Solicitor General Rich Coleman says proposed changes to B.C.'s drunk-driving laws are now "very unlikely" to proceed in their original form.
A storm of protest was unleashed when The Tyee reported on Friday that the government was considering, among other moves, creating a new provincial offense for impaired driving - one that had the potential to spare thousands of drunk drivers either a criminal record or a mandatory year-long license suspension.
"It's only a discussion paper," Coleman told The Tyee just hours after the story broke. "Only a discussion paper."
That wasn't the impression that had been left with RCMP and police officers throughout the province in meetings over the past few months. During various meetings with ministry personnel, they'd been led to believe that the new offense would almost certainly be in place within a matter of months. The question had not been whether to implement it, but how best to do so.
Coleman switches gears
In fact, when Coleman talked to The Tyee on Thursday, he was keen to defend the concept. He pointed out the inordinate amount of court time that is now being taken up with impaired driving trials - 25 per cent of all trial time in B.C.'s Provincial Courts.
Coleman pointed out that many impaired drivers were now escaping the worst consequences of their actions anyway. The number of impaired driving charges laid under the Criminal Code was fewer than 7,000 while the number of 24-hour suspensions given by police for drunk driving was more than six times that number.
As well, Crown counsel now sometimes would agree to a plea bargain in which someone accused of impaired would plead guilty to the Motor Vehicle Act charge of driving without due care or attention, rather than go to trial on the impaired charge. Coleman argued it would surely be better for a drunk driver to receive a 90-day suspension and a notation for impaired on their driving record, than just a notation for driving without due care which carries no automatic suspension and which doesn't reflect the actual offense.
Yet, while defending the idea, Coleman also gave himself an out, as reported in Friday's Tyee. The idea of the new provincial offense, he said, wouldn't go ahead unless it had the support of the community as a whole and especially of the law enforcement community.
Once the story became public, it took all of four hours for Coleman - and anyone else who was paying attention to the issue - to realize that the idea did not have broad-based support, either from the community at large or from the police officers who'd have to enforce it. Callers to radio talk shows were outraged. A number of members of Mothers Against Drunk Driving (MADD) told The Tyee they were opposed to the proposals.
And many police officers, while admitting the current system is flawed, were convinced that creating a new offense with substantially lesser penalties wasn't the way to fix the problems.
Wrong way to fix problem say police sources
Coleman suggested that one reason for the huge number of 24-hour suspensions being given out by police was the huge amount of officers' time now needed to process a full impaired driving charge under the Criminal Code, as much as eight officer-hours per case. But several officers I talked to said the time taken up wasn't usually the key issue.
All of these officers are traffic experts, crash analysts and reconstructionists - the police officers who attend the most serious traffic crashes, who see the worst mayhem, who witness the saddest human tragedies. And that, unanimously, was the reason why they were unprepared to move to a system that would reduce the penalties for impaired driving, particularly for those whose blood-alcohol reading was over .08.
"It's not even like decriminalizing marijuana," one said. "I'm not necessarily in favour of that either, but with marijuana, you can at least argue that possessing it isn't something that by itself is going to hurt other people. But with drinking-and-driving, every time you get behind the wheel, you're risking the life of every other road-user."
The traffic officers also wanted to stress that impaired driving should be distinguished from other motoring offenses on the basis of intent. "You're not paying enough attention and you miss a stop-sign," one said. "That's an error in judgment. But impaired driving isn't an error in judgment. You deliberately decide to get into that car once you've been drinking. You deliberately decide to take those risks."
The officers said that their main concern about the current system is the immense number of technicalities that the courts have ruled will defeat an impaired charge, no matter how obvious it was that the driver was hopelessly drunk. Rather than creation of the new charge, they would prefer to see the government work to have the Criminal Code rules clarified to provide what they see as a better balance between the rights of the accused and the right of the public to be safe from drunk drivers.
Optics a possible liability
Quite apart from the outraged reaction to the merits of the proposal, it quickly became clear that the idea would also cause the government an unneeded political problem. Coleman had made it clear to The Tyee that the proposal had nothing to do with Premier Campbell's arrest and guilty plea for drunk driving while on vacation in Hawaii in January 2003. In fact, his ministry was beginning to develop the idea several months before Campbell's ill-fated vacation.
In politics, however, optics matter. The Liberals faced heading into the final year before an election with a legislative issue that might help remind voters that the premier is a convicted impaired driver.
By Friday lunchtime, Coleman had made it clear that he didn't like the word "decriminalization" that we at The Tyee and other media outlets had applied to the proposal. Technically and legally, he was doubtless right. The provincial government has no jurisdiction to fully decriminalize impaired driving or any other offense in the Criminal Code. The criminal offense would remain on the books, and undoubtedly would continue to be used for many of the most serious cases - perhaps drivers who had been involved in serious crashes, or those who had a lengthy history of repeat offenses.
But from a practical point of view, the offense was in fact going to be decriminalized for hundreds or thousands of drivers each year. Previously they would have ended up with a criminal record. Now they wouldn't. That's the essence of decriminalization.
By the end of the day, Coleman had recognized the lack of support and had moved to the "very unlikely" line. Perhaps as the government rethinks the plan before the fall sitting of the legislature, it will look at ways to maintain some of the positive aspects of the discussion paper, such as increased education and awareness programs, while ensuring that enforcement is as effective as possible for those who make that decision to take those risks and drive drunk.
Barbara McLintock is contributing editor to The Tyee.