Jas Goraya 

On September 27, 2015, a minivan carrying six family members- three of them children under the age of 10- was struck by a drunk driver at the intersection of Kipling Avenue and Kirby road in Vaughan. The crash led to the tragic death of the three children and their grandfather. Police reported that the driver, twenty-nine-year-old Marco Muzzo, has previously never been charged with impaired driving despite driving drunk on four separate occasions. The parents of the children, Jennifer and Edward Neville-Lake, were not in the car at the time of the accident and are now left without any of their children.

Incidents of alcohol and drug impaired driving have become all too familiar to officers and justice policymakers alike, calling into question the efficiency of the legislative framework that was put in place to protect Canadians from such road collisions. From 2000-2007, a total of 12,978 Canadians died in crashes involving impaired driving. All these collisions had one key commonality – the driver responsible for the collision had been under the influence of drugs, alcohol, or some combination of the two. Despite a sizeable decrease in the impaired driving rate since the mid-1980s, alcohol- impaired driving is noted as the leading cause of criminal death in Canada.

In Canada, the Criminal Code prohibited alcohol-impaired driving in 1921, followed by an insertion prohibiting drug-impaired driving in 1925. In 2008, the Criminal Code was amended to give officers more power to demand “physical coordination tests”, (i.e. Standardized Field Sobriety Tests or SFSTs) and Drug Recognition Evaluations (DREs), which are known for clarifying a driver’s mental and physical state at the time of the test. Eventually, the DRE process began to be perceived as expensive and susceptible to legal challenges as it served a small and inconsistent role in criminal prosecutions. Furthermore, justice policy-makers note that the testing and reporting of impaired drivers involved in fatal crashes is not consistent across Canada, with one Canadian Centre on Substance Abuse study noting that the percentage of drug-positive drivers rose from 29.7% in 2000 to 36.7% in 2008; while other studies mentioned that there has been a definite decrease over the past 5 years of drivers driving while impaired. As a result of reporting and prosecution inconsistencies, stakeholders such as MADD (Mothers Against Drunk Driving) have argued that alcohol and drug-impaired driving is largely “under-enforced” in Canada.

In the year 2010, the rate of driver fatalities resulting from drug impaired driving was 34.2%; similarly, the rate of fatalities resulting from alcohol impaired impaired driving was 39.1%. The problem of impaired driving is arguably worse for our neighbouring country, as noted by the 2013 U.S. National Survey on Drug Use and Health (NSDUH: an estimated 9.9 million people (or 3.8 percent of adolescents and adults) reported driving under the influence of illicit drugs during the year prior to being surveyed. By comparison, in 2013, an estimated 28.7 million persons (10.9 percent) reported driving under the influence of alcohol at least once in the past year. According to the National Highway Traffic Safety Administration’s (NHTSA) 2007 National Roadside Survey, more than 16 percent of weekend, nighttime drivers tested positive for illegal, prescription, or over-the-counter drugs. More than 11 percent tested positive for illicit drugs. After reviewing such statistics, stakeholders and the public have increased pressures on the Canadian government for an acceptable legislative and policy response.

The Policy Response?

What should justice policy-makers do? Strengthen existing legislation by modernizing drug-driving offences, create better scientific roadside devices that detect alcohol and drugs, create a harsher mandatory minimum sentence, address the backlog of impaired driving cases in the criminal justice system, or look at making enforcement practices consistent throughout the country first?

Canadian policy-makers are divided about the policy response, as some officials argue for an increase in the mandatory minimum framework from the stipulated $1000 fine to a minimum six-year sentence when impaired driving has caused death- this approach assumes that the increase in the mandatory minimum framework would serve as a deterrent. Others propose a more precise classification of drug-impaired driving into the Criminal Code, suggesting that Canada should follow in the United Kingdom’s footsteps in modernizing the offence of drug-impaired driving, this would mean expanding the language of the Criminal Code through identifying consumption limits for drivers and identifying the consequences of exceeding those limits.

This would also require identifying the top ten most commonly used drugs by drivers, establishing legal limits for such drugs, and establishing and regulating roadside devices that will test drivers through either a blood or saliva sample. Justice policy makers often argue that advanced roadside devices will necessitate the construction of labs where scientists would have to test and develop concentration levels for the top ten most commonly used drugs and invent a device which picks up on those levels- a task which can potentially cost millions of dollars to develop and regulate. In addition, the central challenge in prosecuting drug impaired driving is how to test for impairment of each specific drug and where to draw the limits of consumption for each drug, as the characteristics of an individual (e.g. height, weight, resilience to drug etc.) will determine whether he or she is impaired – and to what degree.

As evidenced by the proposals above, addressing impaired driving is a behemoth policy task, as it: opens up debate around modernizing the drug impaired offences; commences an entrepreneurial race as to who can construct a roadside device which can detect both alcohol and drugs; and, finally, it calls for more resources and money being placed into a policy area that has not had a lot of political attention.

In June 2015, the Government of Canada took the first approach outlined above, they proposed a bill that called for an increase in the mandatory minimum sentences from $1000 penalty to a minimum of six years in prison for impaired driving causing death. This bill’s mandatory minimums would limit several technical defenses that contribute to the backlog of impaired driving cases in the criminal justice system, by restricting the Criminal Code to limit the Bolus Drinking Offence, which essentially allows drivers to argue that their impairment was the result of heavy drinking just before driving and thus was not reflected in their blood alcohol level when tested. The bill would also limit the Intervening Drink Defence in which drivers argue that a high blood alcohol level resulted by drinking after driving. Lastly, the bill would also “simplify” the process for proving blood alcohol levels. This bill, if passed, could be an important initial step in the otherwise long journey of addressing impaired driving in Canada.

Taking the First Steps:

Regardless of which approach is taken, one thing has become increasingly clear: impaired driving is not a hot topic. A majority of Canadians do not have it on their radar, simply because it is common sense not to drive while impaired, yet we increasingly see collisions claiming innocent lives where the driver was clearly inebriated. All three major political parties have expressed the need to get the provinces involved in this behemoth of a policy task, as the provinces and territories have played an essential role in introducing penalties and controls that permit immediate action taken against impaired drivers. All jurisdictions (excluding Québec) have implemented temporary suspensions for drivers whose blood alcohol concentration (BAC) is considered to be elevated but still legally below the criminal limit of 0.08. As well, all provinces have adopted a zero BAC limitation for new drivers, adding restrictions to the driver-licensing schemes. These are important first steps to strengthening the existing legislation. Furthermore, as illustrated by the United Kingdom model, it is very possible to target (both alcohol and drug) impaired driving as long as it consistently remains a priority for future governments. Seeing as impaired driving was introduced into the Criminal Code in 1921, isn’t it time we finally looked into what is working and what is not, based on the years of statistical evidence right in front of us?

 

Jasjit Goraya is a 2016 Master of Public Policy candidate at the University of Toronto and a Compliance Analyst with the G20 Group at the Munk School of Global Affairs. She previously completed an Honours Bachelor of Arts Degree in Political Science and Criminology at the University of Toronto. Jasjit’s main areas of interest include Canadian youth justice policy, foreign affairs, and immigration policy.