Senators across party lines, including Ottawa’s former police chief, are criticizing a proposal from the federal justice minister to lower the blood-alcohol threshold for criminal drunk-driving charges, joining criminal lawyers and industry lobby groups pushing back against the move.
Two members of the Senate Legal and Constitutional Affairs Committee and one former member questioned the need for the expanded criminal penalty, and warned it could place an additional burden on Canada’s swamped court system.
That Senate Committee had recommended the opposite approach to managing low blood-alcohol-concentration drunk-driving offences in a report released this summer. The Senators told The Hill Times that administrative penalties already in place in most provinces, which don’t involve the court system, were a better way to handle those cases.
“I’m a little frustrated,” said Senate Liberal Mobina Jaffer (British Columbia) in an interview.
“The courts are really clogged, and to do this when there are so many other issues…I don’t think it’s necessary,” she said.
A shortage of judges and slow process to appoint new ones, mandatory timelines for court proceedings, and a disproportionate amount of time taken up by bail hearings and other legal procedures are among the reasons Canada’s criminal court system is backlogged. Some serious criminal cases have been thrown out by judges when they didn’t proceed within a reasonable amount of time, violating the defendant’s constitutional right to a speedy trial.
Federal Justice Minister Jody Wilson-Raybould (Vancouver Granville, B.C.) sent a letter to her provincial counterparts and stakeholders in May, detailing a proposal to allow the laying of criminal charges against drivers caught with a blood-alcohol concentration of 50 milligrams of alcohol per 100 millilitres of blood instead of the current 80 milligrams.
“I believe that this approach would better respond to the danger posed by drinking drivers,” the letter from Ms. Wilson-Raybould said, noting that the advocacy group Mothers Against Drunk Driving had pushed for the change as a stronger deterrent to drunk driving.
“I get the importance of lowering the standard, but I don’t think our system can handle lowering the standard,” said Conservative Senator Vern White (Ontario), who served as Ottawa’s police chief before being appointed to the Upper Chamber.
Both Sen. White and Sen. Jaffer pointed to British Columbia’s system as an example to follow. That province levies administrative penalties—confiscating a driver’s licence and vehicle, for example—for drivers with blood-alcohol concentrations above 0.05, and most other provinces have similar penalties.
Administrative penalties are dealt with through a system separate from the backlogged criminal courts.
Bob Runciman, who retired from the Senate over the summer but chaired the committee as a Conservative while it authored the study, also told The Hill Times in an emailed statement he thought the lower criminal threshold suggested by Ms. Wilson-Raybould could burden the courts, and that other subjects studied by the committee—for example, finding alternatives to the practice of judges staying or stopping prosecutions for serious crimes because of unconstitutional delays in getting to trial—deserved the minister’s attention instead.
Several Independent Senators on the committee declined, were unavailable, or did not respond to requests to discuss the report and the justice minister’s proposal. The Legal Affairs Committee has not yet named a chair to replace Mr. Runciman, and the vice-chair, Senate Liberal George Baker (Newfoundland and Labrador), did not respond to requests for comment.
The committee singled out drinking and driving offences in part because they are among the most time-consuming to prosecute, said Sen. White. Defence lawyers can challenge the arresting officer’s grounds for pulling a driver over and for then demanding a breath test; the officer has a limited amount of time to get a suspect from the scene to a police station for a more reliable impairment test; and the defence can try to pick out other mistakes in the arrest procedure, he said.
Sen. Jaffer knows the vulnerabilities to a drunk-driving case well: before being appointed to the Senate, she was a criminal lawyer, and defended clients against drunk-driving charges, she said.
“It became for us defence lawyers an easy case to take on,” she said.
“Often I would be able to find a fault, because, you know, [the police] do so much work, they may not have completely followed [all the proper procedures]. What B.C. courts were finding: that many, many cases were…being thrown out.”
The Canadian Bar Association, which represents lawyers, law students, and professors, also protested Ms. Wilson-Raybould’s proposal in an Aug. 4 open letter to Justice Canada. The letter said that a blood-alcohol level of 0.05 does not necessarily mean a person is impaired, and that “impaired driving is one of the most extensively litigated areas of criminal law, and that volume alone has enormous implications for the system in terms of cost, delay, and uncertainty while cases are pending.”
Saskatchewan’s justice minister echoed these thoughts. Gordon Wyant, who represents the governing conservative Saskatchewan Party, was quoted by CKOM News on Aug. 9 as saying: “If we go to .05…we’re going to have an influx of impaired driving charges,” and that, he said, is “going to have a significant impact on our justice system.” He wouldn’t close the door on supporting the change, however, noting that his federal counterpart had suggested she was open to dialogue.
The government’s proposal has not yet been written into any legislation before Parliament, though the government is pushing ahead with several other reforms related to drugged driving and mandatory roadside testing for alcohol in Bill C-46, which it aims to pass alongside its legislation to legalize marijuana.
Ms. Wilson-Raybould isn’t backing down from her blood-alcohol concentration proposal either. Her office replied to some of the criticisms from the Senators in a written statement to The Hill Times, saying that drivers with a 0.05 blood-alcohol concentration were almost twice as likely to be involved in a fatal crash as those who were sober, and that lowering the criminal limit was a “better” response to that threat than administrative penalties, as it would send a “strong message” and change drivers’ behaviours.
The justice minister used some of the same arguments in her May letter to the provinces and stakeholders, but that letter had also included a background document with a section addressing possible complaints about overburdening the court system.
In that document, the government said the tougher law would deter people from breaking the law and driving while over the limit; that police could choose to use the administrative penalties regardless of the availability of the tougher criminal penalties; and that the limited time and resources available to police officers meant it was “unlikely” that they would “process” significantly more drunk-driving cases even if the law was changed.
The federal justice minister has said earlier research that suggested 0.08 was a proper blood-alcohol threshold underestimated the fatal car crash risk.
“Administrative penalties—Certain social issues that are currently being addressed through criminal proceedings could be dealt with more efficiently and just as effectively through the imposition of administrative penalties in lieu of court proceedings. For instance, lower levels of impaired driving are being addressed under provincial highway safety legislation, which requires less court resources than offences under the Criminal Code. The committee recommends that the minister of justice review the merits of designating offences for appropriate social issues to be dealt with as administrative penalties in order to reserve criminal law procedures for more serious crimes and thereby reduce the strain on limited court resources.”
—Source: Senate Legal and Constitutional Affairs Committee June 2017 report on court delays