BRIEF TO THE
STANDING COMMITTEE ON JUSTICE, HUMAN RIGHTS
HOUSE OF COMMONS
39th Parliament, 1st Session
On Amendments to the Criminal Code of Canada
CANADIAN CRIMINAL JUSTICE ASSOCIATION
February 15, 2006
Background of Canadian Criminal Justice Association
The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the Standing Committee on Justice and Human Rights concerning Bill C-301, an Act to Amend the Criminal Code of Canada (Impaired Driving).
The CCJA is one of the longest serving non governmental organizations of professionals and individuals interested in criminal justice issues in Canada, having begun its work in 1919. We publish the Canadian Journal of Criminology and Criminal Justice, the Justice Report, the Bulletin, the Justice Directory of Services, the Directory of Services for Victims of Crime and we organize the “Canadian Congress on Criminal Justice” every two years.
Mr. Chairman and members of this Committee, our Association has some reservations about Bill C-301. I will outline them briefly and we look forward to your questions and comments:
Impaired driving is on the decline
The rate of impaired driving in Canada has been declining for the past 25 years. One need only look to Juristat’s 2005 Crime Statistics in Canada1to verify this. There, under the heading ‘Rates of Impaired Driving Continue to Decrease’ it is noted that impaired driving dropped 7% in 2005, continuing a downward trend since 1981 (with the exception of 2001). Since 2001, the number of impaired driving charges has decreased from 82,718 to 75,6132. Juristat credits changing attitudes, legislation and enforcement practices with this downward trend; at no point during this downward trend was the criminal BAC level lowered.
Proponents of the 0.05 BAC point to international ‘trends’ as evidence that Canada’s stance on impaired driving is lax, when compared to the international community; these comparisons often fail to consider the enforcement schemes used in those jurisdictions.
University of Ottawa Professor David Paciocco was commissioned by Canada’s Safety Council to investigate the claim that until our BAC level was dropped to 0.05 we were not in line with the international ‘norm’. In his report, Canada’s Blood Alcohol Laws: An International Perspective3, he found that the approach to BAC law internationally is complex and varied and questioned the validity of an argument based on foreign legislation to justify changes in Canada's blood alcohol law.
Professor Paciocco concluded that simplistic generalizations between countries are unrealistic. For instance, using countries with BAC limits of 0.05 or lower as a landmark for appropriate BAC levels ignores that in most of those countries the criminal law is not the means to enforce the 0.05 level; the same would not be true in Canada with an amendment to our Criminal Code, as suggested. To replace 0.08 with 0.05 would result in more prosecutions, criminal records, and a further overburdening of the system.
Already in most provinces and territories, it is impermissible to operate a motor vehicle with a BAC of more than 0.05 by virtue of the provincial administrative scheme; once BAC level reaches 0.08 it becomes a federal/criminal matter. Of the 13 provinces and territories, 10 have adopted temporary BAC licence suspension legislation at levels below 0.08. Drivers in these jurisdictions who are found to have BACs over 0.05 are stopped from driving.
In addition, Professor Paciocco found that Canada's sanctions for impaired driving are among the strictest in the world, even when compared with jurisdictions which have 0.05 BAC limits. For example, a driver who has a BAC of 0.09 but does not show signs of impairment is treated less severely in any of the countries with 0.05 BACs than in Canada.
On the whole, introducing a new criminal BAC level of 0.05 would render Canada’s sanctions to drunk driving much more severe than our international counterparts (with the exception of certain territories in Australia and Belgium). Therefore, it appears that Canada’s current BAC of 0.08 is not only in accordance with the international community, but is one of the strictest regimes; putting into question the call to drop the BAC level to 0.05 based on international ‘trends’.
Lowering the BAC will not lead to a greater decline in impaired driving:
Proponents of lowering the BAC to 0.05 rely on the contention that lowering the acceptable BAC level would reduce the number of drunk driving related deaths. For instance, a study conducted by the Centre for Addiction and Mental Health concluded that in 1996, between 185 and 555 deaths a year would be avoided in Canada if the federal Criminal Code BAC were lowered to 0.05%4. Following this reasoning, the number of deaths would be reduced to zero if there was no allowable BAC level. As a starting point, this logic is flawed. Asserting that a lower BAC level would result in a corresponding number of fewer drunk driving incidents assumes that there is a link between alcohol consumed prior to driving and the legal limit.
BAC is an amorphous measure of impairment; very few people know how their consumption of alcoholic beverages relates to their BAC level. Since the prohibited behaviour is abstract, the reality is that when dealing with those who consume to the point of impairment and then drive, the case rarely turns on whether the accused’s BAC was 0.081 or 0.079: BAC levels, more commonly, far surpass the legal limit, putting into question the connection between consumption and criminal BAC levels.
Based on the foregoing, the CCJA is not convinced that reducing the permissible BAC level within the Criminal Code is the proper avenue for addressing impaired driving concerns. The fact that drunk driving occurrences are decreasing without a change in criminal BAC levels, is an indication that other societal factors are more relevant to changing behaviors than the reduction of an ambiguous standard of impairment.
Impaired driving is already the most oft prosecuted offense in the Criminal Code. Lowering the BAC level to .05 is guaranteed to increase the number of criminal prosecutions and further clog an already overcrowded system. Given the fact that impaired driving is on the decline, and that provincial legislation removes drivers with BAC levels over .05 from the road this legislative proposal seems highly costly and unnecessary.
Finally, the CCJA is not convinced that lowering the BAC will achieve its intended objective. Most Canadians are not aware of the specific correlation between consumption and BAC levels. Responsible Canadians will choose not to drive if they believe their ability to do so is impaired by alcohol. Those who choose to drive while impaired will do so whether the allowable BAC is .05 or .08.
The CCJA believes that the money required to increase criminal sanctions could be better spent on educational programs intended to increase awareness of the consequences of drinking and driving while discouraging that behavior.
2. Includes impaired operation of a vehicle causing death, causing bodily harm, over 80, failure to provide sample. In 2001, the RCMP began reporting incidents in which a roadside suspension was issued rather than a charge laid; in 2002 most other police services began reporting this way as well. Previous to 2004, Vancouver Police only reported incidents of impaired driving when a charge had been laid; as of 2004, their data also include incidents where the driver was over 80 but received a suspension; this resulted in 1,900 more reported impaired driving incidents in 2004 than in 2003.