April 6, 2017 by Canadian Underwriter
Federal politicians debated Wednesday a bill proposing to change the Criminal Code of Canada to allow random alcohol screening of drivers and for consecutive five-year sentences for drivers convicted of impaired driving causing death.
Bill C-226, the Impaired Driving Act, was initially tabled in 2016 by Steven Blaney, the Conservative MP for Bellechasse-Les Etchemins-Lévis, Quebec.
The bill “proposes a minimum sentence of five years in cases of impaired driving causing death, depending on the severity and the aggravating factors,” Blaney told the Commons earlier. “The minimum sentence will therefore be five years if someone causes the death of another person, and the sentences will be consecutive if more than one person is involved.”
The bill was referred to the Commons committee on public safety and national security, which held hearings in September, 2016. In March, the committee sent a letter to the Commons concluding “that the legal problems” with Bill C-226 “far outweigh the potential salutary effects.”
Blaney told the Commons Wednesday he wants Parliament to vote on sending the bill back to the committee. A voice voted was held Wednesday and recorded division was deferred until May 3.
The ruling Liberals “believe that higher mandatory minimum penalties of imprisonment are inadvisable,” Bill Blair, parliamentary secretary to federal Attorney General Jody Wilson-Raybould said in June, 2016 during debate on Bill C-226. The five-year mandatory minimum penalty, for impaired driving causing a death proposed in the bill, plus “the provision requiring consecutive sentences for each person killed” raise “significant” issues under the Charter of Rights and Freedoms, Blair said at the time.
He added the government “supports the bill’s recommendation for mandatory alcohol screening and random breath testing.”
Among the experts testifying before the public safety and national security committee were Greg Yost, counsel with the justice department’s criminal law policy section
“There will undoubtedly be a constitutional challenge to any higher mandatory minimum penalties,” Yost told the committee in September, 2016.
Carole Morency, director general and senior general counsel for the criminal law policy section, alluded to a divided ruling by the Supreme Court of Canada, partly in favour of Joseph Lloyd, released in April, 2016. Lloyd had been convicted of possession for the purpose of drug trafficking Controlled Drugs and Substances Act. He was subject to a mandatory minimum sentence of one year of imprisonment because he had a previous conviction.
The provincial court judge had ruled that the mandatory minimum violated Section 12 of the Charter (which prohibits Canadians from being subjected to “any cruel and unusual treatment or punishment”), because it was “grossly disproportionate to what is justified by the legitimate penological goals and sentencing principles” of the Controlled Drugs and Substances Act. “Without considering the mandatory minimum provision,” the provincial court ruled that an appropriate sentence for Lloyd would be a year to 18 months.
The B.C. appeal court set aside the declaration of unconstitutionality and increased Lloyd’s jail term to 18 months.
Six of the nine Supreme court of Canada judges hearing Lloyd’s appeal agreed that the one-year mandatory minimum sentence was cruel and unusual punishment and restored the original one-year jail term. The other three Supreme Court of Canada judges also restored the original one-year term but contended that the mandatory minimum sentence was not cruel and unusual punishment.
The proposal in Bill C-226 for consecutive five-year sentences for impaired driving causing death “means that one accident, which tragically kills more than one person, will result in 10, 15, 20 or more years of a mandatory jail sentence,” Abby Deshman director, Public Safety Program, Canadian Civil Liberties Association told the Commons public safety committee last year.
“Some mandatory minimum penalties have been upheld in the past, including by the Supreme Court,” Morency noted.
“Impaired driving provisions in the Criminal Code today and historically have been among the most litigated parts of the Criminal Code,” Morency told the committee. “When there is a reform in this area, be it small or significant, as private member’s Bill C-226 proposes, it’s reasonable to expect that there will be charter challenges. That does not mean that provisions would necessarily fail because of the charter challenges, but it is a reality.”
The power for police officers to stop drivers at random “flows out of provincial legislation and common law, and it has been upheld by the Supreme Court of Canada on several occasions,” Yost told the committee. But he added what is “different” with the legislation propsed on Bill C-226 “is that instead of, when the person is stopped, the police officer developing a suspicion of alcohol in the body by smelling alcohol or whatever in order to justify an approved screening device demand under mandatory alcohol screening, as it’s called in Ireland these days, the police officer will present the approved screening device to the person and demand that they provide a breath sample so that he can get a scientifically valid indication of whether or not they are above the legal limit.”
Bill C-226 “is an ambitious proposal that seeks fundamental reform not only to the impaired driving provisions of the Criminal Code but other transportation-related provisions of the code as well,” Blair told the Commons April 5, 2017. He added he is not in favour of proceeding with the bill, though it “includes a number of excellent measures aimed at” addressing impaired driving risk.
The government “intends to introduce legislation this spring that will carefully address both drug- and alcohol-impaired driving,” Blair added.