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View Mike Wallace Profile
View Mike Wallace Profile
2015-05-11 16:34
We'll call this meeting back to order for our next hour. Pursuant to the order of reference of Wednesday, October 8, 2014, we're dealing with Bill C-590, an act to amend the Criminal Code on blood alcohol content.
Mr. Pruden is joining us from the Department of Justice, if we have any questions at all.
This bill is a private member's bill. It has one clause. To get started, I will call clause 1.
(On clause 1)
The Chair: Mr. Dechert, I know you'd like to speak to this. The floor is yours.
View Bob Dechert Profile
Thank you, Mr. Chair.
I would like to propose an amendment to subclause 1(1) of the bill.
I hope the committee members have it before them.
View Bob Dechert Profile
Right. Previously the amendment had two paragraphs in it, (a) and (b). I will not be moving (b).
Can I read it to the committee?
View Bob Dechert Profile
It says replace lines 13 to 21 on page 1 with the following:
of blood
(a) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding 10 years and
(i) in the case of a first offence, to a fine of not less than $2,000 and to imprisonment for not less than 60 days, and
(ii) in the case of a second or subsequent offence, to imprisonment for not less than 240 days; or
(b) is guilty of an offence punishable on summary conviction and is liable
(i) in the case of a first offence, to a fine of not less than $2,000, and
(ii) in the case of a second or subsequent offence, to imprisonment for not less than 30 days.
The rationale is that while we all support higher penalties for those who drive with a high blood alcohol concentration and for those who drive while impaired and cause bodily harm or death, there are concerns regarding the specific proposals for change in Bill C-590.
Accordingly where proposed in this amendment subclause 1(1) of the bill proposes an indictable offence for having a blood alcohol concentration exceeding 160 with a mandatory minimum penalty of $2,000 plus 60 days imprisonment and 240 days on the second offence.
The concern is that these very significant penalties, particularly for a first offender, could lead to many cases where the driver simply refuses to provide a sample because the penalty for the refusal offence has a mandatory minimum penalty of only $1,000. This was raised by a number of members of the committee during the examination with witnesses last week.
Part (a) of the motion therefore proposes that the offence of driving with a blood alcohol concentration of more than 160 would be a hybrid offence, so on indictment the penalties would remain as proposed in the bill and on summary conviction the mandatory minimum fine for a first offence would be $2,000, which is double the minimum fine for impaired driving, and for a second or subsequent offence the minimum penalty would be 30 days in prison.
By making these changes we believe that in most cases where the driver has a blood alcohol concentration of over 160 but there's no injury or death the $2,000 fine combined with the mandatory prohibition on driving for one year would be a sufficient deterrent. The very severe penalties on indictment should at the discretion of the prosecution be reserved for the most serious cases, for example, where the blood alcohol concentration is well above 160 or where the driver caused significant property damage.
For those reasons, Mr. Chair, we're proposing and we'll support this amendment.
View Françoise Boivin Profile
Last week, we shared a fairly important point with the sponsor of the bill. We indicated that there could be all kinds of shady goings-on in the wake of his bill.
For instance, take the offence of refusing to breathe into a breathalyzer when asked to do so by the police; this will mean that the individual would have a far lesser sentence. So there could be attempts to avoid the impact of Bill C-590.
What does the department have to say about that? Is there not a type of injustice there? Indeed, word will get around. This will make Bill C-590 completely useless. Repeat offenders and people who drink very heavily will spread the word so that they do not go beyond the 160 milligram threshold mentioned in Bill C-590. They could simply and consistently refuse to blow into the breathalyzer.
Hal Pruden
View Hal Pruden Profile
Hal Pruden
2015-05-11 16:40
First, thank you for the question.
I think it's fair to say that most of the offenders, perhaps even with refusal offences but certainly with impaired driving and over a milligram's offences, are first offenders. They're not people who have repeatedly committed the offence of impaired driving, and I doubt very much that they would be looking at the offence and saying that, for a hybrid offence if the motion is to pass, the minimum fine is $2,000 if I'm over 160; and the fine, if I refuse, is a minimum of $1,000 if the crown proceeds by way of summary conviction, which they do in most first offender cases.
For the vast majority of offences, it would be my sense that, no, the change in the motion will not lead to more people saying that they're going to refuse because it's $2,000 on summary conviction, instead of $1,000—
View Françoise Boivin Profile
Just so I make sure I understand your answer, you're saying that the majority are first offenders and as such would not be too familiar with the system. That being said then, isn't there a danger in the case of the people we want to get with Bill C-590, with the jurisprudence that the Supreme Court of Canada just set with the Nur decision concerning the mandatory minimum sentence? Because isn't there a chance that maybe somebody who could have pleaded something to the court, maybe a bad decision... We've all been young at some point in time and....
I'm not saying that it is okay to make this mistake. It is a mistake that may cost dearly.
Isn't there a potential risk--and we should see these things coming--that an absolutely pathetic case will go before the courts and lead to a situation where stricter minimum mandatory sentences may be deemed unconstitutional and inconsistent with the Canadian Charter of Rights and Freedoms, or considered to be cruel and unusual punishment under sections 7 or 12? I do not remember the exact number of the section concerned.
Hal Pruden
View Hal Pruden Profile
Hal Pruden
2015-05-11 16:43
I want to be very clear that I'm not in a position to provide charter legal advice to the committee. That being said, it might be fair to simply point out that the change proposed in the motion is to have, instead of the current minimum fine of $1,000, a minimum fine of $2,000.
View Sean Casey Profile
Lib. (PE)
View Sean Casey Profile
2015-05-11 16:44
Thank you, Mr. Chair, and I'm sure the members opposite never thought they'd hear this from me, but I welcome this amendment, which provides some discretion to the prosecution in these cases. I'm particularly glad to see it come from the government, because it has a much better chance of passing.
My question for you, Mr. Pruden—and I hope and expect that you saw the transcript or that you were present when Mr. Hoback testified—is the same question that I posed to him. It's about the practice that's grown up in at least some of the provincial and magistrates' courts where the prosecution gives notice as to whether they're going to be relying on the subsections within section 255 that impose a jail sentence.
What I mean is that a practice has grown up, whether it's by guidelines, whether it's by professional courtesy, or whether it's because there is some jurisprudence that requires them to do it, that the prosecution will give a heads-up to the court and to the accused if they intend to rely on the fact that what's before the court is a second offence or a third offence and therefore will attract a jail sentence. In many instances they exercise their discretion not to give such notice and have the case proceed as if it weren't a second offence.
My question to you is the same one I asked Mr. Hoback. Are you familiar with that practice, and if so, can you give us some sense how it has grown up, and is there anything in this bill that will have any impact on it?
Hal Pruden
View Hal Pruden Profile
Hal Pruden
2015-05-11 16:45
The short answer is, yes, I am familiar with the notice that is required of the crown before it seeks a higher penalty based on a person's prior convictions. That is statutory, so it's not just a practice. There is a requirement in the Criminal Code in section 727 for the crown to give that notice.
That having been said, it's very important to know that the provinces and the attorneys general of the provinces and of the federal government will typically have policy manuals that include guidelines on when the crown should use a look-back period, which means how far I look back before I tender that notice seeking the higher penalty. In some cases it might be 10 years. I'll look back 10 years and if the person is clear for a certain number of years, then I won't file my notice seeking a higher penalty.
The judge is always required to fashion a fit and proper sentence based on all the factors whether they're mitigating, or whether they're aggravating. Interestingly, in Canada, the crown as well as the defence may launch an appeal against the sentence if they believe the judge has not given a fit and proper sentence based on all the circumstances. One can conceive of situations where the notice is not filed because of the policy, but nonetheless the prosecution is asking for more than the minimum penalty based on all the factors surrounding the current offence.
View Mike Wallace Profile
View Mike Wallace Profile
2015-05-11 16:47
Thank you.
Further to the amendment.... By the way I should have mentioned the amendment is in order. I should have said that right up front.
Any further questions or comments on the amendment?
(Amendment agreed to)
(Clause 1 as amended agreed to)
The Chair: Shall the bill carry as amended?
Some hon. members: Agreed.
The Chair: Shall the title carry?
Some hon. members: Agreed.
The Chair: Shall the chair report the bill, as amended, to the House?
Some hon members: Agreed.
The Chair: Shall the committee order a reprint of the bill, as amended, for the use of the House at report stage?
Some hon. members: Agreed.
The Chair: We're done now with Bill C-590. I will report that back to the House tomorrow.
We do now have visitors coming to see us at five o'clock for those who can hang around. They are from the delegation from the Parliament of Ukraine. You have a notice on who's coming. They are a fairly senior legal group that wants to come to see us. If you could hang around, that would be great. If you can't, I fully understand.
We will suspend until five o'clock.
View Mike Wallace Profile
View Mike Wallace Profile
2015-05-06 15:31
Ladies and gentlemen, I'm calling this meeting to order. It is 3:30.
Today we're at meeting number 74 of the Standing Committee on Justice and Human Rights. According to the orders of the day pursuant to the order of reference of Wednesday, October 8—that seems like a long time ago—we are studying Bill C-590, an act to amend the Criminal Code in regard to blood alcohol content, which was referred to committee.
Today's witness for this bill is the mover of the bill, Mr. Hoback, who is the MP for Prince Albert.
Mr. Hoback, the floor is yours for 10 minutes.
View Randy Hoback Profile
Thank you, Chair.
Thank you, colleagues, for being here this afternoon to talk about something that's very serious. It's dear to my heart but also dear to many Canadians across Canada. It is about the ability to get drunk drivers off the road and to actually put in place better legislation to do that.
As for what Bill C-590 does, it is an act to amend section 255 of the Criminal Code to establish more severe penalties for offenders who have a blood alcohol content of twice the legal limit. In this bill, we're not going after those who have had one glass of wine or are maybe in and out of the 0.05 or 0.08, depending on what province you're in. This is actually going after people who are two sheets to the wind: they are seriously drunk and they're getting into a motor vehicle and doing great harm when they do that.
As I said when we first discussed this in the House, I am very open to ideas on, suggestions for, and amendments to this bill. This is not just my bill. In a lot of ways, this is your bill. I look forward to the committee making this bill a stronger bill by doing just that, so that the result is something we can take pride in and have some confidence in, knowing that we've made the roads, streets, and waterways in Canada safer.
What we'd be doing is that offenders who are at twice the legal limit would be “liable to imprisonment for a term not exceeding 10 years”. Penalties for the first-offence conviction will now result in a minimum fine of $2,000 and a minimum 60-day prison term. In the case of a second or subsequent offence, the minimum term of imprisonment will be 240 days. Those with a blood alcohol content over the legal limit who harm or kill someone will be additionally penalized with a minimum fine of $5,000, a minimum of 120 days in prison for a first offence, and a minimum of a 12-month term of imprisonment for a second or subsequent offence.
To share some stats, according to Statistics Canada, almost half of fatally injured drivers had a blood alcohol content of more than twice the legal limit. This level of impairment has had a devastating impact on our youth, as they make up 31% of alcohol-related deaths. I don't think there is one person in this room who can't relate to that statistic. When I went to high school, we heard of different schools throughout the district that saw youth killed before their prime because they were drinking and driving.
The June 2009 report by the House of Commons Standing Committee on Justice and Human Rights on alcohol use among fatally injured drivers indicates that the bulk of impaired driving problems lies with those drivers having a blood alcohol content over the current Criminal Code BAC of 0.08. That's a startling fact, when you think about it. This isn't about somebody who maybe had one little drink too many and is over 0.08. We're seeing very severe consequences when they get over that 0.08 or 0.05 factor, depending on where you are.
Among the tested drivers in Canada, 62.9% showed no evidence of alcohol, and that's a good sign; 37.1% had been drinking, and that's a bad sign; 4.3% had a blood alcohol content below 0.05; 2.6% had a blood alcohol content from 0.05 to 0.08; 9.4% had a blood alcohol content of 0.081 to 0.160; and 20.8% had a blood alcohol content over 0.160.
In other words, 81.5% of the fatally injured drinking drivers had a blood alcohol content over the current limit of 0.08 up to 0.16. High blood alcohol content drivers, such as those with a blood alcohol content over 160 milligrams per 100 millilitres of blood, are drunk. There's no question that they're behind a wheel and there's no question that they should not be behind the wheel. Your friends will recognize that at this level of alcohol.... These are the people who are doing the most harm on our roads. Of course, this represents a disproportionate number of fatally injured drinking drivers.
Drivers with a high blood alcohol content represent about 1% of the cars on the road at night and on weekends, yet they account for nearly half of all drivers killed at those times. That's 1%, but half the deaths. Limited resources would seem to be best deployed to target the 81.5% of the fatally injured drinking drivers who are already above the 0.08 threshold. The worst offenders are already driving with a blood alcohol content two or three times the current limit. Drivers with the highest blood alcohol content constitute the most significant danger on the roads or waterways, and they should still be a priority.
Section 255.1 of the Criminal Code states that if an impaired driving offence is committed by someone whose blood alcohol content exceeds 0.16 at the time the offence was committed, it will be an aggravating factor upon sentencing. This reflects the fact that driving with a high level of impairment—over 0.16, or double the current legal limit—is generally indicative of a serious problem.
Even if a driver with this level of impairment is being detected for the first time, it is likely that this is a hard-core impaired driver. In other words, the only thing we don't know is how many times he's been drinking and driving before they caught him. Of course, this is due to the fact that rarely is that time the first time he has driven while under the influence of alcohol.
In Saskatchewan we've experienced an increase in police-reported impaired driving incidents in each consecutive year from 2006 to 2011, according to Stats Canada. Furthermore, in 2011, Saskatchewan had the highest number of such police-reported impaired driving incidents, at almost 700 per 100,000 people, among all of the provinces. In other words, over the course of five years, the number of police-reported incidents has increased from around 500 incidents to 700 per 100,000 people.
Bill C-590 targets drivers with a high blood alcohol content by increasing specific penalties for such drivers. The goal is to prevent these drivers from reoffending, since high-risk offenders cause the greater number of collisions, with higher fatality rates, and are more likely to be repeat offenders.
On a personal note, this became an interest to me because right next to my office in Prince Albert was a guy by the name of Ben Darchuk. He ran Ben's Auto Glass and employed roughly 10 to 20 people in his business. Ben had just bought a new boat, and on May 20, 2012, he was going to head up to Christopher Lake for the long weekend. His family had already gone up to secure a camping site. He hooked up to his boat and was heading up to the lake to meet with his family. He didn't get there. He was hit by a 22-year-old who was over 0.08 and who was also on cocaine. Ben was killed instantly. Ben is survived by his wife Leanne and two daughters and a son. He never got a chance to use that new boat.
You can look at that impact on Prince Albert and at impacts around the country, where everybody has an example like that. I can call on another example of a lady in Prince Albert who was pregnant and was killed by a drunk driver. She was 17 years old. They managed to save the baby.
There are too many examples of this type of scenario happening on our streets and on our roads. I don't want to say just “our roads”, because it's also our waterways. I want to stress that. A boat is a motor vehicle. This is not just about cars. A lot of people think they can have one or two beer, or five or ten, and go on a boat or a Jet Ski and think they're safe. They aren't.
What we're trying to do here is very simple, and I look forward to amendments to make this bill even better. The goal is to get these people off the road. We need to do that. We have to make sure that they don't do harm and get the proper counselling and treatment so they don't reoffend.
Mr. Chair, I'll end it there. I'll entertain questions.
View Françoise Boivin Profile
Thank you, Mr. Hoback.
This is interesting. I will reiterate how important the bill is, as it tackles a serious issue. I think it is a scourge too. We have to try to discourage people from doing things like that.
With all the awareness campaigns out there, I don't understand why, in 2015, people—I'm pulling my hair out trying to figure out what we can do to make them understand—
I know that you are focusing on the most serious cases. I practised criminal law, so I agree with you: a blood alcohol level of 0.16 means someone is pretty drunk.
In January, in the riding of Gatineau—which I represent—50 drivers who had been arrested for driving while impaired were discharged because of unreasonable delays. Everyone was shocked by that news.
Parliament may pass legislation, but there are other major things involved, including access to justice. Justice can also be faster. We need more judges and crown prosecutors so as to avoid passing legislation that seems tough, but then having people wake up and see that 50 drivers have been let go. I am not saying they were all guilty. Nevertheless, 50 people were charged, and they were discharged because their trials could not be held within a reasonable timeframe.
I'm glad you explained what gave rise to the bill. One of my concerns is about increasing the minimum sentence, which is already established in the Criminal Code, in the sections we are dealing with. There is a theory out there that the problem is due to the fact that minimum sentences are becoming the standard. It is not uncommon for the Crown or the defence to stick to minimum sentences. We have to keep in mind the Nur ruling, which held that the mandatory minimum sentence must not be exaggerated, as it might not pass the test. Courts often stick to the minimum sentences.
Is it not dangerous to set a minimum sentence, instead of increasing maximum sentences and leaving it to the court's discretion to rule based on the case and the individual's criminal record?
I am surprised to see that MADD Canada is not supporting your initiative. I don't know whether you know why that is, but perhaps you could explain it to us.
Have you looked into the legality of increasing mandatory minimum sentences in light of the Supreme Court of Canada's recent decision on those sentences?
View Randy Hoback Profile
Thank you.
First of all, thank you for your questions. I appreciate them.
It's interesting to talk about minimums and the whole content surrounding minimums. When I talked to some of the different driving instructors, I asked what would have the most impact in getting that message not to drink and drive out to young people when they're learning how to drive. They said that it's when you can tell them what is going to happen as a result of drinking and driving.
First of all, we're going to detect it, so we have to make sure that resources are in place to detect it. Second, it's inexcusable because of time restrictions to have 50 people not go through the system and not have their day in court when they have already been charged. It is something that I think the province will have to deal with in how they fund their courts. I can't comment on that. I don't know a lot about it, so I'll leave that alone.
What I will tell you is what these driving instructors are telling me. They're saying that when you can go in there and tell students what the impact is, when you tell them about the damage and the harm they will do to people and their families.... For example, we've seen schools at graduation time take a damaged car and put it on the front lawn just to shock students at graduation about what happens when you drink and drive. They're saying that if they have the ability to explain to the students the consequences, the students will take a second look and say that it's serious.
Another comment that came out when I was discussing it with MADD is that they actually would like to see higher minimum sentences. They'd like to see them be a lot more. In fact, their concern is that they're only going to get one kick at this and we won't get enough for it. I can understand why they're coming forward. We have to balance a combination of things. Again, I will take amendments from this committee. I'm wide open. What I feel is that this is just a good place to start.
When they're talking about marijuana and driving, and drugs and driving, that's another concern. With the fact that there are some tests coming into play in the future, MADD says that suddenly students realize that if they have a joint somebody is going to detect it, so all of a sudden they say they don't want to do that. The fear of the consequences of being caught, the fact that they can be caught, is having an impact on them and they're saying that they don't want to do it. That's the goal in this case.
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