Legalisation: random breath-testing is not random

On Friday, October 20th, 2017 in Debate, Parliament

Elizabeth May
Monsieur le Président, c’est un honneur aujourd’hui de prendre la parole au sujet de mes amendements au projet de loi C-46, Loi modifiant le Code criminel et apportant des modifications corrélatives à d’autres lois.

That is a very benign title. It does not tell us what we are debating. We are debating a bill that would deal with, I think all of us in the House can agree, the critical issue of doing whatever we can to reduce the loss of life and accidents that are so damaging to society, which are caused by people who drink and drive, or drive under the influence of other intoxicants. The bill deals with substance abuse and getting behind the wheel of a car.

We all know the statistics, but they are absolutely devastating to imagine as Mothers Against Drunk Driving, a group I support points out. Mothers Against Drunk Driving’s estimate is, every day in Canada, on average, four people are killed in automobile crashes. If we had the kind of attention to immediate review of auto crashes and people killed in auto crashes that we do for people travelling on public transit, such as an airplane, we would be made aware on a daily basis that our publicly accepted system of transport is lethal.

Our society is built around the car. Our transportation networks are built around the car. We do not seem to mind the idea that our everyday method of getting from A to B involves a significant risk of death. We take it as something that is just one of those risks we live with. A car is very powerful, and potentially a killing machine.

In 2012, the totals were 2,546 Canadians who died in automobile crashes, but now to the point of today’s bill, 58.8% of those crashes involved a driver who had had at least some measurable intoxicant in their system.

In 2015, and this is beyond those accidents that involve fatalities, a total of over 72,000 impaired driving incidents happened across Canada. What is interesting is the statistics reflect that this is a significant improvement with 65% fewer incidents than in 1986. Therefore, the measures we are taking make a difference, with the awareness that drinking and driving is not acceptable.

Blood alcohol levels and roadside screening make a difference. There is no question that we want to support measures that would ensure that Canadians who have had any measurable intoxicants do not get behind the wheel of a car, that their friends stop them, the guy at the bar stops them, and their own concern that they would be hit with serious penalties and jail time will stop them.

Now, to the bill and the reasons I have submitted the amendments. I support Bill C-46. Unlike some of the experts I will mention, even unamended, I will vote for Bill C-46, but here at report stage I want to raise the concerns again. There are significant concerns from the Criminal Lawyers’ Association as well as from the civil liberties associations, that the bill would go too far and would end up being challenged in the court. That is because it involves, without the proper constraints, random breath testing as opposed to selective breath testing.

I have gone through the evidence very carefully. It is clear there are a lot of statistics that say when this jurisdiction or that jurisdiction brought in random breath testing, drunk driving incidents went down. The people who study this say they do not have good numbers that compare the results between selective breath testing and random breath testing in order to conclude that we could not have gotten the same result with selective breath testing.

What is the difference? If we have selective breath testing, we set up a roadside check, stop every driver, look at every driver at a stationary vehicle test.

Mark Warawa – Member for Langley-Aldergrove

Mr. Speaker, I was honoured to sit on the justice committee on Bill C-46. However, I was actually quite shocked at the position of members across the way from the Liberal Party that they believed the current mandatory minimum sentencing of $1,000 for driving impaired and killing somebody was quite satisfactory. Unfortunately, the Liberal members did not want to increase that. We heard from a number of Canadian groups who believe this is blatantly unjust, particularly family members who have lost a loved one, to say that a minimum fine or sentence of $1,000 for killing someone is just.

I would ask the member representing the Green Party of Canada if she feels those mandatory minimums for killing somebody while driving drunk are satisfactory.

Elizabeth May

Mr. Speaker, I have to approach this on the basis of the impact societally of mandatory minimums. The overwhelming evidence from experts in criminology is that mandatory minimums do not work as a deterrent, and that mandatory minimums have an effect of skewing our judicial system so that a judge has less discretion in perhaps giving more significant penalties. In some states, for instance, Texas, they have stopped using mandatory minimums. They increase the discretion of a prosecutor to work with a defendant to force a result before it even goes to trial, and in some cases, allow a lesser penalty.

I know that my hon. friend for Langley—Aldergrove disagrees. However, I would rather see our courts apply the sentences based on a judge looking at the severity of the crime. I agree and also offended when someone who has killed someone while drinking and driving is let off with a light sentence. My disagreement with my friend for Langley—Aldergrove is that I do not think mandatory minimum sentences are the solution.

Marilyn Gladu – Member for Sarnia-Lambton

random testing. When we look at traffic fatalities in Canada, we know that 16% of them are alcohol related, 24% are drug related, and another 18% are a combination of the two. What is troubling to me is the hypocrisy of legalizing marijuana, which is going to increase the amount of impaired drug driving, when there is not even a test for impairment. Whether the tests are random or not, there is no test for impairment with marijuana.

Would the member comment that?

Elizabeth May

Mr. Speaker, I am very concerned as well, and not just about the Mr. Speaker, my hon. friend is correct in that cannabis is to be legalized. However, the evidence is conflicting. We certainly do know that intoxication with cannabis and intoxication with alcohol have very different physiological impacts, and the blood tests are different. For instance, blood alcohol levels diminish much more quickly than residues of cannabis and THC in the system, which can be present for days and when a person is no longer intoxicated. A person behind the wheel of a car while having ingested cannabis is more likely to drive more slowly. They may not be a safe driver, but they are unlikely to do what people who have been drinking, we know historically, do, which is to drive more recklessly and faster.

The work is being done, and I am satisfied that we will see ways to analyze the intoxication of people who have ingested cannabis.

John McKay – Member for Scarborough-Guildwood

Mr. Speaker, I thank the hon. member for her comments on this bill, which I think are largely constructive, and her amendments reflect a legitimate worry. However, I take issue with one concern the member has, which is that this proposed legislation would be challenged in the courts.

I can personally guarantee that this will be challenged in the courts. There is not a scintilla of doubt in mind that this will be challenged. I recollect the time when 0.08% was put in the Criminal Code, and it was challenged every which way from Sunday.

I would ask the hon. member, being concerned about the proposed legislation being challenged in the courts, should Parliament still not face up to the larger public purpose of putting forward this legislation, and how the courts deal with it is how the courts deal with it?

Elizabeth May

Mr. Speaker, I confess very honestly that this bill has led me to be torn. I have debated myself very strongly. I will vote for it if it is put forward without my amendments. I know that some of the experts before the justice committee urged that we not pass it without the amendments. I think the larger public purpose is so significant that the courts may or may not find that it is constitutional. There is that doubt.

I think the bill could have been constructed to ensure that the random nature of roadside screening have more surrounding it and include reasonable and probable grounds, so that police personnel will have enhanced access to breath screening, and blood drug and alcohol analysis at the roadside. I agree with all of that. The question is if the screening is not truly random and is targeting certain marginalized groups, I think that increases the likelihood that it will be overturned in the courts. That is something that I think we could have addressed on amendments.

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