Latest / Kvetch & Release / Analyzing Ontario's new new DUI legislation
Transcript
- Hey folks, we're back John mctig here on AM eight hundred CKLW ten p thirty three right now, on this twenty first of May. And this feels like it is a new thing. Maybe not quite nationally, but at least in Ontario, drivers accused of being drunk behind the wheel have suddenly been presented with a deal that would see their charges downgraded to offenses under the Highway Traffic Act instead of the Criminal Code, which will provide a rare opportunity to avoid risk of a record. Now, the deal meant that those who accepted wouldn't have to face a criminal trial, and our court system would have fewer cases making their way through an already back logged system. And I'm bringing on right now to discuss this Boris Botenski, who is a criminal lawyer, to discuss Bori's great to have you here. Thanks John, Thanks for having me on. Thanks you. Yeah. So I look at this and I got to say I felt like I was looking at a case of two different stories here because this story, of course you know why the Ford government allows judges to lower impaired driving charges. But at the same time, I'm seeing another story out that says our local mad community leader here in the city commends the Ford government on stiffer impaired driving legislation. I'm wondering if you could help thread the needle between these two stories here about this issue. Yeah, and honestly like to be perfectly blunt, and neither of these are new stories. So the headline that I think you and I are both talking about is that you know why the Ford government allows judges to lower impaired driving charges. This is not a step taken by judges, It's a step taken by prosecutors. And I'll come back to that in a moment. And similarly, the new legislation that is being discussed that the Ford government's talking about introducing to deff and penalties really doesn't change much in terms of what we already have. And there's some very minor changes that are being proposed to punish more extremely those who commit the most gravest of drinking and driving offenses where somebody ends up dying, and that's fine, there's nothing wrong with those changes. But for the most part, there's not much difference between what's being proposed and what we currently have in place. So let me explain very briefly in terms of what it seems to be in the news. There is a recognition now that many individuals on Ontario who have been charged with drinking and driving offenses have had their charges prosecuted. Rather than being prosecuted through the criminal process, they have an option to resolve their case about leading guilty to charges under the Highway Traffic Act, typically cares driving charges those carry various sanctions including the loss of driving privileges or restriction on driving privileges, that they don't carry the full criminal sanction, and I think that's as being discussed. There are also offers being made to resolve those charges by please to the criminal offense of dangerous driving, which is still a crime, but just in a slightly different category and carries much of the same penalties that drinking and driving charges do. And there seems to be some criticism because it seems to be a suggestion that we're going easy on those who commit drinking and driving offenses. And I guess for the lowest level ones that we resolve through kills driving resolutions, it is a better resolution, undoubtedly, But there has to be a recognition that our courts, mostly as a result of the COVID pandemic are overflowing. We simply can't prosecute every single charge that's laid. And if we want to make sure that our courts have the capacity to prosecute the personal violence offenses, the sexual violence offenses, that the victims of those kinds of crimes have their day in court, we have to do something about addressing some of the drinking and driving cases that take up a lot of the docket otherwise to make sure that there's enough time to prosecute other cases as well, the ones that I think many in the community will think of more. Well, maybe you could dive into that right now, because you know a lot of people don't spend as much time in the court system as you do. So when we're discussing this right now, someone who is facing a DUI could be taking up time in a court that could be you know, omitting a sexual assault victim to be able to that's right. So if you think about it as every jurisdiction is different in some places are busier than others. But if you accept you know, there's for the sake of argument, ten trial courts in one jurisdiction or three in another, or however many in a third place, there are only so many trials in a data can be accommodated, and there's more cases in the system currently than we have trial space for, so we have to be a triage in cases to some extent. So if you are charged with let's say you go through a ride program and you blow over the limit, but there's been no accident, your readings are a little bit over, but not that much. There's no prior history of drinking and driving, you don't have a child in the car, There's nothing else particularly aggravating about it. Of course, all drinking and driving cases are serious, but this is relatively speaking, less little than others. That individual may be given the option of pleating guild. First of all, that person will still lose their license for three months as soon as their charge. They may then receive the option to plead guilty to a charge and care to the Highway Traffick Act called Carroll's Driving, which instead of going through the criminal process, will free up that court for other more serious charges. That person will be placed on probation for a year. Typically they'll have driving restrictions, They'll still have their initial three month suspension. They may have other aspects of the suspension depending on the circumstances and the breath readings, but they won't face the criminal sanction. I think frankly, many members of the community will feel that that is an appropriate trade off given what we now have in terms of our court backlogs, and frankly, MAD which is the biggest watchdog and drinking and driving prosecutions that there is, generally supports this approach because they want to make sure that these individuals are taken off the road, which the general speaking are, and whether or not to end up with a criminal conviction or not is of less importance to them, and frankly should be less importance to others in the community as well. In my view, I find it so interesting how you described it as paraphrasing triage in the court system, but that of course it is exactly what it is, making that most important cases get forward rather than the other ones that don't reach that same bar. What about other comparable jurisdictions across the country. Is there any other province or territory that does something similar already? Well, many jurisdictions have adopted this type of triogy model as a response to COVID. But I have to say, you know, places such as BC, for example, even before with the pandemic, typically did not prosecute lower level drinking and driving offenses that In British Columbia, what they have imposed many years ago is an administrative scheme that if you are stopped and you blow over the legal limit, you instead of being charged criminally, you will have a process goes through their version of the Highway Traffic Act where basically you lose your license for a year. It's very difficult to challenge in court. So the penalties are very similar. But the difference is you don't have a criminal record, and that matters to a lot of people. There are people here who don't have citizenship. They could lose their status in Canada with a criminal record. They will give up their right to drive, but not the right to be otherwise employed in Canada and so on. So BC has had this model for years. There has been a complete buy in as far as I'm aware from mad in British Columbia they support that initiative. It is something that other provinces have kicked around. And the bottom line is you don't only take drivers off the road by the criminal process, you can also do it through other methods such as BC has done with the same type of protection to the public about these individuals driving. So, as you said, you know that seems like there's a lot of buy in here, at least from our local mad community and Windsor Essex. They're supportive of this. The government obviously is they've brought this forward. It sounds like your supportive of this. It sounds like there's buy in quite frankly across the entire system. Well, it's not so much buying. It's a necessity and it's not just a response to COVID. I should say it wasn't at all uncommon for a lower level drinking and driving cases to be resolved in this way even before the pandemic. Again, it's a recognition that some cases are marginal. There are some cases that have defenses available, and rather than risk an acquittal in a marginal case, which not only ties a court space, it results in no penalty to the individual charge. This is a pragmatic solution. Frankly. It takes into to account the entire public interest, which is really especially nowadays, which is to ensure that serious cases get on and individuals who perhaps may have broken the law here still face some penalty, albeit not necessarily the full penalty of options that are available under the criminal loan. Well, you know, it's a very interesting one. I appreciate you coming on to THEAY discuss Boris. My pleasure, John, thanks for having me on. Thank you so much. Boris Potenski is a criminal lawyer. What are your thoughts about this one? Folks? You can call or text in at five one nine seven ninety two CKLW. That's five one nine seven nine two two five five nine. Why the Ford government is allowing this discretion in regards to you know, it's just it's triaging our court system right now. It's backlogged and that's the problem. So they're trying to make sure that the most important cases get through and those that aren't, you know, are dealt with in another way. Nobody wants them to get, you know, off without any repercussions whatsoever. Ten forty three. We're gonna take a quick break right now. When we get back on the other side, we'll keep this conversation going right here on AM eight hundred