Speech on Bill C-46: Impaired Driving Legislation

June 1, 2017

Madam Speaker, I am pleased to participate in this debate on Bill C-46, legislation that would have a significant positive impact on public safety. We are having a great discussion in the House on this today and I am glad to be a part of it.

In the time that I have available, I want to focus my remarks on the proposed new part of the Criminal Code, part VIII.1, Offences Relating to Conveyances. It would replace all the existing transportation offence provisions in the Criminal Code with a simplified and modernized part that I believe will be better understood by all Canadians. Before discussing these changes, I believe it is necessary to understand how the current Criminal Code provisions dealing with transportation offences have developed and why there is a desperate need for modernization.

Driving while intoxicated by alcohol has been an offence since 1921, and driving while under the influence of narcotics became an offence in 1925. There have been countless amendments since then which include creating the offence of being impaired by alcohol or a drug in 1951, creating the over 80 offence in 1969, authorizing demands for roadside screening breath tests in 1976, enacting the offences of impaired driving causing death and causing bodily harm in 1985, and in 2008, limiting the so-called two beer offence and strengthening responses to drug-impaired driving.

Unfortunately, these various piecemeal reforms have not always worked well together or kept up with improvements in technology. In particular, the provisions with respect to proving blood alcohol concentration reflect the technology that existed 50 years ago and not the modern electronic Breathalyzers.

The current provisions are also very hard to understand, even for practitioners. This has long been the case. Indeed, the Law Reform Commission in its 1991 report Recodifying Criminal Procedure wrote that some of the impaired driving provisions had become virtually unreadable. The current Criminal Code provisions are a minefield of technicalities that make the detection and prosecution of impaired driving cases, particularly with respect to proving blood alcohol concentration provision, unnecessarily complex.

In the typical trial, the fundamental facts that prove guilt are not in dispute. The person was driving and the person blew over 80, yet impaired and over 80 trials are clogging the courts and are taking too long to conclude, in part because our laws are unnecessarily complex. It is time to clean up the provisions and focus trials on the relevant issues.

Under the new part of the Criminal Code, all of the offences are set out in sections that are easier to read and understand. For example, the provisions would set out the simpliciter offence first, then the offence involving bodily harm, and finally the offence causing death. Under the new part, a person would not, for example, be charged with dangerous driving causing death while fleeing the police as the current law. Instead, they could be charged with dangerous driving causing death and with fleeing the police, which are two distinct offences.

The penalties and prohibitions are also grouped so that consequences of the offences are clearly rationalized. There are mandatory minimum penalties and mandatory prohibitions for impaired driving and the refusal offences, but there are no mandatory minimum penalties or prohibitions for the other offences. It gets complicated.

The mandatory minimum penalty regime for impaired driving and refusal offences makes sense from a policy perspective.

First, unlike many other offences that can be committed in a number of different ways and capture a broad range of offenders, impaired driving offences always require voluntary consumption of alcohol or an impairing drug and then making the deliberate decision to get behind the wheel, which puts all users on the road at risk.

The minimum penalties are also well-tailored, starting with a fine only for a first offence but certain jail time for those who reoffend. This type of certainty provides a clear deterrent effect.

Some offences would not be re-enacted under the new part. Failure to keep watch on a person being towed or towing a water skier at night are summary conviction offences that are rarely charged. Removing them will leave no gaps in the law. If the activity is carried out in a dangerous manner, or results in bodily harm or death, the person could be charged with dangerous operation or criminal negligence in the appropriate cases.

Also, sailing with an unsafe vessel or flying an unsafe aircraft are summary conviction offences that are not being re-enacted. Laying a charge for these offences requires the approval of the Attorney General of Canada. This activity is more regulatory in nature, and there are strict laws governing the safety of vessels and aircraft.

The provisions under the investigatory powers of the new part would provide new tools for the police. In particular, mandatory alcohol screening is expected to result in deterring more drinking drivers, and deterring those tempted to do so. Roadside oral fluid drug screening will detect drivers who have consumed cannabis, cocaine or methamphetamines, the impairing drugs that are most prevalent on Canadian roads that have been discussed earlier.

Under “Evidentiary Matters”, the new part addresses directly the most important causes of delay and litigation under the current provisions dealing with proving blood alcohol concentration. These are welcome changes given the significant challenges many jurisdictions are facing in terms of court backlogs. Bill C-46 sets out what has to be done to ensure that a breath test produces accurate results and provides a simple formula for determining blood alcohol concentration where the first test occurs more than two hours after the person has driven.

The new part also sets out what documents are to be disclosed as relevant to determining whether the approved instrument was working properly when the driver's breath was analyzed.

There are also improvements with respect to certificates. An accused who wants to cross-examine the qualified technician or an analyst who filed a certificate will have to explain why their attendance is necessary. This ensures there will be no fishing expeditions.

All of these provisions reflect the advice of the alcohol test committee, an independent committee which has been advising the Government of Canada on breath testing for alcohol for 50 years, and whose expertise has repeatedly been recognized by the courts, including the Supreme Court of Canada.

There are many other changes in the wording of the provisions, and it would be tedious to list them all, but suffice it to say we need to clean up this legislation.

I am pleased to recommend to members that Bill C-46 be given second reading and be referred to the Standing Committee on Justice and Human Rights, where it can do its great work.