before the court. It's almost a growth industry in the legal community. There are law firms and lawyers that are making a living simply defending impaired driving cases. Then there are toxicologists. It's a huge industry in the practice of law.

    As far as prevention goes, it seems that on a priority level, education about this problem doesn't rank as high as education about smoking or other government programs. I know that's not Justice's sole responsibility, but it would seem to me that with the emphasis on prevention, that does fall under the purview of the Department of Justice. Would you not agree?

  (1210)  

    The Chair: Thank you, Peter.

     Mr. Greg Yost: When I was working for the Manitoba Department of Justice on these issues and went to conferences, I do remember we had an Australian in--that was a good dozen years ago--talking about the necessity not just of increasing the severity of the penalties, which is what we're talking about here, but also increasing the public's expectation that they would be caught. So they brought in the legislation in New South Wales, as I recall, with a multimillion dollar television campaign talking about the new laws and the new penalties. The man's expression was, you have to do it boots and all, you can't just change the law and not tell people about it. So that's part of it.

    The other thing is that from the provincial point of view, there are great advantages to operating under the Highway Traffic Act, rather than the Criminal Code. We didn't have to suspend the licence on a basis of “beyond a reasonable doubt”, we could do it on a balance of probabilities. My figures are at least four years out of date, because that's when I left Manitoba, but we were returning under 1 licence out of 1,000 with people who had failed the breathalyzer, because we simply weren't interested in the usual arguments about whether the test had been done properly and all that stuff. On a balance of probabilities, we almost invariably found that the person was indeed over the rate. The provinces have a much better opportunity, in my view, to create the certainty that you're going to get a punishment than has the federal government under the Criminal Code.

    The Chair: Thank you very much.

    Mr. Maloney.

    Mr. John Maloney (Erie--Lincoln, Lib.): I am concerned about consensus, I think the committee grappled with that the last time this issue was reviewed. The Traffic Injury Research Foundation did the study, and I believe Justice may have contributed to that as well, I'm not sure--it doesn't really matter. They indicated that there was no appreciable public safety value in lowering it from 0.08, which conflicted with other individuals. I think a Mr. Mann said there'd be a possibility of reducing fatalities between 6% and 8%, which is a significant reduction. Has any attempt been made to reconcile these divergent positions?

     Mr. Hal Pruden: I believe you'll find that they still hold divergent opinions, but they would be the best witnesses to speak to their views at the present time, given a few studies that have come out since their appearance at the standing committee in 1999.

    Mr. John Maloney: All right.

    We'll go back, then, to our own legislation and the legislation of the provinces. I think the provinces did introduce their restrictions on the Highway Traffic Act at the same time we amended our act. Have there been any studies done on the reduction since the institution of respective legislation? What impact have we made, if any, on the reduction of impaired driving?

     Mr. Hal Pruden: Again, I can give you my impressions, but you really would want to hear from experts, either from Transport Canada or in the safety field. My understanding is that there was an Ontario study done, and that was in the eighties, because some of our Canadian provinces had introduced the 50 level at a very early point. Part of the difficulty was that there was a short study period. Part of the difficulty in observing any large benefit resulted from the possibility that the police forces at that time didn't have the screening devices they needed to go about enforcing the over-50 level. Of course, now, many years later, they do. I'm not aware of recent Canadian studies, but the Traffic Injury Research Foundation would be in the best position to say whether there have been any recent studies examining Canadian jurisdictions that have lowered their level to 50 as a provincial traffic law matter.

  (1215)  

    Mr. John Maloney: Also there was the matter that if we lowered it from 0.08, there'd be concern the public wouldn't support it. Do we have any polling or any data to support that concern?

     Mr. Hal Pruden: Again, there are divergent surveys, and they differ, perhaps, in the way the question is asked. Again, I'm not the best person to be commenting on the scientific survey methodologies etc., you'd want to hear from the experts.

    Mr. John Maloney: Do we have any estimate on the additional resources that would be required for our policing agencies, as well as our courts, if we lowered it, increasing the number of cases, I guess?

     Mr. Hal Pruden: Again, I think you're going to find diverging opinions. Some people would say we need more police if we're going to lower it, because we're now getting a new cohort of people who are criminalized. You would hear proponents perhaps say we're actually going to need fewer police at some point, because there will be a deterrent effect, whereby a lot of people who otherwise might get in a collision or engage in the behaviour will simply stop doing the 51 to 80 driving trips, and they may even, at the high end, drink less; even though they're still over 80, they're drinking less, and their average blood alcohol concentration is less than it was prior to lowering to 50 in the criminal law. So again, there are divergent views on the costing.

    Mr. John Maloney: You've also presented us with the Australian situation. Have there been any attempts to reconcile the results on impaired driving in Australia at the 0.05 levels with our current situation with the 0.08? Is their per capita rate of impaired driving less than ours currently? Is it working at the lower level?

     Mr. Greg Yost: There is a plethora of statistics on the relative safety of various countries, and it depends whether you go by population, by number of licensed drivers, or by estimates of billions of kilometres driven. My understanding is that the Australians are almost exactly at the same level as Canada in the rate per billion kilometres driven. Overall, traffic safety in the two countries is almost exactly the same.

    With the impaired driving situation there, they have something very much like our STRID, Strategy to Reduce Impaired Driving, except it's a strategy to reduce all accidents. Their aim, if I recall correctly, is a 40% reduction in the number of deaths on their highways. They are only looking to be able to produce 9% of that 40% through changes on drinking and driving and knocking it down. They're talking more in terms of the need to fix roads, get people to use seatbelts, and stuff like that. I may be misstating it, but I believe they've done about everything they can think of doing with respect to impaired driving, except get more policemen out on the roads to catch more people and deter some.

    Mr. John Maloney: I think Mr. Toews was referring to the common thought that perhaps one of really serious problems is the chronic alcoholic who continues to drive, and he's not deterred by any type of legislation. There was a comparison of that with youth, and I think, Hal, you indicated that we do still have a problem with youth, not the early teens, but the later teens. My recollection is that during our studies we saw that our education programs were, in fact, targeting and getting at the youth in impaired driving, with designated drivers etc., but perhaps the growing problem was their parents, the next level up, the next generation. Do you have any comments on that?

     Mr. Hal Pruden: One observation I have is that with youth, in a number of provinces now there is a graduated licensing system, so that when they enter the system of licensed driving, they must maintain a zero blood alcohol concentration level. So they're having that experience of driving without alcohol for a few years before they can even contemplate driving legally with any alcohol on board. The idea is that by that time they will have learned to separate drinking from driving. The older cohort, however, haven't gone through that graduated licence requirement, and it may be that they haven't altered a mode of behaviour that at one time included drinking and driving.

    Regardless of the generalizations, when it comes down to the individual, the choice remains: will this individual be persuaded to separate the drinking and driving behaviour or not? Unfortunately, as Mr. MacKay mentioned, we have a huge number of impaired driving trips that take place in Canada. In my own thinking--and this is not statistics--the odds of crashing and killing or injuring yourself or someone else and the odds of getting apprehended are quite low. So a person tonight might say, well, I've been drinking, but a week ago I was drinking and I was worse, and I made it home safely, I didn't crash, and I didn't get caught--should I do it again tonight? Because they've been positively reinforced the last time, there's a good chance they're going to think about doing it again tonight, particularly if they're making that decision when they've already taken on the alcohol, so that they're less able to decide what their blood alcohol concentration is or what their impairment level is.

  (1220)  

    The Chair: Thank you very much, Mr. Maloney. We're going to have to go to Mr. Cadman. He's flown in from Surrey just for this question, so I'm sure it's a doozy.

    Mr. Cadman.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): I'm so tired I forgot what it was. Thank you, Mr. Chair.

    Along the same lines, one of you, I believe, alluded to the possibility that jurisdictions that have reduced to 0.05, where there has been a positive impact, or there's a perception of a positive impact, might be doing some other things differently on the enforcement side and with the ability to make the charge stick once it gets to court. Have you got any ideas about what they may be doing differently on enforcement and on the process? I'm not asking you to advocate.

     Mr. Greg Yost: I can tell you that in Australia they do not have a charter of rights, which is perhaps an important thing to state here, because the Australian states have instituted random breath testing, which basically means a police officer can ask any driver at any time to provide a sample of breath. It's my understanding that in some of the Australian states every police car has one of these things in it, and if there's nothing else going on, their job is to pull a few drivers over, completely at random, and have them blow into the ALERT. We have a requirement that before someone can be detained--and that is a detention when a police officer tells you to stop--there has to be some suspicion that there's been a criminal offence. That's a very different thing. I'm certainly not advocating it, because I think we would have to spend an awful lot of time thinking about the charter aspects of that, whether we could even legitimately do it.

    That's part of it. The other thing is that as I understand it--I'm not sure that they still are, but they were at the time I was working in Manitoba--they had, through cooperation with insurance companies etc., an ongoing, year-round program of highly visible check-stops.

    Mr. Chuck Cadman: This comes right out of thin air. There's been a problem, certainly in B.C., as I gather from talking to law enforcement, with the problem of drug impairment, as opposed to alcohol impairment. I realize the measurement process is different, but would there be any impact in going from 0.08 to 0.05 that would cross over to the ability to deal with the drug impairment?

  (1225)  

     Mr. Hal Pruden: I'm not sure lowering would change anything, because currently, under pargraph 253(a) of the Criminal Code, driving while impaired by alcohol or a drug or any combination of them is an offence. So if I'm at 50 and I've got a drug and I'm impaired, I'm in trouble. If I'm at 81 and I've got alcohol and a drug, I'll be in trouble, if I'm actually impaired by that combination.

    Mr. Chuck Cadman: Okay.

    The Chair: Thank you very much, Mr. Cadman. It was certainly worth the trip.

    Mr. Grose.

    Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chair.

    Do we have any figures on the number of people apprehended who blow between 0.05 and 0.08? It's a tough question, I know, but what I'm after is how many people we are going to catch if we lower it to 0.05.

     Mr. Hal Pruden: That really relates to the size of the cohort, and I don't have that. Traffic safety organizations or Transport Canada may have something on that. What I have seen from British Columbia is a figure that suggests that the 51 and up cohort dealt with under provincial legislation is almost equal to the cohort dealt with under criminal legislation, but that may not be accurate, because there may be people who are actually over the federal 80 limit who are dealt with under the provincial law as if they were simply in the 51 to 80 group, so that it's skewed. But that's the one I've seen, where it's almost equal.

    Mr. Ivan Grose: That doesn't surprise me at all. It seems to me, when I read about horrendous accidents caused by alcohol, the person, through a blood test usually, is invariably in excess of 0.15. Being an experienced drinker--fortunately, I have a designated driver who is an alcoholic, and therefore doesn't drink--I know the idea that you've had one too many drinks to drive doesn't occur to you. That's silly. You stand at the bar until the conversation ends, and then, in that impaired state, you're to make up your mind whether you can drive or not? It doesn't happen. It's when I go to put the key in the lock and my driver says no that I realize.

    I'm wondering whether we are asking how many angels can dance on the head of a pin between the 0.05 and 0.08. Does it matter that much? A level of 0.05 is all right with me, although I doubt their figures--the MADD people want that figure. It's all right with me, because I don't think that's our problem. I think our problem is with people who drink much more than that. If we can somehow stop them before they get to the point that they're 0.15 or 0.25, which I've also read about, fine. But that's my major concern. Whether or not we have 0.05 or 0.08 I don't think really matters, because I don't think those are the people who are in the majority of accidents. I think they get caught in the nets, but I don't think they cause the accidents.

    So I'd like your opinion on this. Would it reduce accidents that much if we made the change from 0.08 to 0.05?

     Mr. Hal Pruden: That's a question you will need to ask the traffic safety organizations and the proponents of lowering. What I can tell you is that those who have alcohol at the 51 to 80 level are 3% of the fatally injured drivers. Those who have alcohol above 150 would represent closer to 18% to 20%, if my memory serves. So you're right, of people who have alcohol the majority will actually be over 150, and a smaller percentage will be between 51 and 80, and a slightly larger percentage will be at 81 to 150, but not as many as the group who are over 150. If you compare only those who are over 80, and you take 81 to 150, they're roughly one-quarter of the driver fatalities with the over 80 level, and three-quarters are actually over 150.

  (1230)  

    Mr. Ivan Grose: Thank you.

    The Chair: Thank you, Mr. Grose.

    Mr. MacKay.

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

    I always find Mr. Pruden's interventions refreshingly honest, and I mean that. I think it adds a great deal to the discussion.

    I have a question that comes from just rereading our report of May 1999. Within those words of wisdom we find a reference to the fact that it's extremely difficult for police to enforce--and this is based on information that comes from the traffic research--at a legal level of 50 milligrams of alcohol in a 100 milliliters of blood. The report goes on to talk about the number of resources that would be entailed, whether it be personnel or equipment, and we're talking about ALERT or the roadside screening devices. This, I suppose, is more a question of political will than departmental ability to address it.

    It seems clear from the evidence we've heard in the course of this examination in the past that the minute a person puts alcohol in their system, there is some, albeit in some cases negligible, impairment, and so it stands to reason that lowering the standard of concentration would also signal lowering the standard of tolerance for any level of alcohol in a person's blood when they make that conscious decision to get in the car.

    As far as enforcement goes, how do you respond to the suggestion put forward by Crown Attorney Andrejs Berzins that reversing the presumption or putting it back in the court of the defendant to not just raise a doubt, by having a toxicologist say, because the person weighed this much, this was how much food was in their stomach, this was the period of time over which they consumed a set amount of alcohol, the reading can't be right? He takes a very novel approach. He said, ”Amend the Criminal Code to limit evidence to the contrary to that of evidence which directly indicates that the apparatus was malfunctioning.” So make it a higher standard. It's not enough to simply say, theoretically, that reading can't be correct, because all of these factors that the machine is suppose to analyse gave us this result of 0.05. There has to be some evidence adduced that shows that the machine somehow gave an inaccurate reading. They have to be able to prove--and I've seen it done--that the calibration was off, prove that the machine itself wasn't working properly. Would that be too high a standard? Would that limit the number of cases you would see coming before the courts? It is staggering the amount of court time that is consumed by these cases, and it seems that given the current standard, it's sometimes quite simple, if you have a toxicologist who can come in and put this theory before the court that contradicts the machine's reading.

     Mr. Hal Pruden: To give the short anwer, this committee recommended in 1999 that a group of federal-provincial-territorial experts look at issues related to prosecution and enforcement. A committee has been formed, and that is one of the issues that is being looked at. There is case law, I understand, developing in the area that may provide some guidance on the direction that should be taken to address what is sometimes called the two beer defence. Very briefly, the defence would be attempting to nullify the presumption that the concentration at the time of testing is exactly the same as the concentration at the time of driving. If they nullify that, the crown has to bring in evidence of what the person actually drank, which may not be available, and the effect it had on the person, using an expert. So it's not as if the crown is somehow required to show that the defence expert is wrong, it's just that they're required to go back to the beginning, not relying necessarily on the breath testing, but actually bringing evidence that would show how much the person drank. It's always on the crown to prove beyond reasonable doubt all the elements of the offence. So what you're suggesting might help, and it is being looked at.

  (1235)  

    The Chair: Mr. Yost.

     Mr. Greg Yost: Part of this reflects the consequences if you're convicted. As long as there are possible prohibitions of driving for a year for a first offence and up to three years for a subsequent offence, I think you'll expect people to do everything they can to fight it.

    There may be technological ways to fight this. I don't want to make it sound as if all my time is spent on Australia, but I was supposed to be ready on it for today. They have, in one of their states, a system where a person, after the breath test, is asked to provide a sample of urine into a container. If they choose to contest it, as I understand it, that sealed container is sent off to a lab, and they can check it out there. So then they have the breath test plus the lab on the urine. I would think that makes it rather difficult to defeat the charge. We do not have anything like that in Canada right now.

    Mr. Peter MacKay: I guess the important thing is if there is still a feeling out there that you can beat an impaired driving charge, and I get that impression. I come from rural Nova Scotia, and I've prosecuted enough of these cases to know that it's anything but a sure thing. When you get a crown sheet with an impaired driving charge, you immediately start poring over the times, concentration, and whether the warnings were given. There are all sorts of--I'm not going to call them spurious arguments--technicalities. Everything has to be dotted.

    You'll forgive me, because it's been four years since I prosecuted a case, Mr. Yost, but with these warnings that most provinces have undertaken now, is that a sentencing factor? Is it a consideration if the sentencing judge knows that a person has received three prior provincial warnings?

     Mr. Greg Yost: My understanding is that the judges are rarely aware of previous 0.05 warnings. Most provinces give the 24-hour suspension, and that's it; it's not recorded, it does not appear on your driving record. Some provinces, however--and I believe Manitoba is one of them--do now have consequences if you get, I think, two in three years. So they have to keep track of them, as there are administrative consequences when they pull you in. So presumably, those would appear on your record. I have no idea, though. My understanding from prosecutors in Manitoba at the time was that a 0.05 didn't really affect the sentence, if the judge saw one on the guy's record; he was only interested in Criminal Code convictions.

    Mr. Peter MacKay: I guess the next question is, shouldn't it?

    The Chair: Thank you, Mr. MacKay. I guess we'll leave that one hanging.

     Mr. Greg Yost: Well, appoint me a judge, and I'll certainly pay attention to it.

    The Chair: I won't comment on the politics, I'll go to Mr. Maloney. Perhaps Mr. Maloney will make you a judge.

    Mr. John Maloney: Earlier discussion this morning made reference to the fact that the apprehension rate in relation to the number of people who continue to drive while impaired would suggest that they're prepared to roll the dice; the possibility of apprehension is not great. Would lowering the level to 0.05 have any impact, when the odds on rolling the dice have perhaps been reduced somewhat, because you'd now be caught at a lower level, in your opinion?

    And do we have something to learn from the graduated licensing, where the rates are much lower when there's zero tolerance and they lose their licence altogether if they are caught? If we're really serious about this, should we drop it even further?

  (1240)  

     Mr. Hal Pruden: I think we have to remember that the zero tolerance for young drivers comes through driver licensing legislation. Provinces do have violation levels of 50, except in Quebec.

    The people who drive currently with alcohol or who drive when they're over 80 are not a homogeneous group. There are very many different subgroups within this larger group of people. Some may well be open to persuasion. Maybe the young people who occasionally go to a party and drink to excess, who abuse alcohol, might be persuaded that this is a type of behaviour they shouldn't repeat and be influenced by the 50 legislation. On the other hand, there may be individuals, even within that youth group, who are not persuaded away from their abuse, if they don't perceive that there is a greater risk of either having a collision or being detected by the police.

    So yes, I think there are two ways to look at it. Some of the people may be persuaded, but others might not, who look more at the detection angle.

     Mr. Greg Yost: If I can just say something on that, the original legislation, as I understand it, dealing with 0.08 was based upon the scientific studies that existed at that time of crash involvement. I don't believe much has changed since then. They would tend to show that your crash involvement is essentially the same up to about 0.02 or 0.03, where there really isn't a discernible effect. It begins to rise then, and it takes off when you hit 0.08, with every 0.02 after that doubling it. It looks like a rocket taking off on the charts. So for the Parliament of Canada, which is operating under the criminal law, you really need to have something that lets you say this is really such a dangerous activity that it merits being in the Criminal Code, as opposed to being in, say, the Highway Traffic Act. If you do hear from experts on the safety and the risks, you may want to discuss with them the low levels.

    I will say that it will be for you people to make that judgment, because not even Hal and I always agree when we look at it and say, this triples the risk, but the real risk is one accident in 100 million kilometres, instead of one accident in 300 million kilometres--those numbers are made up. There are two different ways of looking at it: the relative risk is tripled, but then there's the absolute risk--how many kilometres do you have to drive at 0.04 before you have that accident?

    The Chair: I have a couple of questions, if it's okay with the committee.

    To understand this, we've got three regimes in place. We have a graduated zero tolerance thing for new entrants, let's say. We have the ticketing offences under road safety provisions in various provinces. Then we have the Criminal Code entry level at 0.08.

    One of the things the organizations that I think have prompted this discussion to take place have put to me is that there's science around 0.08, but 0.08 is not the real threshold in the context of criminal charges. I think Peter made reference to that. So there's some validity to that number, yet we find that in fact, it's only really being acted on at 0.125 or something. Is there evidence to suggest that the existence of a 0.05 threshold in provincial legislation has caused the 0.08 to be bumped up, and we are looking after everything from 0.05 to 0.125, using the provincial regime, with an understanding that the problems are exponential after a certain point in the context of consequences? Is that what's prompting the organizations that are doing advocacy with us to say we should lower the Criminal Code entry level to 0.05, so that you might actually get to 0.08? If the science says that's the number, that's where the charges should be. Probably, what we should do then is bring the number down, and with a margin of error, that's what will result.

    In keeping with what Mr. Maloney said, one could consider the possibility, I suppose, of bringing in some variation of a blended graduated road safety-0.05 thing below that. I'm trying to get my mind around what's changed. Is there any evidence, in fact, that there has been less use of a 0.08 law recently than was the case before? Would that prompt this?

  (1245)  

     Mr. Hal Pruden: I think there is an element among some organizations who propose such a change, supposing that one might be able now to more frequently charge and convict at 90 or 100 than is presently the case if we went to a 50 level. That said, in our criminal law we will not typically criminalize behaviour that is not morally opprobrious or harmful in an effort to deter somebody from a more serious kind of activity. For example, we don't criminalize shouting in fear that this will lead somebody to commit an assault.

    What if police were to say, we're going to lower it for the oblique purpose of being able to convict at 90 or convict more frequently at 100? The offence is being over 80, so 81. In the past it's been difficult, with the breath technician doing a visual reading, to say it was definitely 90; it could have been 80. So there was a truncation that occurred; they would ensure that if it was a 91 or a 92 reading, they'd truncate it to 90. The fact remains, though, that there are cases where people are convicted at 90 and convicted at 100. The thing that appears to be happening, for example, in British Columbia is that the police may say, if I simply get this guy off the road who's at 100, I can maybe wait around and spend my time on the guy who's at 150, a greater crash risk. The police officer may make that kind of decision, to go with the provincial rather than the Criminal Code sanction.

    The fact is that we do have, in many provinces, the provincial violation level of 50. And as a committee, the question you might want to consider is whether you believe that in Canada we will have a much greater effect by emphasizing this through the Criminal Code, rather than through existing provincial legislation, which is very similar to what occurs under highway traffic legislation or even criminal legislation in other countries in respect of what they do with the person who is in the 51 to 79 range?

    The Chair: Instinctively, I tend to agree with Mr. MacKay, if I heard him correctly. I would ask for your reaction to this. It's probably more effective to broaden the likelihood of being caught as the deterrent, rather than using the severity of the consequence. So when the province brings in a traffic ticket violation, ultimately, more people, and at a lower level, would then, theoretically, be caught, more people in that cohort than in a cohort that only begins at 0.08. I would defer, I guess, to Ivan, who claims expert credentials here, but my sense would be that the fear of being caught is the thing, not the fear of the consequences necessarily--that may be unique to public figures or something. If you can cast a broad net, people are going to say, whether I get caught and pay a $500 fine or a $10,000 fine, the consequences are in getting caught. Therefore, if you had a low threshold and lower consequences, my sense is that would have a greater deterrent effect than having a narrow group with very severe consequences. Am I way off? I don't mean to misinterpret what Mr. MacKay or Mr. Maloney said about this.

  (1250)  

     Mr. Hal Pruden: In a sense, it depends on the benefits that are to be achieved. Is the benefit that is sought one that will reduce death and injury? Is that best accomplished through a provincial limit, or is this really criminal behaviour that we feel, as a country, is morally incorrect or very harmful at this level, and thus should be within our criminal law, whether it's in the Criminal Code of Canada or in federal criminal legislation in another act? It really comes down to this decision: is it criminal?

    The Chair: Peter.

    Mr. Peter MacKay: I have a quick question with respect to enforcement. Mr. Chair, the principle is the one that you put in a much more articulate way than I. It is the idea that if we're to focus our energies on prevention and having a more significant impact, efforts should be aimed at increasing the likelihood of apprehension, as opposed to increasing the consequence and having an individual impact.

    Along those lines--and I guess it dovetails with ideas of graduated licences--what the provinces are doing doesn't seem, under the current system, to feed into judges' deliberations and their meting out of sentences, if a person has had several provincial violations. I question that. In a dangerous driving case, I can remember using provincial records of previous speeding convictions and previous violations. So I guess that's something we should examine further, whether suspensions for 0.05 could be considered at a sentencing hearing.

    After a 0.08 conviction under the current Code, and after a person serves the time, pays the fine, gets the licence back, would it merit consideration to say, all right, you're not only on a warning that if you're caught again, you stand to have proceedings by way of second conviction face you, but you're not to be caught with any alcohol in your system? This way you almost flag that person in the system. It shows up on CPIC, a paragraph 253(a) or (b) conviction; if they're picked up again, there's no tolerance for any alcohol in their system.

     Mr. Hal Pruden: Certainly, it would be open to a judge to consider making that type of stipulation within a probation order, that once they get their federal prohibition behind them and they've picked up their provincial driver's licence, they follow a regime where they have no alcohol in their system, assuming that it's within the period in which a judge can impose a prohibition. The judge can only make the probation order last so long.

    The other thought that comes to mind is that it's open to provinces, in their provincial licensing regimes, to determine whether they will let a person convicted of a driving offence drive with alcohol or not, just as they've chosen to say that new and young drivers cannot drive with alcohol.

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    Mr. Peter MacKay: Not to belabour this point--and maybe this is happening to a greater extent than we're aware of--is the federal department, is the minister giving any kind of a commitment to meet with attorneys general and have these discussions? It seems there are a lot of individual approaches being taken. Manitoba is doing something, the Province of Nova Scotia may try something different. If Manitoba is doing something better, and if the federal department can back up their approach by making a certain sentencing scheme more effective at the federal level, this should happen. Is there a expiration date on some of these studies that have been undertaken.?

     Mr. Hal Pruden: The strategy to reduce impaired driving comes under transport ministers, because the licensing and traffic safety really is a matter that needs to be discussed not with justice ministers, but with transport ministers. The current strategy was originally given a five-year period, it was then extended for another five-year period, and it is now being extended for a 10-year period, up to 2010. So that is ongoing. The Department of Justice is not driving what provinces may choose to do within their licensing and traffic safety regimes. Transport Canada primarily participates with provinces in that process.

    Mr. Peter MacKay: Isn't there a breakdown, then, in the linkage? If you're saying Transport Canada is doing this with the provincial transportation departments, it seems there's a bit of foisting this off on the federal department. When does Justice step in and start driving it?

     Mr. Hal Pruden: Justice participates in the strategy to reduce impaired driving, along with the provinces and Transport Canada. Keep in mind that provinces are free to pick up the suggestions of the strategy to reduce impaired driving or not. There may be, at times, sensitivities in that area, but there is an effort to cooperate, which I think is what you're suggesting.

    The Chair: Mr. Yost, and then Mr. Cadman.

     Mr. Greg Yost: I would hope the members of the committee aren't under the impression that efforts are not being made all the time to try to find an answer to the problem. I remember being part of STRID as a Manitoba official, and there were frequent meetings looking at the best practices all over and trying to come up with the package. We had our seized cars from suspended drivers, and that's spread its way across the country after it's shown some benefit. Newfoundland was the first province to start charging $40.00 to get your licence back if you got a 0.05 suspension. Those things begin to spread across as the provinces see how they fit into their systems. We are dealing with a very intractable problem. I remember when we started to get the cars of suspended drivers, to prove their suspension, we would be receiving five-page faxes with all their driving and drinking offences. There were cars and there was alcohol, no licence, they didn't care. I'm not sure there is an answer that is going to be the silver bullet.

    The Chair: Mr. Cadman.

    Mr. Chuck Cadman: I suppose this is more a comment than a question. The chair alluded to and Mr. MacKay mentioned the deterrence offered by the likelihood of apprehension. I would suggest that hand-in-hand with that goes the likelihood of a conviction. It's fair enough to say you could have a road-check at every street corner, but particularly if we go into the criminal realm, if there's not a good likelihood of a conviction, I'm not sure what the deterrent is. So I guess we're right back at this whole issue, especially if we're in the criminal realm, of closing up all the technicalities once a charge gets to court. We have to decide on the best way to get to where we all want to get here. I think there are some options laid out there, but I think the bottom line is that we want to eliminate as much as possible the crashes and the carnage involved. I think we have to bear in mind not only the likelihood of apprehension, but the likelihood of a conviction.

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    The Chair: Thank you, Mr. Cadman.

    Mr. Pruden mentioned the working committee within Transport and Justice, officials I guess, that originated, in some part, as a result of the work of this committee in 1999 on this subject. If members are in agreement, I think the prudent thing for us to do would be to ask for some kind of report in writing from that working group of officials, so we can inform ourselves of what's happening on that front. Then I would make it a matter of future business at a meeting of this committee to react to that report and what we've heard today, to see exactly how we would want to pursue this particular subject. If everyone is in agreement--and I realize we don't have a quorum to make a decision, but I think that we're among friends--I think that's probably the best way to proceed.

    I want to thank both of our witnesses for helping us, at least in some measure, sort through this. And I'd like to thank members of the committee. I never cease to be amazed at how much expert testimony we bring to this ourselves. Thank you very much.

    The meeting is adjourned.