JUST Committee Report

Standing Committee on Justice and Human Rights

Supplementary Opinion Concerning Impaired Driving

Issued 11 June 2009 on Behalf of Mr. Comartin, M.P. (Windsor-Tecumseh) NDP Justice Critic

INTRODUCTION

The Standing Committee on Justice and Human Rights, in accordance with its mandate to oversee all matters of criminal justice which appear before the House of Commons, has been engaged since February 2008 in an intensive study of issues related to the criminal, social, and human impact of impaired driving in Canada.

Between 7 February 2009 and 2 March 2009, the Justice Committee consulted a broad series of witnesses spanning law enforcement, the Federal Public Service, academia, industry, and victims` advocacy organizations. This diverse series of testimonials brought real insight to the Committee’s proceedings, and presented Members and the public with a largely balanced, objective view of the historical and contemporary parameters of impaired driving in Canada.

A strong multi-partisan consensus that impaired driving remains a major concern was discernible throughout the Committee`s work. All Members expressed their conviction that strong legislative and regulatory measures were required to address the persistent scourge of impaired driving, whose grim reality was evidenced by the intimate and often heart-wrenching personal tragedies described so compellingly by several witnesses.

The tone of the Committee`s work was with few exceptions admirably collegial, and Members from all parties overwhelmingly treated the proceedings with the professionalism they merit.

The majority report ultimately produced by the Committee`s investigation contains a number of important recommendations which rightly enjoy the support of all parties, and strike a balance between the competing priorities called for by stakeholders. This minority report is issued in order to address those few shortcomings which might be rectified to ensure that the Committee’s final recommendations on this critical public policy issue serve Canadians in the best way possible.

THE CONTEMPORARY CONTEXT OF IMPAIRED DRIVING IN CANADA

The late 1990s witnessed a considerable decline in the prevalence of impaired driving in Canada, and a concurrent drop in the number of associated charges, convictions, and fatalities.[1] While determining the precise cause of this decline is to some extent a politically subjective exercise, it is generally agreed that toughened enforcement by Provincial and Territorial authorities coupled with limited, periodic intensification of Criminal Code sanctions over this period represent major contributing factors. In addition the national public education campaign against impaired driving led by groups such as MADD and our police services contributes positively to a change of driving habits while under the influence of alcohol.

Significant evidence exists, however, suggesting authorities at both levels of Government have more recently allowed justifiable pride at this achievement to degenerate into complacency. Excluding a minor decline in 2003/04, fatalities resulting from impaired driving incidents have steadily increased in this decade. It is of note that this resurgence of fatalities has occurred at exactly the time several Provincial/Territorial Governments significantly intensified penalties for impaired driving violations and new Criminal Code provisions have created entire new classes of offenses, explicitly targeted recidivist drunk driving, and eliminated technical loopholes whose effect was to unduly insulate offenders from timely conviction.[2] While definitive statistics are not yet available for 2007 or 2008, it is apparent the increase has continued unabated.

Consultations with numerous organizations representing Canada’s law enforcement personnel and the broader legal community reveal that the number one flaw in our national framework for addressing impaired driving has always been and remains material. Under increasing budgetary pressure, Federal and Provincial Governments have too often adopted the counterproductive practice of toughening penalties while underfunding the police, prosecutors, and judges required to translate tough penalties into convictions.

Where a monitoring-intensive area of law enforcement practice like impaired driving is concerned, even the toughest sentencing imaginable will be of little effect if police are too scarce and their coverage too diluted to adequately enforce law, or the Crown and court system are inundated with an unmanageable case load, as is demonstrably the case in several Provincial jurisdictions today.

THE BENEFITS OF A NATIONAL .05 BLOOD ALCOHOL CONCENTRATION (BAC) STANDARD

Canada’s national impaired driving standard is outlined by Section 253 of the Criminal Code, which sets 0.08 BAC as the maximum criminal limit of intoxication when operating a motor vehicle. Provinces enjoy wide autonomy in establishing stronger restrictions on impaired driving, but the 0.08 benchmark represents the statutory national standard.

At the Provincial level, impaired driving laws are defined by a loose and ineffective patchwork system. The differing approaches of Provinces are reflected both in terms of different license suspension policies, which range widely from relatively menial 24-hour suspensions for any BAC up to the 0.08 legal limit under Alberta’s Traffic Safety Act to a comparatively strict 3 day suspension for 0.05 BAC under Ontario’s Highway Traffic Act, and even more divergent practices where the interplay between Provincial regulations and the Criminal Code are concerned. [3] In recent years a number of Provinces have taken inconsistent steps towards stricter penalties for repeat offenders, who are statistically more likely to exceed BAC limits by large margins and be involved in dangerous incidents. Certain Provinces and regions, notably Québec and rural Canada, are documented as having drastically lower levels of enforcement and arrest-conviction ratios in impaired driving cases.

While Canada’s Constitutional framework is sufficiently unique that direct comparisons with the Federal systems of other nations are problematic. The persistent severity of Canada’s impaired driving challenge compels us to send the strong and unequivocal message of national scope, one that cannot be attained by a mere Provincial patchwork response. Only a tightened national standard can compel recalcitrant Provincial authorities to act.

As numerous witnesses suggested, under current Criminal Code provisions Canada effectively permits among the highest BAC levels in the world. This problem is particularly acute when one considers the fact that our courts have routinely accorded defendants generous margin-of-error mitigations in assessing impaired driving cases. This means that the technical 0.08 BAC requirement is usually a de facto 0.1 limit when it comes to prosecution and conviction.

Countless reputable organizations have shown that jurisdictions around the world which implement a 0.05 BAC benchmark for summary offence consistently enjoy notable reductions in both arrests and fatalities associated with impaired driving. The 0.05 BAC has been successfully implemented in virtually every OECD country, including the most advanced EU economies, without either subjecting the judicial system to unmanageable strain or being declared constitutionally invalid. Almost without exception, there has been a direct correlation between the permissiveness of BAC laws and the prevalence of criminal impaired driving incidents. [4]

Medical science in Canada and abroad has definitively determined that 0.05 BAC represents the threshold at which the ability of a human being to operate a motor vehicle, subject to the normal variations based on body mass, gender, dietary, and hydration factors, becomes sufficiently impaired to present an imminent danger to themself and others.[5]

RESPONDING TO CRITICISMS OF 0.05 BAC

Logistical Pressure on the Judicial System

The Majority opinion argues that changing the Criminal Code in order to lower the BAC limit will result in a huge influx of criminal prosecutions, putting additional strain on an already overburdened system. [6] While the present volume of impaired driving cases may be overwhelming, changes made to the Criminal Code, specifically the ``Evidence to the Contrary`` section will help mitigate this concern.

Currently 40% of defendants charged with impaired driving plead not guilty.[7] Defendants choose to proceed to trial for various reasons, high among them has been the availability of ``Evidence to the Contrary`` section in the Criminal Code, commonly known as the Two-Beer Defence. Under this defence, the accused had the ability to challenge the presumption of a BAC test with over the limit results by presenting evidence to the contrary, showing that in fact, the accused was not over the limit. Clearly, the more defendants who plead not-guilty and proceed to trial has a direct impact on the utilization of resources and the amount of case- and workload being put into the system. As of July 2008, this defence is no longer available, having been rescinded by way of amendments to the Criminal Code.

Although statistics for 2007 and 2008 are currently unavailable, the elimination of the Two-Beer Defence is almost certain to cause a significant drop in the number of non-guilty pleas for impaired driving charges. It follows that resources will be freed up thereby relieving the system of the common congestion seen before the Criminal Code was amended to eliminate the Two-Beer Defence. As a result, lowering the BAC level will not cause further congestion, in large part due to the elimination of a defence commonly exploited by the impaired driving accused.

Effective Standard

Section 253(1)(b) of the Criminal Code clearly states that a person who registers a 0.08 BAC while driving is operating while impaired. While the federal limit is clearly 0.08 BAC, the fact is that prosecutions are not made against impaired drivers when the BAC registers lower than 0.1. Therefore, although the legal limit is 0.08 the reality is that there is an effective limit in place in Canada, .02 points higher than the current legal limit.

The effective limit has come into place through a general belief in human and machine error. That is, there is a margin of error when testing the BAC of a suspected impaired driver, and rather than prosecute a defendant who can show evidence of error, it is more efficient and prudent to prosecute the impaired driver who registered at a 0.1 BAC because the margin of error would still place them within the legally unacceptable BAC limit. The use of this type of effective limit is clearly dangerous, since a severe degradation of skills used in driving occurs at 0.05 BAC, half the amount of the effective limit.

If Canada is to enjoy a transparent and authentic justice system, courts must accurately reflect the Criminal Code and current legislation. The utilization of a practice implementing an effective limit does not do this, rather it erodes public trust in the criminal justice system, and empowers those who seek to defy the laws of Canada and operate a motor vehicle while intoxicated.

If Parliament is satisfied that 0.08 BAC limit should remain the law within Canada, the most prudent course of action is to lower the legal limit to 0.05 BAC in order for the effective limit to meet the 0.08 BAC level. Effectively, the legal limit would be lowered, however with the continued utilization of the effective limit based on the margin of error prosecutions would not be made for less than 0.08 or 0.07.

RECOMMENDATIONS

The Committee minority therefore recommends:

Recommendation 1:

Contrary to the primary recommendation of the Majority Report, Canada should amend the Criminal Code to adopt a national standard of 0.05 BAC.

Recommendation 2:

The Federal Government should honour all previous commitments to support Provincial administration of justice and law enforcement, and undertake whatever financial or organizational support is necessary to enable the rapid, cost-effective implementation of Recommendation 1.