The Power of Perspectives

The Canadian Bar Association

Kim Covert

CBA has serious concerns with proposed impaired driving bill

March 28 2018 28 March 2018

 

The CBA appeared before the Senate Committee on Legal and Constitutional Affairs in late February to reiterate its concerns with a bill that it says will introduce uncertainty into the criminal law and carry serious repercussions for permanent residents and foreign nationals.

The CBA supports the overall aim of the bill, which contains amendments to better address both drug and alcohol impaired driving, but urges “careful consideration of our concerns and recommendations about Bill C-46.”

The February submission from the Criminal Justice and Immigration Law Sections follows on a Criminal Justice Section submission made to the House Committee last fall outlining the CBA’s concerns with the bill, and adds information about its possible impact on permanent residents and foreign nationals. The House Committee recommended changes that did not address the issues raised by the CBA.

The Sections note that amendments have been made to the bill, with positive and negative results. While they’re happy to see a new “review and report” provision in the bill, they’re less happy to see additional mandatory minimum sentences.

“The CBA has long opposed mandatory minimum sentences in favour of judicial discretion,” the Sections write.

As written, the bill “will introduce uncertainty into the law and result in significantly increased litigation and delays,” the Sections write, and the restrictions on using or disclosing the results of tests relating to drug or alcohol use could end up depriving both the Crown and the defence of valuable evidence. “For example, if an accused charged with murder had fled the scene in a vehicle and was subsequently charged with impaired driving, the results from any analysis would be admissible only in the impaired trial, yet the issue of intoxication could also be key to the murder.”

For permanent residents, certain sentencing provisions of Bill C-46 would move a single impaired driving offence into the area of “serious criminality.” A conviction could could render them inadmissible to Canada and lead to deportation. Moreover, impaired driving convictions in other countries would be deemed serious criminality as well, with only a narrow avenue for rehabilitation and no right of appeal.

“Reclassifying foreign impaired driving offences as ‘serious criminality’ would impede the flow of legitimate travellers and put a significant strain on Immigration, Refugees and Citizenship Canada and Canada Border Services Agency resources,” the Sections write.

The Immigration Law Section makes two recommendations intended to “continue to protect Canadians from impaired driving without triggering the serious criminality consequences under IRPA.”

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