APPENDIX C
Issues Paper

PURPOSE

The House of Commons Standing Committee on Justice and Human Rights is conducting a detailed study of the impaired driving provisions of the Criminal Code, in response to the following Order of Reference from the House of Commons on 30 October 1997.

That, pursuant to Standing Order 68(4)(a), the Standing Committee on Justice and Human Rights be instructed to prepare and bring in a bill to amend those sections of the Criminal Code which deal with impaired driving in order to (a) enhance deterrence; and (b) ensure that the penalties reflect the seriousness of the offence.

To assist in its study, the Committee is seeking input from non-government organizations, members of the public and provincial and territorial officials on the nature and extent of the problem of impaired driving, as well as suggested strategies for further reducing its incidence in Canada. This Issues Paper is intended to be a point of departure for those who participate in this consultation.

BACKGROUND

Concern about the incidence of impaired driving in Canada and the resulting injuries and loss of life led to a full day of debate in the House of Commons in October 1997. At the conclusion of that debate, the Standing Committee on Justice and Human Rights was instructed to prepare and bring in a bill to amend those sections of the Criminal Code that deal with impaired driving. On October 22, 1998, the Committee presented its Thirteenth Report to the House, in which it committed itself to a detailed study of the legislation in order to make recommendations, in the form of a Report to the House, on amendments to the impaired driving provisions of the Criminal Code. This consultation is part of that undertaking.

In the exercise of its jurisdiction over criminal law in Canada, Parliament has enacted a legislative scheme within the Criminal Code that prohibits and punishes impaired driving and sets out special procedures for obtaining the evidence necessary for prosecution. For their part, the provinces and territories use their authority to regulate driver licensing and highways to supplement those federal sanctions. The provinces and territories are also responsible for implementing many provisions of the Criminal Code, as part of their administration of justice jurisdiction. Consequently, the Committee asks participants in this consultation to keep in mind the jurisdictional division of powers between the two orders of government, as well as the fact that amendments to the Criminal Code may place additional burdens on provincially and territorially supported law enforcement agencies and the courts.

The Criminal Code prohibits driving while one's ability to operate a vehicle is impaired by alcohol or drugs. It is also an offence to drive with a blood alcohol level (BAC) in excess of .08 (80mg alcohol in 100 ml of blood). Upon conviction, the penalties generally include a period of license suspension as well as the possibility of a fine or jail term, with escalating penalties for repeat offenders. In addition, impaired driving causing bodily harm or death carries a significantly greater penalty. In order to enable law enforcement agencies to gather evidence of impaired driving, the Criminal Code gives police the power to demand a breath or blood sample where they have reasonable grounds to believe that a driver is impaired. To encourage compliance, failure or refusal to provide a sample is an offence carrying the same penalty as driving with a BAC over the legal limit. Since breath analysis became part of Canada's criminal law almost thirty years ago, there have been a number of refinements to the impaired driving provisions of the Criminal Code. For example, police can now demand breath tests from a suspected impaired driver, with a roadside screening device. They can also seek a telewarrant authorizing them to take blood samples from those drivers who are unable to consent to the procedure because of their physical or mental condition.

Most of the provinces and territories have instituted administrative penalties or controls that allow immediate action to be taken against suspected impaired drivers. For example, several have implemented automatic license suspensions that take effect following failure or refusal of a breath test, independent of any Criminal Code conviction. In addition, some jurisdictions have implemented temporary preventive suspensions for drivers with an elevated BAC that is below the legally impaired threshold. More recently, some have enacted zero BAC limits for young or novice drivers, as part of their graduated driver licensing schemes. As an added enforcement tool, some jurisdictions now allow for the seizure and impoundment of vehicles operated by a prohibited or unlicensed driver. While provincial and territorial legislation aimed at combating impaired driving is not uniform, there does appear to be a trend toward swifter, more certain administrative action as a means of reinforcing the penalties available under the Criminal Code.

ISSUES FOR CONSIDERATION

The following questions set out the issues about which the Committee would like to hear your views. This list is not intended to be exhaustive and participants are encouraged to make their opinions known on other issues they consider relevant to the problem of impaired driving.

• Do current Criminal Code penalties adequately reflect the seriousness of the various offences, especially in the case of repeat offenders and/or those impaired drivers who cause injury or death? Do current penalties provide sufficient deterrence? Is there an argument for a lifetime license suspension and, if so, in what circumstances should it apply?
• Should the Criminal Code mandate assessment for all impaired drivers in order to identify so-called "hard core" drinking drivers? Should hard core drinking drivers be required to undergo treatment, in addition to the normal penalties?
• Should the legal BAC (blood alcohol content) limit be lowered from .08? Do you see any merit in graduated penalties that depend upon the driver's level of impairment or BAC?
• Should police have greater powers to demand breath, blood or saliva samples for alcohol and/or drug testing? Does the Criminal Code allow police sufficient time to collect breath or blood samples? Should drivers involved in serious accidents be automatically subject to drug and alcohol testing?
• Should impaired driving offences be brought under the absolute jurisdiction of a provincial or territorial court judge, in order to eliminate an accused person's right to elect a preliminary inquiry and/or trial by jury?
• The Criminal Code currently allows the courts to discharge an impaired driver who is in need of "curative treatment," by placing that person on probation with a condition that he or she attends such treatment. Is this appropriate? Are there other sentencing options that should be made available to the courts?