JURI Committee Report
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CHAPTER 7: SYSTEMIC REFORM AND OTHER MATTERS
In addition to recommendations affecting impaired driving offences, the Committee heard a number of proposals to change the way in which those offences are prosecuted. Two of these suggestions are discussed below.
Recommendations were also made concerning matters not directly related to the Criminal Code and that may not be entirely within federal jurisdiction. However, because they bear on the efficacy of present programs, as well as future initiatives, suggestions concerning research, public education and intergovernmental cooperation are canvassed in the latter part of this chapter.
The Canadian Police Association (CPA) and Mothers Against Drunk Driving recommended amendments to the Criminal Code to bring section 253 offences (impaired driving and `over 80') and subsection 254(5) (refusal to provide a sample) all under the absolute jurisdiction of a provincial court judge. The CPA took the view that such a step would "eliminate unnecessary preliminary hearings and get cases through the system faster without compromising anyone's right to a fair trial."1 Saskatchewan Government Insurance and the Insurance Corporation of British Columbia (ICBC) both supported the elimination of preliminary inquiries, but ICBC thought that an accused should still have the right to choose a trial by judge or jury.
On the other hand, the Ontario and Manitoba governments like the existing flexibility that comes with the Crown Attorney's right to elect to proceed summarily or by way of indictment. The Canadian Bar Association and the Barreau du Québec also said that an amendment was not required since the majority of such cases are already tried in provincial court.
Since the Criminal Code now provides flexibility for both parties and the evidence suggests that the vast majority of cases are already tried in provincial court, the Committee sees no need to bring impaired driving offences within the absolute jurisdiction of a provincial court judge.
Sharleen Verhulst told the Committee that defense counsel should be required to inform the Crown, in advance of trial, of any clerical errors upon which the accused intends to rely. She gave the example of minor errors in documents, such as the certificate of analysis, which could result in an acquittal.
When breath or blood tests are taken and analyzed in a manner that complies with the requirements of section 258 of the Criminal Code, the results are then admissible as evidence of the blood alcohol concentration of the accused at the time of the alleged offence. Because the use of certificate evidence enables the Crown to prove the most important element of the per se offence (`over 80'), it is not surprising that courts demand a high degree of precision and accuracy in these documents. In situations of clerical error, determination of the admissibility of such evidence is properly within the discretion of the court, taking into account statutory and common law rules of evidence. Given that such decisions are necessarily made on a case-by-case basis, the Committee is not persuaded that a requirement for advance notice to Crown attorneys would be helpful or necessary.
PUBLIC AWARENESS AND EDUCATION
The Traffic Injury Research Foundation (TIRF) argued that, in order to enhance the potential deterrent effect of the existing law as well as any changes made to it "efforts are needed to increase the level of knowledge about the law and the serious consequences of a conviction for impaired driving."2 In support of that argument, TIRF cited a 1992 opinion poll showing that "only half of Canadians thought that first-time offenders would receive a license suspension," even though 1985 Criminal Code amendments had introduced a mandatory minimum three-month driving prohibition. Likewise, fewer than half of Canadians knew that a fine is mandatory for a first offence. Furthermore, TIRF noted that very few Canadians "are aware of the existence of lower BAC limits within the provincial Highway Traffic Acts."3
The Committee believes penalties can hardly be expected to have a deterrent effect when Canadians are generally unaware of them. For that reason, the Committee urges an enhancement of efforts by all levels of government to educate and inform the public of the specific measures taken by them to address impaired driving.
RECOMMENDATION 14
The Committee recommends that the federal, provincial and territorial governments enhance their efforts to educate and inform Canadians of all measures taken to address impaired driving.
ENHANCED FEDERAL-PROVINCIAL-TERRITORIAL COOPERATION
Chapter 1 of this report addressed the complications that arise out of the fact that Parliament shares, with the provinces and territories, legislative jurisdiction over matters related to impaired driving. Both the Canadian Police Association and the Canadian Resource Centre for Victims of Crime urged federal and provincial governments to work together to develop a national strategy to combat impaired driving.
The Committee believes that it is incumbent upon Parliament, the Government of Canada, and the provincial and territorial governments and legislatures to coordinate their efforts, so as to achieve the desired results. Resources have already been committed to that purpose. For example, the Canadian Council of Motor Transport Administrators (CCMTA) is composed of representatives from the federal, provincial and territorial governments. With a mandate to reduce the percentage of traffic fatalities involving impaired drivers, the CCMTA has established the Strategy to Reduce Impaired Driving (STRID), as a joint initiative by federal, provincial and territorial governments, and others, to develop "a common infrastructure and approaches to address the problem of impaired driving."4 Based on the experience of various jurisdictions, the CCMTA reviews and reports on legislative and administrative initiatives and recommends impaired driving countermeasures.
The Committee commends the efforts of the CCMTA and urges all levels of government to continue to coordinate efforts in this way. However, the Committee notes that representatives from the Ontario Ministry of Transportation addressed the impact of impaired driving cases on court resources, and identified a need for further scrutiny of the relevant provisions of the Criminal Code to determine where "streamlining" could take place.5 To that end, they suggested that a federal, provincial, territorial working committee of justice experts be convened to take responsibility for doing that. The Committee believes that the enforcement and prosecution of impaired driving offences are sufficiently important and complex matters as to merit consideration by such a group. Furthermore, we are persuaded that a high level of cooperation between levels of government will continue to be required if further strides are to be made in the campaign against impaired driving.
RECOMMENDATION 15
The Committee recommends that a federal, provincial, territorial working group of justice experts be convened to consider the enforcement and prosecution aspects of impaired driving, and to determine whether Criminal Code amendments, additional to those contained in the report, are necessary or advisable.
Throughout its review, the Committee was repeatedly reminded of the importance of empirical evidence about impaired driving and the measured effects of any administrative or legislative steps taken to address it. For example, Mothers Against Drunk Driving recommended that comprehensive studies be conducted to assess the efficacy of the law "in reducing drinking and driving, and the deaths, injuries and social costs that it generates."6 Invaluable research of that nature is now done by organizations like the Traffic Injury Research Foundation and the Addiction Research Foundation, to name only two, often with financial support from departments and agencies of various levels of government. However, the Committee believes that the federal government has a responsibility to continue to assist in efforts to identify effective impaired driving countermeasures, through the allocation of additional resources as required. Furthermore, it appears that there is a need for additional data collection at the national level which will require the active cooperation of provincial and territorial ministers responsible for the administration of the courts. For example, during the course of this review, the Committee noted a lack of accessible, comprehensive statistical data on the sentencing of impaired drivers. Information of that nature could be especially useful in carrying out the Parliamentary Review proposed in the seventeenth and final recommendation of this report.
RECOMMENDATION 16
The Committee recommends that the Minister of Justice review the overall availability of information relating to impaired driving in Canada and dedicate additional resources to more comprehensive research and policy development, in cooperation with the provinces and territories.
The last major revision of the Criminal Code impaired driving provisions took place in 1985. Although there have been several minor amendments in the interim, the Committee notes that Parliament has not undertaken a comprehensive review of the legislation since that time. Given the enormity of the impact of impaired driving on Canadian society and the pace of legislative reform in other jurisdictions, the Committee believes that systematic and timely reviews of the legislation are necessary. Such reviews allow Parliament to evaluate the impact of earlier initiatives while weighing the possible benefits of new proposals.
RECOMMENDATION 17
The Committee recommends that five years after the tabling of this report, the House of Commons review the operation of the impaired driving provisions of the Criminal Code.
1 Brief to the Committee, p. 10. The CPA acknowledged that this would necessitate a reduction in the maximum penalty to five years less a day, in order to comply with section 11(f) of the Charter.
2 Brief to the Committee, p. 5.
3 Ibid.
4 Brief to the Committee, p. 2.
5 Donna Connelly Miller, Ontario Ministry of Transportation, Minutes of the Committee, 17 February 1999, 1600.
6 Brief to the Committee, p. 20.