JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, February 17, 1999

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[English]

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

Mr. Harris.

Mr. Dick Harris (Prince George—Bulkley Valley, Ref.): Mr. Chairman, being a newcomer to the committee, I wasn't aware that there was a notice of motion in effect. On some of the committees I've been on before there was no notice of motion. I have a motion I'd like to move and I'd just like to seek unanimous consent from the members to waive notice of motion so that I can put the motion forward.

The Chairman: Are you asking for unanimous consent to waive the 48-hour notice period?

Mr. Dick Harris: Yes.

Mr. Reg Alcock (Winnipeg South, Lib.): Before we hear it?

Mr. Dick Harris: There's no use putting it forward if I can't get the notice waived.

Mr. Reg Alcock: I don't know whether I want to waive notice until I hear the motion. We have a chicken-and-egg problem here; which came first?

Mr. Dick Harris: In the spirit of courtesy, I'm just seeking unanimous consent to waive notice of motion.

Some hon. members: No.

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The Chairman: The witnesses today are representatives from the Ontario Ministry of Transportation, and I'd like to acknowledge the presence in the audience of the honourable Tony Clement, Minister of Transportation for the Province of Ontario.

Thank you for your interest, Mr. Clement, and for being here today.

We had originally scheduled Mr. John Hughes, director of the safety branch of the Ontario Ministry of Transportation. He has been replaced by Mr. Frank D'Onofrio, a director of the road user safety project, and Donna Connelly, a senior policy adviser.

Welcome.

Ms. Donna Connelly (Senior Safety Policy Adviser, Road Safety Program Office, Ministry of Transportation, Province of Ontario): Thank you.

The Chairman: You're the only group, so we might be a little more lenient. We generally hold the witnesses to 10 minutes of presentation and then open it up for questions from the committee. We'll be happy to hear from you for approximately 10 minutes and if you go over your time a little I'm not going to be too excited. You're the only presenters here this afternoon.

Mr. Dick Harris: If I may, Mr. Chairman, let me say that we do have a person here who would like to appear as a witness on behalf of the Ontario Ministry of Transportation.

The Chairman: We have two.

Mr. Dick Harris: Yes, I realize that, Mr. Chairman. There was a precedent set as late as yesterday in connection with the presentation from the Canadian Automobile Association; a witness by the name of Elly Meister was not on the witness list yet took a place at the witness table and was accepted as a witness, as indicated in an amended notice-of-meeting form created later on, at 3.58 p.m. Inasmuch as the precedent was set yesterday to allow an unnamed witness to appear on behalf of the CAA, I would think that the precedent would carry forward to today's meeting and that if an unnamed witness wished to step forward to sit at the table with the Ministry of Transportation that would be quite in order.

The Chairman: Who is your unnamed witness, Mr. Harris?

Mr. Dick Harris: I understand that Mr. Clement is here today—an adequate representative of the Ministry of Transportation of Ontario—and I don't know if he wishes to step forward, but I'm sure the precedent that was set yesterday with Ms. Meister would carry forward to this meeting.

The Chairman: Are you familiar with the motion that was passed by this committee yesterday confirming the policy that had been set for the duration of this sitting of Parliament?

Mr. Dick Harris: I'm not familiar with that. I understand that yesterday when it went to a vote Ms. Bakopanos brought forward the information that the steering committee could not vote on whether Mr. Clement would appear.

The Chairman: It was the full committee. Mr. DeVillers moved the motion.

Mr. Paul DeVillers (Simcoe North, Lib.): It was voted on in committee, not in the steering committee.

The Chairman: Do you have a copy of that motion, Mr. Clerk?

The Clerk of the Committee: No, but I...

[Technical Difficulty—Editor]

The Chairman: Could you advise Mr. Harris of the wording of the motion as you recall it, sir?

The Clerk: The motion was to this effect: that in light of the existing policy of the committee, the spokespersons for the Ontario Ministry of Transportation on the impaired driving study be unelected officials.

The motion was agreed to by a show of hands: yeas 6, nays 3.

The Chairman: Mr. Clement is an elected official. That would negate him sitting at the table as a witness.

We've already dealt with it, Mr. Harris. I think we should get on with the meeting.

Mr. Reynolds.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): On a point of order, Mr. Chairman, I did serve notice on the committee for a motion today. It's supposed to be heard at the start of the meeting.

The Chairman: Mr. Reynolds, we still don't have a quorum to deal with this motion. The idea was to give members more time to get here, and then we will deal with it after we hear the witnesses, which we've done with the last couple of motions we've heard.

Mr. Harris, sir.

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Mr. Dick Harris: On a point of order, I recall that at this committee meeting yesterday when the issue was brought up and a vote was called, Ms. Bakopanos said the steering committee could not vote on it—

Mr. Paul DeVillers: That was the steering committee.

Mr. Dick Harris: I realize that. Now I find that at the close of the meeting yesterday, having no indication there was any further business, many of the members left the room. Now I find that in fact the motion was dealt with after some members, including myself, had left the room believing the meeting was over. As I recall it, there was no indication from the chair that the motion would be dealt with after the witnesses were heard yesterday. I find that most unfair and inappropriate.

The Chairman: I appreciate your comments. I don't recall exactly what was said at the close of the hearing of witnesses. I think I recall that we went through the agenda of the steering committee and gave the whole committee an update on what had been discussed. That was one of the items that was discussed.

Mr. Reynolds.

Mr. John Reynolds: To go back to my original point of order, we now have a quorum. I planned to come to this meeting at the start to do just this and then leave my colleagues working on this particular project.

An hon. member: Mr. Reynolds, we have witnesses to deal with. We generally—

Mr. John Reynolds: The agreement was that we would do this at the start and if I had been able to talk to Ms. Bakopanos...

[Technical Difficulty—Editor]

...the way we do at the start of the meeting.

The Chairman: I'm not familiar with the agreement you made with Ms. Bakopanos. I apologize for that—

Mr. John Reynolds: Well, we just didn't discuss it. We talked about doing it at the start of the meeting. We've always done it at the start. We have a—

Mr. Reg Alcock: The witnesses have come a long way to be here. We're going to hear the witnesses and then we'll deal with your motion.

An hon. member: Who's the chairman?

Mr. John Reynolds: It's not very good cooperation. We have always cooperated in this committee in the past.

Mr. Larry McCormick (Hastings—Frontenac—Lennox and Addington, Lib.): On a point of order, Mr. Chair, as a visiting member to the committee—I have sat here, but it's been a while—I just wanted to take this opportunity to congratulate you, Mr. Chair, as chair of this most important committee. I know I'll appreciate—as will all members—the work that you'll do as a most competent chair. Congratulations.

The Chairman: Thank you, Mr. McCormick. Your words are very kind.

Mr. Reynolds, I've opened the meeting to hear the witnesses. We've had a motion on another witness joining the table and we've dealt with that insofar as we can. I intend to proceed with hearing these witnesses and then, following that, we'll have the vote.

Mr. John Reynolds: At what time, Mr. Chair?

The Chairman: I suspect that if we stop the wrangling it'll be, hopefully, at about 4.30 p.m., depending on how long the questioning goes on.

Mr. John Reynolds: People on this committee sometimes have other things going on at the same time. You've been looking at this certain issue for a long time and some of us are not on the committee for that.

We expected to come here and do this issue first, as we agreed to. We've always done those things that way in the past and I don't know why it's changing. I'll be back by then.

The Chairman: Thank you.

Mr. D'Onofrio or Ms. Connelly, would you like to make your presentation?

Mr. Frank D'Onofrio (Director, Safety and Regulation Division, Ministry of Transportation, Province of Ontario): Good afternoon, members of the committee.

I hold the title of director in the safety and regulation division of Ontario's Ministry of Transportation. I'm accompanied at this table by Donna Connelly, a senior policy adviser who is also with our ministry.

I'm here today speaking to you on behalf of Ontario's Minister of Transportation, who has been acknowledged by the chair here today, and I am delivering his remarks to you. We are pleased to have the opportunity to address you in person.

Today we will outline several tough drinking-and-driving measures that the Ontario government has introduced since 1995. We will also present Ontario's recommendations on how Parliament can assist the provinces by amending some of the Criminal Code provisions related to impaired driving.

Ontario has done a lot, particularly over the past several years, to combat this significant health and social problem. We have been very successful in reducing the number of fatal collisions involving impaired drivers. We recognize the key role the criminal law has played in our success. However, there are improvements to the Criminal Code that can and should be implemented by the federal government to help us address this problem.

What do we want? We want to improve the ability of police to lay charges and to process them in a timely manner. We want the rules governing the introduction of evidence tightened. We want to improve the ability of the justice system to address drug-impaired driving.

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However, the criminal law alone cannot be the answer to this problem. Ontario believes the provinces have the necessary mandate, the expertise and the flexibility to implement effective countermeasures.

Ontario has been very successful in reducing the number of collisions involving drinking and driving on our roads. In 1988, there were 382 fatal crashes involving a drinking driver. In contrast, in 1996 there were 203—a 47% reduction.

How did we do it? We have been focusing our efforts on hard-core drinking drivers. However, we continue to recognize and address the problem that social drinkers pose.

In 1996, we implemented an administrative driver's licence suspension program. If a person refuses to provide a breath sample or if the breath sample registers over the legal limit, the person gets an automatic 90-day driver's licence suspension.

In 1998, the Ministries of Transportation and Health launched a joint mandatory remedial measures program aimed at first-time and repeat offenders. If offenders fail to successfully complete this program, they do not get their licence back.

That same year, we also increased provincial licence suspension periods for repeat offenders. Second-time offenders now face a three-year licence suspension—up from two years. Subsequent offenders lose their licence for life, with the provision for third-time offenders to have this reduced to 10 years if they meet certain conditions. Ontario is the first and only jurisdiction to introduce lifetime suspensions.

Just yesterday we implemented a vehicle impoundment program. Under the program, vehicles driven by people caught driving while suspended as a result of a Criminal Code conviction will be impounded for a minimum of 45 days.

As you can see, Ontario has used a multi-faceted approach to address the problem of drinking and driving. We will continue to address this significant problem through rigorous police enforcement, aggressive prosecutions, driver improvement measures, tough sanctions and continuing public education.

However, as mentioned earlier, Ontario is looking to Parliament and, more specifically, to this committee to introduce amendments to the Criminal Code that will streamline investigative and charging procedures and improve the ability of justice personnel to lay charges, prosecute and obtain convictions for impaired driving caused by the use of drugs.

Therefore, we strongly recommend that as part of its review the standing committee include an analysis of the existing Criminal Code provisions to identify opportunities for improvement.

Areas that cause confusion and concern are pardons and intermittent and conditional sentences. Pardons, governed by the Criminal Records Act, diminish the deterrent effect of a criminal record. In addition, pardoned offenders, although previously charged and convicted, are treated as first-time offenders if they reoffend. We also believe that intermittent and conditional sentences do not adequately reflect the seriousness of the offence. If people see the punishment as lenient, penalties lose their deterrent value.

In addition, Ontario supports an amendment to the section of the Criminal Code that allows police to demand breath samples where collisions result in personal injury. Ontario would support clarifying this power to enable police officers to demand breath samples from suspects who have left the vehicle or the scene of an accident.

We are also looking to Parliament to address the issue of driving while under the influence of drugs. We welcome amendments to the Criminal Code that would provide the police with better tools to detect and charge people who drive while impaired by drugs. Forensic testing results suggest that drugs were present in 10% to 20% of drivers that died in collisions. This problem will continue to escalate if we do not take action to address it.

Today we have described how Ontario, like other provinces and territories, has been very successful in introducing innovative drinking and driving countermeasures.

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Therefore, we believe that the federal government's review of the Criminal Code should focus on streamlining the charging and prosecution process. The review also needs to address the issue of driving while under the influence of drugs.

Although Ottawa and the provinces operate within different jurisdictions, there is a common goal: to deter individuals from driving while impaired. By working together, we can save lives.

Before we go, I would like to provide the committee with a copy of Ontario's response to the six questions raised in your issues paper as well as a complete list of Ontario's drinking-and-driving initiatives.

Again, thank you for the opportunity to speak to you today.

The Chairman: Thank you.

We'll open this up for questions, in seven-minute rounds.

Mr. Harris.

Mr. Dick Harris: Thank you, Mr. Chairman.

Mr. D'Onofrio, thanks for your presentation. We're happy to have you here. I'm sure we all realize that Ontario now stands out as a leader in the fight against impaired driving, and I want to commend you on the measures that you've taken to make your province's streets and highways safer places to be.

Mr. Frank D'Onofrio: Thank you.

Mr. Dick Harris: First, as you've begun these new measures to combat impaired driving, have you made some estimates or do you have an expectation of results in about five categories—I don't know if you have estimates in all categories—including: a decrease in deaths and injuries; a decrease in the cost of health care; a decrease in court costs; and a decrease in insurance and compensation costs? Have you estimated any new numbers that would reflect the anticipated success of the programs?

Mr. Frank D'Onofrio: It's not an easy set of questions to answer. Some of our programs are relatively new. We have had some success, which we can attribute to a combination of the various programs that we have put in place. Certainly in putting in new programs, we refer to other jurisdictions that may have already put in place programs of a similar nature, programs that we know have a success rate associated with them.

I mentioned in the speech that the number of fatal crashes involving drinking and driving in Ontario certainly has come down. There's still a significant health and social problem associated with drinking and driving. In fact, crashes in which alcohol are involved cost Ontario more than $2 billion per year. That gives you some sense of the scope of the problem. In 1996, of all the drivers in collisions, 3% had been drinking; but of all drivers in fatal collisions, 16% had been drinking. Again, that gives you a sense of how problematic the situation is in terms of fatalities and personal injuries.

Some of the programs are very new. I mentioned the vehicle impoundment program for drivers who drive while suspended. We introduced that 24 hours ago. We're looking forward to monitoring how that works, but from other provinces and jurisdictions that have introduced it, we know that there is a significant safety benefit. Similarly, there is a significant safety benefit from the drinking and driving measures, the remedial measures program, that we introduced on September 30 of last year. We are just now beginning to capture the data to quantify what benefits those programs bring and how significant those benefits are.

Mr. Dick Harris: Thank you. Do you anticipate any type of serious challenge to the new legislation with respect to impounding?

Mr. Frank D'Onofrio: That's always a possibility, but we have taken great care in crafting a program that on the balance, we feel, is beneficial to safeguarding the safety of Ontario residents. We believe that would take precedence.

Mr. Dick Harris: Am I correct in understanding that your BAC level now is .05?

Mr. Frank D'Onofrio: No. It's .08.

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Mr. Dick Harris: One of the things that we've had expressed before this committee is the frustration of front-line police officers in actually getting convictions in court. The frustration has led, I guess, to the point where unless you're at 0.1 you probably would not get charged with impaired driving. Then there is the factor of a built-in margin of error in the instruments. That comes into play as well.

Needless to say, defence lawyers have made a lot of money out of these so-called loopholes. Are there some measures the Government of Ontario has brought in on a provincial level that have been able to streamline the court process to ensure a greater degree of convictions?

Ms. Donna Connelly: While Ontario has put additional resources into appointing judges and hiring additional court staff to address the drinking-and-driving cases before the courts, obviously we must work within the provisions contained in the Criminal Code—as must all provinces—and that's why we're asking this committee to review those provisions to determine where streamlining could take place.

In the appendix to our submission, we are also requesting that the working committee of justice experts from the federal, provincial and territorial levels of government be reconvened to review in detail the current provisions of the code to assist in these deliberations.

Mr. Dick Harris: As I understand it, as far as a fine goes for a first offence, the minimum penalty is now $300 and the maximum $500.

A voice: It's gone up.

Mr. Dick Harris: I think that's what it is. Historically, how has Ontario been treating first-time offenders? Has it been mostly on the soft side of that first-offence penalty or are the courts taking a hard line on first offenders in order to make it a very unpleasant experience, hoping they won't come back again?

Ms. Donna Connelly: We can't speak about the sentences handed out by the judiciary for those convicted of the impaired driving provisions, nor do we, as road safety professionals, feel that it's appropriate for us to do so. We recognize, however, that the judiciary does take the severity of the incident into account when determining an appropriate sentence. That's what we understand.

But Ontario does a number of things administratively to improve road safety, which occur as a result of a reading of .08 per se evidence, things such as the 90-day roadside suspension or, subsequent to conviction, things through our driver licensing programs as well as our driver improvement programs.

More specifically, at a reading of .05, a driver's licence can be lifted by the officer for a period of 12 hours. At a reading of .08 or for failure or refusal to blow, a 90-day administrative licence suspension is put in place on the basis of that evidence, not based on the fact that a charge is also being laid under the Criminal Code.

Upon conviction, first-time offenders are subject to a one-year licence suspension. Second-time offenders are subject to a three-year licence suspension period. Third-time offenders are subject to a lifetime suspension, but it is reducible to 10 years if certain conditions are met.

On top of that, before licence reinstatement, offenders must successfully complete a remedial measures program. At the current time, repeat offenders must undergo an appropriate assessment and an appropriate treatment program a certain amount of time prior to re-licensing and then show that they are still meeting the requirements of those conditions at the time of reinstatement.

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Mr. Dick Harris: My last question is a general one. The committee has a mandate to make changes to the Criminal Code with respect to impaired driving in order to enhance deterrence and ensure that the penalties reflect the seriousness of the crime. Do you agree that this goal is achievable by this committee in order to have the federal government take leadership in the fight against impaired driving?

Ms. Donna Connelly: We believe that no matter how severe the penalties may be, unless they're applied appropriately and consistently and are viewed to be tough, they won't provide a satisfactory level of deterrence.

Concurrently, we believe that both the federal government and the provincial-territorial governments have important roles to play and that we shouldn't be duplicating efforts. The federal government has the responsibility through the identification of offences and the determination of prosecution standards and procedures, as well as the definition of appropriate penalties, but it is appropriate for the provinces and the territories to determine appropriate sanctions for driver licensing and driver improvement, sanctions such as remedial measures programs and licence suspensions.

Mr. Dick Harris: This is a last, short question.

The Chairman: Please make it short.

Mr. Dick Harris: Do you agree that if there were ever a case to be made for deterrence, it would be in the fight against impaired driving?

Mr. Frank D'Onofrio: Yes.

The Chairman: Thank you. Mr. Brien.

[Translation]

Mr. Brien.

Mr. Pierre Brien (Témiscamingue, BQ): My first question is a general one. Are you recommending we make amendments with a view to facilitating convictions and the application of penalties that currently exist under the Criminal Code, or to make the sentences set out there even stricter? Which of these two options would you prefer?

[English]

Mr. Frank D'Onofrio: We think it's the former: streamlining and making it easier for the police to do their job and to get a conviction when people are guilty. That's what we feel the objective should be at the moment.

[Translation]

Mr. Pierre Brien: Okay. Based on your experience on what is happening in Ontario, would you say that the main problem is with drivers who reoffend or people who commit their first offence?

[English]

Mr. Frank D'Onofrio: In the statistics I quoted earlier, we find that there has been a big reduction in the number of drinking drivers. One of the problem areas is that the hard-core drinking driver continues to be out on the road. That certainly is a major problem area for us.

At the same time, we don't want the message to go out that it's only the hard-core drinking driver that is the problem. We want to focus on that, and programs like our vehicle impoundment program, which we just introduced, are intended to get at the hard-core person who habitually offends. But at the same time, we think it's important to keep the educational message out there for the social drinker, the message that even social drinking is not appropriate and that you shouldn't drink and drive at all. Both are problematic. Certainly, though, the hard-core drinker population is a problem that we're trying to target specifically.

[Translation]

Mr. Pierre Brien: Some witnesses have recommended amending the Criminal Code in order to include tiered penalties based on blood alcohol concentrations. For example, a person with a BAC of 0.15 could receive a harsher fine than someone whose BAC is 0.08. Are you recommending that we examine the possibility of stricter penalties when the BAC is higher?

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[English]

Mr. Frank D'Onofrio: I think it's important to recognize that most drinking drivers killed in crashes have very high blood-alcohol concentrations, so we feel that the emphasis should be placed on improving the effectiveness of the current provisions—and, therefore, the current BAC levels.

We should also point out that most provinces, including Ontario, already have roadside suspension programs that in effect take into account what you just asked about. In Ontario, if the BAC is between .05 and .08 we'll take the driver's licence away for a twelve-hour period. So in a sense, provinces and territories are already doing some of that, but what we wouldn't want to have is a gradient, different levels, and then have that translating into confusion in the courts and into a lot of time spent in the courts arguing about the relative nature of the offence and so forth. There's merit in keeping it clean and in concentrating on getting convictions for guilty persons at the existing level.

Ms. Donna Connelly: If I may, I will also add that as I mentioned earlier, we believe that as a general practice judges already take the BAC level into account when they are doing their sentencing.

[Translation]

Mr. Pierre Brien: Although we do not have statistics at our fingertips that prove our concerns are warranted, in Quebec, there seem to be more and more people leaving the scene of serious accidents involving injury or death and presumably caused by an impaired driver. Have you observed a similar situation in Ontario? Are you seeing more and more drivers leaving the scene of an accident, presumably because they have consumed alcohol?

[English]

Mr. Frank D'Onofrio: I don't know the numbers specifically, but we can tell you that our Highway Traffic Act in Ontario already provides for automatic licence suspensions of one year, three years and a lifetime suspension for, respectively, first, second and subsequent offences with respect to leaving the scene of an accident. We can certainly take that question back with us, and we can get those numbers for you. I don't have them here.

Donna, do you?

Ms. Donna Connelly: We don't have that information with us.

[Translation]

Mr. Pierre Brien: Are the penalties imposed in Ontario as regards licence suspension for leaving the scene of an accident among the strictest in Canada? Are you aware of what is being done elsewhere?

[English]

Ms. Donna Connelly: No. My understanding is that most of the other provinces treat the suspension periods for impaired driving and for leaving the scene of an accident in the same mode. Those are Criminal Code convictions for driving offences and they are treated as such and are subject, therefore, to their mandatory licence suspension periods. For example, we have the one-year, three-year and lifetime suspensions. Other provinces have one-year, two-year and three-year suspensions and so on.

Mr. Frank D'Onofrio: We certainly agree that this type of offence is very serious. It's the type of offence that led us to the conclusion that we needed a vehicle impoundment program. It's that kind of offence that we felt we had to go a step further for and introduce an impoundment program in order to take vehicles off the road when people are found to be driving while suspended for Criminal Code-related convictions such as that.

[Translation]

Mr. Pierre Brien: Thank you.

The Chairman: Thank you, Mr. Brien.

[English]

Mr. Peter MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair. I too want to thank the witnesses as well as other representatives, including the minister from the Province of Ontario. As has been pointed out, Ontario has taken a very proactive approach in the area of impaired driving, and we hope to benefit from your testimony today.

It appears that you've taken a rather deterrent approach in terms of the consequences of impaired driving. Given the amount of time that some of these provisions have been in place, with one only commencing today, we're still waiting to see the actual effect.

We've been hearing from other provinces in the course of the testimony. In particular, the Province of Alberta—and B.C., to some extent—has been using interlock devices as part of the sentencing. I'm wondering if you have contemplated that. Is this something that Ontario may pursue as well?

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Mr. Frank D'Onofrio: In fact, yes. Donna mentioned that as of last September under our higher penalties for drinking and driving, there's a lifetime suspension for convicted third-time drinking-and-driving offenders. But that's reducible to ten years if you do certain things, including successfully completing a remedial measures program and installing an ignition interlock system. That's where we've found it useful to add that tool.

Mr. Peter MacKay: Keeping in mind that I haven't seen the responses to the questions that were posed, these questions might be repetitive, but one suggestion that we've heard as well is mandatory fingerprinting and photographs, which we don't currently have specifically for impaired driving if it isn't an indictable offence. I suspect this would lead to a greater ability on the part of the courts to identify who actually is a first-time offender. I've personally seen problems with the CPIC system in identifying an out-of-province driver, for example, who is appearing in court and is not identified as a first-time offender. Do you feel that your ministry would encourage this initiative?

Mr. Frank D'Onofrio: We would like to take that sort of suggestion back with us and discuss it with our relevant sister ministries—the solicitor general and the attorney general—before answering it.

Mr. Peter MacKay: Fine.

This question, I believe, was answered in part. In terms of graduated penalties with respect to BAC readings, the higher the penalty, the higher the fine or the higher the sanction. Is Ontario pursuing that?

Mr. Frank D'Onofrio: What I mentioned when I answered previously is that by having a roadside licence suspension program in effect we do have a bit of that. If you have a reading of between .05 and .08, your licence is suspended right at roadside. Beyond that, our feeling is that the objective should be to strengthen the getting of convictions at the current prescribed level under the Criminal Code. That's our preference at this time.

Mr. Peter MacKay: I keep in mind what you said, but I'm referring more specifically to a provision in the code that would give the judge the discretion to levy a higher penalty based on a 200 reading, let's say, as opposed to a .01 reading.

Mr. Frank D'Onofrio: I'm probably not answering your question directly, but certainly what we find is that in their current judgments judges take the BAC level into account.

Donna, do you want to add anything?

Ms. Donna Connelly: I believe it's true that there is already a sliding scale within the provisions of the Criminal Code. Also, when we are looking at these individuals we have to look at not just what is in the provisions of the Criminal Code but, again, at what the provinces have available in terms of their tool kit in order to also be able address these drivers.

Mr. Peter MacKay: There's no question about it. In terms of what the provinces have as a tool kit, I'm curious about Ontario's approach to treatment, specifically the suggestion that we include somewhere in the Criminal Code mandatory treatment as one of the options. Would you take that into consideration as well or would you have a judge take that into consideration when levying a sentence?

Mr. Frank D'Onofrio: The new measures that were produced at the end of September last year speak directly to that point. We are requiring a remedial measures program—assessment for either education or treatment. We strongly believe that it should be done at the provincial and territorial levels, because the real hook is getting your licence back, and since the provinces and territories administer the licensing program, we feel it works much more efficiently and much better at that level. The incentive is there for the driver to complete this thing and get through it properly, because the incentive on the other side of it is that you'll get your licence back. That's part and parcel of our new approach as of September.

Mr. Peter MacKay: I ask this question in a completely non-partisan way. I'm just curious as to what's going on in Ontario, though, in terms of the funding for those types of programs. In my own province of Nova Scotia, we've often seen the courts order the assessment or the treatment, but the programs simply are not available, particularly in rural parts of the province. Is that a problem in Ontario? Is that cheek by jowl with the Department of Justice and the funding that's then made available for treatment facilities?

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Mr. Frank D'Onofrio: For the remedial program itself, the way we've set it up in Ontario is that the Ministry of Health is the contracting body. The ministry has hired an independent third party. The people who get the treatment pay $475 to go through the process, so it's not a drain on the taxpayer generally. It's a user-pay system.

Mr. Peter MacKay: You can't answer this question with respect to the most recent provincial initiative, but do you feel that there would be an increase in terms of constitutional challenges, charter challenges? To that end, one of the suggestions or options we're considering is collapsing the ability of a person to elect up and therefore benefit from a preliminary inquiry, thus putting greater emphasis on having these matters heard in provincial court.

Ms. Donna Connelly: We know that most impaired driving charges are currently hybrid. Basically, we believe that the current flexibility provided to the Crown should remain. They have the opportunity now to determine whether to proceed on a summary or an indictment basis and they feel that should continue to occur. Also, our understanding is that the Charter of Rights and Freedoms requires the right to a jury trial where the punishment is five years or more.

There is one consideration we'd like to suggest, which is that the offence of impaired driving causing bodily harm be made a hybrid offence to allow it to proceed on a summary basis as well as on an indictable basis. In a limited number of cases that might be appropriate.

Mr. Peter MacKay: Can I ask you why?

Ms. Donna Connelly: We understand that in some limited cases that would be preferable to the Crown and would make the proceedings more efficient.

Mr. Peter MacKay: So that essentially the delay—

Ms. Donna Connelly: It provides the Crown with more flexibility in determining how to proceed.

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

The Chairman: Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I thank the witnesses for their presentation. I would like to ask an initial question on impaired driving while under the influence of drugs. We know, not because we are experts, but because witnesses have told us so, that traces of drugs remain in the blood long after the impairing effects wear off. In this light, how can you control driving while under the influence of drugs, as compared to what is being done in the case of alcohol, where it seems much easier?

[English]

Ms. Donna Connelly: Ontario's recommendation with regard to drugs is that this is an important area of impaired driving that needs further consideration and review.

We don't have specific recommendations as to how procedures or standard observation programs should be put in place. Again, we feel that perhaps the committee would like to take that under advisement and, based on what experts in the field say, look at how best to proceed by looking at the law and how best to incorporate that within the code. We would definitely welcome consideration of such provisions.

Mr. Jacques Saada: Witnesses told us that the available technology is not quite up to speed for the needs. Wouldn't you be afraid that a statement saying that we are going to fight against drug-impaired driving is going to be much more of a motherhood statement at this stage of the game, given the technology that we don't have?

Ms. Donna Connelly: Because the Criminal Code is opened so infrequently, we want to ensure that there are provisions in there to address not only the current situation but the future situation in terms of the detection of drug use and the identification of impaired driving caused by drugs.

• 1625

We don't have a full answer for you on that issue. Certainly, full regard would have to be given to the rights of the accused in any provisions that are crafted, but beyond that, we really can't comment.

Mr. Frank D'Onofrio: We would recommend that the committee give due consideration to creating the flexibility within the Criminal Code in order to be able to accommodate developments as they happen—again, to give the police officers more tools and more help at roadside to deal with that type of problem.

Mr. Jacques Saada: Among the witnesses who came to see us already, some claimed that we should maintain the BAC limit as it stands now, at .08, some have said that we should bring it down to .05 or .04 and some have preached zero tolerance.

Some have given the example of Sweden, where it's at .02, I believe, and seems to be working fine. If that is the case and if it is indeed working fine, do we know whether it's attributable to the BAC limit per se or to all the other measures around that? Maybe you can elaborate on that in your decision to maintain the .05.

In a supplementary question, am I correct in understanding that while you retain the .08 limit you still have some action that you take at .05, which indeed means that .05 becomes the limit and .08 becomes a more serious limit?

Ms. Donna Connelly: No, I don't think we'd like... We'd like to say that because the legal limit in Canada is .08, as defined under the Criminal Code, that is the level our actions flow out of. We do have the twelve-hour roadside suspension at .05 for the purposes of immediately improving road safety by taking a person off the road, but there are no long-term countermeasures that kick into place at that point, so I think that particular activity can be seen as actually complementing the other provisions.

I'm not extremely familiar with the situation in Sweden. I understand that at the lower BAC levels, however, the sanctions are also much less severe and there is a sliding scale. I understand, as you have mentioned, that there may have been other countermeasures that were introduced at the same time, which may have a confounding effect on the results. Of course it is always difficult for us to take comparisons from one jurisdiction to another and determine whether or not actions that might take place in Sweden would also apply in the Canadian situation.

Again, Ontario believes that emphasis should be put on improving the effectiveness of the current Criminal Code provisions and the ability of the police and courts to work with the .08 level.

Mr. Frank D'Onofrio: We think it's really important to keep to the context of not just looking at one specific item. This is a comprehensive approach, as you mentioned, which very much looks at all of the different pieces. That's why we've said in our remarks and in our answers to the questions that there's a complementarity between what the Criminal Code can do and what the provincial and territorial actions are in terms of enforcement and in terms of administering the drivers' licence system, driver improvement and all of those things that come together as a whole to give you the good results.

Mr. Jacques Saada: Do I have time for one last question?

The Chairman: Yes.

Mr. Jacques Saada: We have a Criminal Code and then we have the application of this Criminal Code and all kinds of initiatives on a provincial basis. Is there any organization or mechanism that would allow all provinces to put in common their experiences and try to take the best out of each of these experiences?

Ms. Donna Connelly: There is. I understand that the Canadian Council of Motor Transport Administrators will be making its presentation and a submission to you. It's a very active group. Under that committee composed of federal, provincial and territorial representatives, which deals with a broad range of issues related to motor transport administration, is a particular subcommittee called STRID—strategy to reduce impaired driving. I understand that the group will be coming here and talking to you. The provinces have all been working together on a coherent plan to address the issue of impaired driving to try to reduce the numbers, and there has been quite a bit of success.

Mr. Jacques Saada: How many of the measures that you have at the present time are the result of experiences drawn either from the rest of the country or from outside the country?

• 1630

Ms. Donna Connelly: Ontario always reviews the experience in other jurisdictions—as well as research literature—before the introduction of any program with regard to road safety.

Mr. Frank D'Onofrio: Just to give you an example, with respect to the vehicle impoundment program we introduced this week, we're the seventh province in Canada to introduce it. In many cases, we're clearly building on what others have done.

Mr. Jacques Saada: Merci beaucoup.

The Chairman: Thank you. Mr. Harris.

Mr. Dick Harris: I have just a couple of quick questions, Mr. Chairman. Is there a system in place that would prevent a driver suspended in British Columbia, say, from getting a licence in Ontario? Is there a massive computer link-up somewhere?

Mr. Frank D'Onofrio: Yes, there is something called the interprovincial record exchange, which ties in the different provinces. If I understand it correctly, there's a vision of how the whole process will work, where everything is shared across all borders in Canada and then eventually, in a North American context, with the Americans south of the border. Certainly there is that capacity now to be able to check. For example, if someone moves to Ontario from Alberta, we can check the driver's licence status and any suspensions and so forth given by Alberta.

Mr. Dick Harris: Let's say there were two convictions in other provinces and then a third one in Ontario. Would the third strike apply to that driver?

Ms. Donna Connelly: Yes.

Mr. Dick Harris: Here's my last question. We were given information earlier in these hearings about something called a DRE, which is a drug recognition evaluation process that is apparently very successful in the U.S. I imagine you know about this process. Considering the seriousness and the mounting incidence of drug-related driving, is the Province of Ontario taking steps to investigate the benefits of this process and perhaps apply it in the province of Ontario?

Mr. Frank D'Onofrio: Donna mentioned the Canadian Council of Motor Transport Administrators. This is the very thing for which we find dealing through CCMTA quite useful. All the jurisdictions and players can come together and thoroughly evaluate the status of that kind of approach and whether it might be appropriate to implement in jurisdictions in Canada.

Mr. Dick Harris: Thank you, Mr. Chairman.

The Chairman: Thank you, Mr. Harris.

Mr. Brien?

Mr. Pierre Brien: No.

The Chairman: Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chairman. I have a quick question along those same lines.

With respect to a police officer's ability to gather evidence on a stop, there was a time, as you're aware, when police could demand sobriety tests that would be admissible in court. Now they're admissible solely for the purposes of determining whether there'll be an ALERT or roadside screening test.

Would the Province of Ontario favour the reintroduction of that ability on the part of the police to demand certain sobriety tests? I suppose they would have to be delineated. Would the province favour giving police officers the ability to do that and having it admissible in court?

Mr. Frank D'Onofrio: We don't have any advice for you on that today. That's the kind of thing that we would need to thoroughly work through with our sister ministries—the solicitor general and the attorney general—in order to understand what the implications are and how it might work.

Mr. Peter MacKay: Fair enough.

With respect to language, I think that some of what we're hearing is not so much a legal nuance but attitudes, stigmas, that attach to impaired driving. Somehow an impaired driving offence is not seen as a truly criminal matter, which obviously it is, given the ramifications. One suggestion has been the insertion of the words “vehicular homicide”, which they use in the United States. How would you respond to that?

Ms. Donna Connelly: Again, we would have to check that with other ministries. We don't have an opinion on that.

Mr. Frank D'Onofrio: But what we can say, I think, is that the decline in the numbers around drinking and driving show that the attitudes are changing.

• 1635

Certainly we go to great effort in Ontario on the education front, at sort of a grassroots level. Our ministry, for example, has a big presence at the community level in getting out the message that it's no longer acceptable to drink and drive, whereas at one time drinking and driving may have been pervasive. We sense that we have made a lot of progress in that area.

Ms. Donna Connelly: We would also suggest that consideration be given to looking at increasing the amount of public education that's done around the current Criminal Code provisions. We understand that the public may not be fully aware of the current provisions within the code.

Mr. Peter MacKay: I think that's very true.

Along those lines, we heard from the chief coroner for the Province of British Columbia, who has taken this on as a very personal quest in order to do what he can to help eliminate impaired driving. Is there a similar arrangement with the Province of Ontario? Is the coroner's office involved in any way? I know that may not be something that you can answer.

Ms. Donna Connelly: Yes, we have inter-ministerial committees working all the time within Ontario, involving ourselves, as the Ministry of Transportation, and the Ministry of the Solicitor General and Correctional Services, which involves not only the correctional arm and the policing services division but the Centre of Forensic Sciences. We also get together with the Ministry of the Attorney General. Because impaired driving is obviously also a health issue, we also have participation from the Ministry of Health, the Ontario Alcohol and Gaming Commission and the Ministry of Community and Social Services. We're quite a large group around the table.

Mr. Peter MacKay: Generally, I guess, your province has been a leader in all of this, but one question that has been asked of us—and you've probably heard it—is that given the fact that the province gains a great deal in terms of tax revenues from the sale of alcohol, do you feel that there is more the province could be doing in terms of financial commitment to treatment in particular?

Mr. Frank D'Onofrio: To treatment? What do you mean?

Mr. Peter MacKay: Well, to treatment facilities within the province... In an earlier question I put to you, you indicated that the province is funding significant treatment programs through its health department.

Ms. Donna Connelly: The Ministry of Health puts a significant amount of money into treatment and rehabilitation programs, quite separately from our remedial measures program, which is on a user-pay basis. Anyone who wishes to receive treatment for an alcohol problem is able to get it, and additional funds have been put into that. I don't have the exact figures with me today, but that has been done.

Mr. Frank D'Onofrio: Overall, I think, in our province—I don't have the exact statistics—if you look at it on a very holistic basis in regard to tackling the problem of drinking and driving, the resources that have been applied have been significant and are increasing. Donna mentioned the courts earlier. We have had significant moneys flowing to the courts to make sure that the offences flow through the courts and that convictions can be had. We have had significant increases in moneys flowing to RIDE programs. All of those things add up in the same way. As well, there is the remedial measures program.

Mr. Peter MacKay: Are the RIDE programs provincially sponsored?

Mr. Frank D'Onofrio: The Ministry of the Solicitor General provides those dollars.

Ms. Donna Connelly: Increased dedicated funding over a five-year period was introduced in the last Ontario budget.

Mr. Peter MacKay: Thank you.

The Chairman: Thank you, Mr. MacKay. In reference to the tape you referred to, the clerk has a copy of that tape from the British Columbia coroner and if anyone wants to view it we can obtain it from the clerk.

Mr. Peter MacKay: Terrific. Thank you.

The Chairman: Mr. DeVillers.

Mr. Paul DeVillers: Thank you, Mr. Chair.

The committee has been hearing some rather conflicting evidence on conviction rates, either in provinces or across the country. Do you have a rate of conviction in which the number of charges laid for either impaired or being over .08 actually result in a conviction, either through a plea of guilty or a conviction at trial?

Ms. Donna Connelly: We don't have charge-and-conviction rates with us today.

Mr. Paul DeVillers: Are they available?

Ms. Donna Connelly: They should be available. I know that on a federal basis Juristat does provide some information about that.

Mr. Paul DeVillers: Could you provide those to the committee as well?

Ms. Donna Connelly: Yes.

• 1640

Mr. Paul DeVillers: My other question deals with the concept of minimum fines. In your Comprehensive Road Safety Act, there are some minimum fines that are imposed, and the Canadian Police Association, for instance, is recommending to this committee that the Criminal Code be amended to impose minimum fines on impaired driving charges, yet other witnesses... Even yesterday, the law professor, Professor Solomon, who was here with MADD, indicated that there's a concern with minimum fines. Sometimes the judges will not convict if they feel their hands are tied because there's a minimum fine imposed; they feel that might be a deterrent to getting some convictions they might otherwise get. I've heard this theory expressed about other legislation as well.

Do you have any comment on that or do you have any concern with minimum fines in that way?

Ms. Donna Connelly: While consideration can be given to that, I think it also needs to be recognized that in the various provinces there are also fees—not fines—imposed upon convicted impaired drivers for licence reinstatement, for assessment and treatment programs and for remedial measures programs, for example. The cost of being reinsured is very high when you have an impaired driving conviction on your record. Perhaps the committee would like to take those sorts of things into account when they're looking at those provisions.

Mr. Paul DeVillers: But on the actual concern that there might be convictions lost because of the judiciary's concern about having its hands tied by a minimum fine...

Ms. Donna Connelly: We would just ask that you look at the other fees that impaired drivers also have to pay.

Mr. Frank D'Onofrio: Again, it would come back to looking at it in a very comprehensive way. We in Ontario have used fines and now have some of the stiffest fines in North America, across a wide range of road safety offences.

Just to give you an example, again effective last November, drivers who are convicted of driving while their licence is suspended as a result of the Criminal Code now face higher fines under our Highway Traffic Act, fines that range from $5,000 to $50,000.

Again, we need to look at the justice system and at education all through the system to make sure that people understand the severity of the problem and understand why the fines need to be applied. You have to look at it in a comprehensive way—

Mr. Paul DeVillers: Yes.

Mr. Frank D'Onofrio: —but we have used fines and we think they're an important part of the overall equation.

Mr. Paul DeVillers: Okay. Finally, with respect to your recommendation on streamlining prosecutions, the administration of justice is provincial. Do you have any specific recommendations for the committee on amendments to the Criminal Code that would assist the province in streamlining?

Ms. Donna Connelly: There are a few within our appendix that we'll be leaving with the committee.

Mr. Paul DeVillers: Will we get that later?

Ms. Donna Connelly: Yes. But again, we also suggest that perhaps the federal-provincial-territorial committee of justice experts should have a look at that.

Mr. Paul DeVillers: Thank you very much.

The Chairman: Thank you, Mr. DeVillers.

Mr. McCormick.

Mr. Larry McCormick: Thank you, Mr. Chair. I have just a short comment and a short question. I do thank the witnesses for being here and I commend the committee. I'm glad to see the province here on this most important study and to see the action that will come from it.

I have to reflect. We all have our own stories and concerns about the tragedies that are ongoing, but in this calendar year a young woman came to my office who had lost her husband, two children and a niece in an accident near Kingston.

I just want to mention that I'll be glad to follow up on this DRE testing in the United States, because some researchers have told us for years that a small amount of alcohol mixed with a small amount of drugs—which may not test as high as it would if it were all alcohol—is such an explosive combination that we do have to be concerned about this, and that's without getting into the jurisdiction and what we can or cannot do.

In regard to my question, though, you talked about the provision that you brought in yesterday. I'm glad to hear that and I'm sure it will help. In this particular case near Kingston—four people are no longer with us—the driver was charged with DWI and with stealing a car from his brother. I know that case is coming before the courts.

• 1645

Everything will help, but I just wonder if you could share anything on this legislation or this provision as to... I wouldn't want to see somebody's vehicle impounded if it had been stolen or something. I'm sure you allow for all of that.

It's just a short question, Mr. Chair.

Mr. Frank D'Onofrio: Under our vehicle impoundment program, we have four appeal grounds that allow the vehicle owner to recover the vehicle through an appeal process through the Licence Suspension Appeal Board. One of the four grounds is that the vehicle was stolen. In that case, the person could make their case and also would not have to pay for the towing and storage charges that would normally come out of the program.

Mr. Larry McCormick: Thank you, Mr. Chair. I just wanted to get my comments on the DRE on the record.

Thank you, sir.

The Chairman: Thank you, Mr. McCormick.

Mr. John Reynolds: I have one short question.

The Chairman: Sure.

Mr. John Reynolds: How long does it take? If your car was stolen and used in a case and you can appeal to get it back, how long does it take to get it back?

Mr. Frank D'Onofrio: An appeal can be filed the minute the vehicle is impounded. We have put in place a very aggressive approach in terms of dealing with appeals, especially in the type of situation that was described here.

Mr. John Reynolds: So how long would it take?

Mr. Frank D'Onofrio: Our target is within 48 to 72 hours from the time it's appealed.

Mr. John Reynolds: Thank you.

The Chairman: Further to that, Mr. D'Onofrio, you've mentioned one appeal ground, that of theft. What are the other three?

Mr. Frank D'Onofrio: One is that the driver was actually not convicted at the time he was stopped by the police officer. Another is that there was some exceptional hardship that needs to be taken into consideration, and this is an appeal that can can be used only one time by any vehicle owner.

Last is that there was due diligence exercised in terms of trying to find out if the driver had a valid driver's licence or not. In that regard, we are making that information available to vehicle owners. It's an automated telephone inquiry service. You can dial them up by Touch-Tone phone and find out; you just put in the driver's licence number and we will tell you whether the status is valid or not. There are different ways of meeting due diligence, and of course it varies due to the circumstances in the case, but it is one of four provisions.

The Chairman: Thank you.

With respect to your 90-day suspension if someone blows over .08, an impaired charge would be laid as well. If for some reason that impaired charge is withdrawn or even dismissed within that 90-day period, what happens to the 90-day suspension?

Ms. Donna Connelly: The 90-day suspension continues because it is completely separate from the charge-and-conviction proceedings.

The Chairman: How do you reconcile that with one of your appeal grounds, which is that if the person is not convicted the vehicle will be returned?

Ms. Donna Connelly: Are you talking about the vehicle impoundment program? I thought you were talking about the administrative licence suspension—

The Chairman: I am. I'm trying to reconcile your response with vehicle impoundment: if you're not convicted, the car is returned with 48 or 72 hours, and in your other situation, the 90-day suspension stands.

Ms. Donna Connelly: Again, in both instances, because they are administrative programs, they're based on the per se evidence. The administrative licence suspension program is based on the fact that there is factual evidence that you either blew over .08 or you refused or were unable to blow. In the vehicle impoundment program, it's the fact that a driver record exists that shows you were convicted of driving while suspended.

The Chairman: Have there been any appeals to the 90-day suspension when a charge of impaired driving has been either withdrawn or dismissed?

Ms. Donna Connelly: Yes, there have been a few.

The Chairman: What were the results?

Ms. Donna Connelly: I'm not quite sure. I believe that the last time I checked there was something like two charges where the appeal was successful. I'm sorry, but I shouldn't really have said even that, because I'm reaching back in my memory.

The Chairman: Could you look into that and provide the committee with that information?

Ms. Donna Connelly: Yes, we can provide you with those numbers.

The Chairman: Thank you very much.

Mr. MacKay.

Mr. Peter MacKay: Can I ask a question arising out of that? With respect to your program where a person is found to have over .05, resulting in an immediate suspension, is that information later made available to a crown attorney? Is that something that is taken into consideration down the road? I know it wouldn't be admissible in court, but I'm just wondering about it for purposes of record.

Ms. Donna Connelly: The provinces vary. Some provinces keep track of that information. I think Newfoundland does. Ontario does not now keep track of that information.

The Chairman: Are there other questions?

• 1650

There being none, we'll adjourn the hearing and the witnesses, take maybe a five-minute break and then move on to Mr. Reynolds' motion.

Thank you very much for appearing. We very much appreciate the information you provided for us. It will certainly be very beneficial to our deliberations. Thank you very much.

• 1650

• 1657

The Chairman: I'd like to reconvene the meeting, please.

Mr. Reynolds, sir, you have a motion to present.

Mr. John Reynolds: I move, Mr. Chairman, that the Standing Committee on Justice and Human Rights, in view of the fact that the Justice Shaw decision in British Columbia has caused the dismissal of charges under subsection 163.1(4) of the Criminal Code—child pornography—against a second individual in British Columbia, and in view of the fact that some 38 charges are pending under the same section of the Criminal Code, which could also be in jeopardy due to the Shaw decision, this committee take immediate action to reinstate subsection 163.1(4) in its applicability in British Columbia, notwithstanding the pending B.C. Court of Appeal hearing on the Shaw decision.

Mr. Chairman, I bring this motion because of the one case I mentioned there, but also because of the fact that on Vancouver Island we now have cases in which judges have set trial dates but have said to the people that they will probably never come to trial because of the Shaw decision.

When we had the vote in the House, the minister made it very clear that in British Columbia there were still investigations, charges and court cases going ahead. The case that went ahead was dismissed, based on the Shaw decision.

She also mentioned that the attorney general in British Columbia could take the cases to direct indictment. My information is that a large number of these cases cannot go to direct indictment. The fact is, they're being delayed now for an appeal hearing at the end of April, and then, if that is in favour of the Shaw decision, they will be even longer in the Supreme Court, so that a number of these cases will be dismissed under other charter rights about the length of time it takes to get a court hearing.

That's why I've moved this motion today—so that we can get it before this committee and try to make sure that no more pedophiles are going to go free in British Columbia. As I said in the House in Question Period, one went free in one case.

The Chairman: Thanks, Mr. Reynolds.

Ms. Bakopanos, do you have a comment?

Ms. Eleni Bakopanos (Ahuntsic, Lib.): I'll wait. I think the opposition has more, but I would like to have that...

[Technical Difficulty—Editor]

The Chairman: Mr. MacKay, would you like to comment?

Mr. Peter MacKay: Yes, Mr. Chair. I would speak in favour of the motion, only insofar, perhaps, as having the minister appear. I don't see any connotation here of a move to revisit the entire issue of invoking the notwithstanding clause.

I don't concur with the comment that pedophiles are going free, because there isn't a direct correlation with possession of this material, but in any event, in light of the court cases that are pending, I think there obviously is a great deal of confusion—not only in the courts in British Columbia but in courts across the country—as to how this decision is being interpreted.

• 1700

I believe that having the minister appear would allow members of this committee and Canadians in general to look at this issue under perhaps more controlled... I guess greater detail is what needs to happen here. As time goes by, there is the danger that in some of these cases charges will either be dismissed or will not be laid. So I would speak in favour of the motion.

The Chairman: Ms. Bakopanos?

Ms. Eleni Bakopanos: I'll speak last.

The Chairman: Mr. DeVillers.

Mr. Paul DeVillers: Thank you, Mr. Chair.

I'm a little bit confused by the motion. I would have thought that it might be out of order given that the House has already, on an opposition day, I think, spoken on and voted on this subject.

The motion says, “that this committee take immediate action to reinstate subsection 163.1(4)”. I'd submit that it's not within the competence or the jurisdiction of this committee to do that.

I really can make no sense of the motion and therefore will speak against it.

The Chairman: I have just a comment on your comment on the issue of the ultra vires of the committee. I have considered that in advance of this hearing today, and I'm satisfied that the motion is proper.

Mr. McCormick.

Mr. Larry McCormick: Thank you, Mr. Chair.

Being fortunate enough—or unfortunate enough, and actually, I wish I had the degree and the studies of a lawyer behind me... I want to make a comment here. I normally sit on the HRD committee. I've been there for more than five years.

I'm now sitting on the agriculture committee. Our committee's going to Washington on Monday for four days. Members from all parties are going. It's most important because of the WTO.

Mr. Chair, I feel that we'll have some good results from our visit to Washington. At any time over these five years, I've never felt better about all parties working together.

But whether it's the right thing to say or not, I want to put on the record that following the vote of the House of Commons, I have a recommendation for some parties who are present at this table. I believe it was the lowest of the laws of decency what a particular party did with press releases and advertisements—and I'll even say that I've always respected opposition. Opposition, Mr. Chair, is the most important thing we have, but I ask some of the people around here to rethink some of their strategies if they want Canadians to support them.

Mr. Dick Harris: Mr. Chairman, I have a comment—

The Chairman: Mr. Harris.

Mr. Dick Harris: —in response to that. I would suggest that if members of the government are beginning to not appreciate the fallout from the manner in which they vote on issues, perhaps they should rethink their decisions on voting.

Mr. Larry McCormick: I'm happy to vote, and I'm happy to support Canadians—

The Chairman: Fine, Mr. McCormick. Thank you.

Mr. Harris, are you finished? Thank you.

Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Ref.): I don't want to get into this name-calling because I don't think it's appropriate for this place right now. We're dealing with a motion here—

Mr. Reg Alcock: Then stop it.

Mr. Chuck Cadman: Pardon me?

The Chairman: Come on, Mr. Alcock.

Mr. Chuck Cadman: Would you like to listen to what I have to say?

The Chairman: Yes.

Please listen, Mr. Alcock.

Mr. Chuck Cadman: I was probably the first one out of the gate on this particular issue, because I had phone calls in my office within an hour after this decision in B.C. I did contact the minister right away, asking her to step in, to just bring it to the attention of the committee, to do something about it and to try to plug the gap.

I'm speaking in support of this motion because I think something has to be done—

An hon. member: Is that on the record?

Mr. Chuck Cadman: —because of the mood in B.C. right now, which is spreading across Canada. I believe it behoves us to get this before this committee and at least discuss it and find out where we can go with it.

The Chairman: Mr. Harris and Mr. Alcock, you've had your opportunity to speak.

Mr. Brien.

[Translation]

Mr. Pierre Brien: I would like to point out that, like everyone else, we are not in favour of the possession of child pornography. However, as expressed during the debate in the House, the Bloc Québécois is not in a position to support this motion. There are obviously trial courts that are bound by the decision. There is nevertheless an appeal process and a presumption of constitutionality which mean that an Act is not validated as long as the appeal process has not been completed. In the end, if the courts have not overturned the judgment at trial, there will still be time to go back to it and see if the House can subsequently make its stand known. That is why members of the Bloc Québécois will not be supporting this motion.

[English]

The Chairman: Thank you. Mr. Saada.

• 1705

[Translation]

Mr. Pierre Brien: Mr. Chairman, I fully understand the decision to deem this motion receivable and I fully respect it. But with respect to the applicability of the outcome of this vote, how can a small minority of members of a larger group of MPs speak out against what the larger group of MPs decided just a few days ago? It is as if we were taking a small part of a whole and that small part could overturn a decision made by the whole group. It seems to me that the whole group that made this decision had much broader representation than the small part. So for those reasons and out of respect for the decision that was made by the House of Commons a few days ago, I will be voting against this motion.

[English]

The Chairman: Mr. Reynolds.

Mr. John Reynolds: Just to answer a couple of comments, especially Mr. McCormick's, I think he has to remember that all parties in the House voted for that motion, not just opposition parties. They may have lost it, but by a very small margin. There are people who have concerns about what's happening in this country, and that was one of the issues. I don't think it's a personal issue. I just don't think we should get into personalities or into fighting each other on a personal basis on these types of issues.

With regard to Mr. Saada's comment, I think his point is very well taken, and if the second case had not been dismissed since we had that vote, this motion would not be here. But we have a serious problem in British Columbia: another person who is involved with this type of material has walked free, and there are judges telling other people going to trial on those issues that they'll probably walk free. It's a concern. There's a big rally taking place soon—and by the way, it's not organized by us, it's totally independent of us.

Ms. Eleni Bakopanos: I'm sure—

Mr. John Reynolds: Well, Ms. Bakopanos, you can question our integrity, but all I can tell you to do is to talk to the people who are involved in it. They've brought some American speakers up here for this issue. It has nothing to do with us.

But there's a concern in our province about it and that's why this motion is here. We want to make sure it's stopped and we want to let those judges know that they should not dismiss any more cases. If the Attorney General of British Columbia would tell me he would stay all these cases until it was done or whatever, I could be satisfied with that. They can't do that because of the law and because of other charter rights law. The defence lawyers are saying they have a right to be there, so the cases get dismissed one after the other, and I don't think it's right. These people should not be going free.

The Chairman: Thank you, Mr. Reynolds.

Our final speaker is Ms. Bakopanos. After the final speaker, we'll call the question.

Go ahead.

Ms. Eleni Bakopanos: I'm not going to get into a spitting match in terms of Reform on this issue, but I'd like to reiterate what my colleague, Mr. Saada, said: this debate did take place in the House, and the minister's position was very clearly enunciated by her and by me as parliamentary secretary. I don't see any reason for her to come here and state the obvious again.

Mr. Brien made the point as far as the law is concerned. This is not a case of pedophilia, and I really would appreciate it if the opposition would use the proper terminology. This is a case of possession for personal use of child pornography, and it's a charter challenge. That's exactly the case. As far as charges pending is concerned, I want to put on record that the Attorney General of British Columbia has been in contact with the minister, and there are other types of charges—charges that are in fact on the books right now—that can be levied against the same person who was dismissed in the first case and in the other case, charges in terms of selling, distribution...there are all sorts of other charges that can be brought against somebody who possesses child pornography for the purposes of selling it, not for the purposes of personal use.

I think it's irresponsible when you talk about what you call pedophiles—who are not pedophiles according to this particular case—who are out there. You're fear-mongering, like you've done on many issues on justice.

I will say, then, that we should vote the motion down, Mr. Chairman.

The Chairman: Okay. I'll call the question, please.

Mr. John Reynolds: The parliamentary secretary can talk about fear-mongering, but the person who walked away free on this charge is a fact. You're talking about the original guy, about how he's going to be charged...yes, he has been, and he'll go to court on those charges. But on this charge of possession of child pornography he walked free, and there's been a second one since then.

I take great exception to being called a fear-mongerer. There are people in our province who have concerns on this issue. The Liberals were in opposition at one time too, as you know, and it's our job to bring these issues before us. I don't think we should be called fear-mongerers.

The Chairman: Thank you, Mr. Reynolds.

• 1710

(Motion negatived: nays 7; yeas 4)

The Chairman: Thank you, Mr. Clerk.

Is there any other business?

I would like to remind committee members of the demonstration of the Breathalyzer in my office at the conclusion of the meeting, right now. We'll just walk over there.

Thank you very much. The meeting is adjourned.