Speaking Notes- Submission to the House of Commons Standing Committee on Public Safety and National Security

Re: Bill C-226: An Act to amend the Criminal Code (offences in relation to conveyances) and the Criminal Records Act and to make consequential amendments to other Acts [the “Impaired Driving Bill”]

September 28, 2016

British Columbia Civil Liberties Association

Micheal Vonn, Policy Director

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My name is Micheal Vonn and I’m the Policy Director of the British Columbia Civil Liberties Association.  We appreciate this opportunity to speak with you about Bill C-226.

On the subject of impaired driving, there are no ‘two sides’.  We are all on the same side.  Everyone advocates for road safety.  The only points of contention relate to the best way to achieve that end while maintaining the integrity of the justice system.   In our view, this bill misses the mark in some crucial areas.   I will be addressing three aspects of the bill: sentencing; procedural protections at trial and police searches.

Sentencing – Mandatory Minimums

This bill contains mandatory minimum sentences that should be re-considered.  The view that general or specific deterrence can be achieved through mandatory minimum sentences is deeply held but completely mistaken.  The evidence shows that mandatory minimum sentences do not deter any more than proportionate sentences reached through the exercise of broad judicial discretion.

This is true even where a mandatory minimum constitutes a greatly increased penalty.  As MADD notes in their Dec. 11, 2015 report:  “research during the last 35 years establishes that increasing penalties for impaired driving does not in itself have a significant specific or general deterrent impact.”

While failing to provide a benefit in deterrence, mandatory minimums create significant risk of harms.  These include excessively punitive and unfair sentences and shifting discretion from the public and reviewable process of the courts into the secret, non-reviewable purview of prosecutors.

As research conducted by the Canadian Sentencing Commission shows, plea bargaining increases in the context of mandatory minimums, and this “informal criminal justice system” serves no one’s interests as it can undermine proportionality, equity and certainty in sentencing, leverage guilty pleas, regardless of culpability, and insulate the process of criminal justice from transparency, accountability and constitutional safeguards and review.

I have provided to the Clerk the link to our Association’s comprehensive report on mandatory minimum sentencing for your consideration: https://bccla.org/wp-content/uploads/2014/09/Mandatory-Minimum-Sentencing.pdf

Procedural Protections – Statutory Presumptions and Evidentiary Matters

There is a very dangerous assumption that appears to be operating with respect to this bill and that is, that if we reduce the procedural protections for people accused of impaired driving, we will make our roads safer.  This is wrong.  We do not increase public safety by putting accused persons at risk of injustice.

This bill would significantly reduce procedural protections in the trial process for those charged with impaired driving through a variety of means ranging from limiting disclosures to the defence to imposing evidentiary presumptions favourable to the prosecution.  None of the provisions that seek to diminish the rights of the accused in the trial process can be justified.  We adopt the submission of the CCLA with respect to the insufficiency of the evidence on the efficacy of drug testing and drug recognition testing.  Procedural protections guard against wrongful conviction.  To reduce these protections is always dangerous.  To do so in a setting where critical evidence is likely to be of highly questionable reliability, should not even be considered.

And just quickly, I’d like to draw to your attention the evidence that runs counter to the prominent view in some spheres that appropriate prosecutions of impaired driving are regularly derailed.

The StatsCan Report, Impaired Driving in Canada, 2011, comments that “Compared to most offences, impaired driving cases are more likely to result in a guilty outcome.”

In 2010/11, StatsCan reports 84% of impaired driving cases resulted in a guilty finding, and that this proportion has maintained stability over the past 10 years.  There is some regional variation in the proportion of impaired driving cases that result in a guilty outcome, ranging from 81% in Ontario and Alberta to 93% in PEI.

This is a much higher proportion of guilty findings than for completed cases in general – which is 64%.

The evidence from StatsCan is that for over a decade impaired driving cases produce a much higher percentage of guilty findings than for criminal cases in general.  It is unclear to me how MADD’s Dec. 11, 2015 paper came to state figures and conclusions on this subject that appear to be so at odds with the data from StatsCan.

Police Searches – Breathalyzers

Arguably the heart of the bill is to provide for Randomized  Breathalyzer Testing (RBT).  It was only yesterday that we were able to access a copy of Peter Hogg’s opinion on the constitutionality of RBTs.  Having now reviewed that, we must concur with the opinion of our colleagues at the CCLA with respect to the weight of the evidence that was relied on regarding the effectiveness of RBT.

We have not been able to review this evidence sufficiently in order to take a definitive position, but it is at least clear that the evidence is highly contested.

Careful attention to methodology is always needed in reviewing studies and a selective review of studies is always problematic.  This is the reason that systemic reviews are so compelling – because they attempt to correct for methodological shortcomings and selection bias. Thus, the Committee should give very serious weight to the systemic study of the Traffic Injury Research Foundation cited in the CCLA’s submission. That systemic review found no evidence that RBT substantially enhances road safety over our current regime.

Evidence on this subject is, of course, central to the question of constitutionality.  Were such evidence to be produced, and RBT justified, its potential discriminatory impact would still have to be squarely addressed.

There is considerable evidence in Canada of discriminatory policing, particularly based on race.  Even though critical data for assessment is often not collected, we are at a juncture where the need to address and prevent police targeting of racialized communities is both urgent and long past-due.

Advocates of RBT point out that it is used most often in the context of sobriety checkpoints and that such programs constitute genuinely random and non-discriminatory selection.  However, proponents of RBT insist that individual officers also be given the discretion to demand testing of drivers outside the context of checkpoints, arguing that in remote and rural areas, for example, resources do not extend to having regular checkpoints.  Given that these would be tests expressly administered on the basis of no criteria for suspicion, such unfettered officer discretion facilitates discriminatory selection of drivers.

We suggest that RBT, were there clear evidence of it justification, be limited to the checkpoint situations that proponents concede constitute by far the vast majority of the current uses of such programs in other jurisdictions.  This would extract the maximum benefit of such a program while still ensuring that RBT’s use would not be compounding the discriminatory profiling of racialized communities and would further, facilitate a basis for assessment and review of the program in order to determine whether any changes are needed or justified.