CBC
March 12, 2018

It’s docket day in provincial court in downtown Charlottetown. This is where most people charged with crimes on P.E.I. make their first appearance, and the courtroom is packed.

On one side of the aisle there are a couple of dozen young people. It appears to be a class from high school, here to learn about how the court system works.

On the other side, the accused and their supporters wait for their names to be called.

It feels something like an airport in this room. No one wants to be here, but it is necessary for where they are going.

We are called to rise for Chief Provincial Court Judge Nancy Orr at 1 p.m. and within 30 seconds the first name is called.

In the next three hours Orr will hear more than two dozen cases: drug offences, assaults, thefts from a bar, a grocery store and a department store, damage to an RCMP vehicle, impaired driving.

At 4 p.m. there is just one man sitting on the bench waiting to go to jail that night. He has pleaded guilty to impaired driving, his first offence. He is sentenced to three days in jail, a $1,000 fine, a $300 payment to the victims of crime fund and a 12-month driving prohibition.

His case — including a reading in of how he was arrested, his 0.160 blood alcohol level, his being cautioned on the implications of his guilty plea, and sentencing — took eight minutes.

That an impaired driver should be sitting on that bench alone waiting to be locked up is not an unusual circumstance on P.E.I., but it would far more uncommon anywhere else in the country. In 2015-16, P.E.I. incarcerated 91 per cent of convicted impaired drivers, a rate that is almost 10 times the national average.

No other province incarcerated more than 20 per cent.

It is a decades-old practice meant to deter drinking and driving, but there are serious questions about whether the strategy is effective.

A continuing problem

It’s not just P.E.I.’s propensity for jailing impaired drivers that led to that lone man on the bench in the provincial courtroom.

Despite almost a century of illegality, Orr said drinking and driving is the most common offence she sees.

“It’s a very rare day we don’t have an impaired case, and in most days it’s a third to a half,” Orr said.

Tough sentencing, she said, is the court’s contribution to letting people know impaired driving is a serious offence.

“That’s what the jail is all about, the deterrent aspect,” she said.

Measuring drinking and driving

While it is still a significant issue in the province, drinking and driving rates appear to be falling.

These rates can be difficult to measure and to compare province to province and even year to year.  The best available data is the incident-based crime report from Statistics Canada, but there are questions about how what it measures relate to a population’s actual drinking and driving behaviour.

These statistics take police-reported incidents of impaired driving and provide a rate per 100,000 population. Police catch only a portion of impaired drivers, but the number they catch depends on the resources they devote to the problem, and that can vary from place to place and from one year to another.

Despite these issues, criminologists still consider the Statistics Canada crime report the best available measure, and the province of P.E.I., while cautioning about interprovincial comparisons, cites them as evidence that fewer people are drinking and driving on the Island.

Looking back over the decades can cause further issues, because Statistics Canada periodically amends how data is gathered. The last major change was in 1998, but we can see a significant decline both provincially and nationally since then.

Using five-year averages to smooth annual fluctuations shows a 25 per cent drop in the rate on P.E.I. in 2012-16 as compared to 1998-2002. Nationally, the rate fell 21 per cent.

‘A strong deterrent’

Cindy Wedge, director of prosecutions for P.E.I., noted the province uses a wide variety of measures to combat drinking and driving, including police checkpoints, ignition interlock programs and impounding vehicles.

Wedge is a firm believer that the Island’s practice of locking away 90 per cent of convicted impaired drivers is a factor in that decrease.

“Any impaired driver is one too many, but I think that the fact the numbers are consistently coming down over consecutive decades shows the steps that are being taken are having an impact,” Wedge said.

Wedge also bases her opinion on her experience in the courtroom. She has witnessed the sentencing of all varieties of offenders, young and old, men and women, many of whom have never encountered the legal system before.

“People who have lived a life without criminality get charged with impaired driving, and those are the people that you see in court incredibly ashamed of their conduct, who are very fearful of the consequences. They have never gone to jail before,” she said.

“You see the tears, and you see the knees shaking, and you see the trembling and the anxiety those people are experiencing. … They are terrified, so I do believe very strongly that knowing that you’re going to jail has a strong deterrent effect.”

Should  P.E.I.’s rate of impaired driving be even lower?

University of Toronto criminologist Tony Doob does not see it the same way.

“It just seems like a naïve approach to a very serious problem,” Doob said.

Doob points out while drinking and driving rates on P.E.I. are down, they are down right across the country. In the last 20 years, the P.E.I. rate has fallen only a little faster than the national rate, and not as much as it has in New Brunswick, Newfoundland and Labrador, or Ontario.

‘Offenders generally don’t think about the likelihood of going to prison.’— Rick Brown, Australian Institute of Criminology

P.E.I.’s rate, averaging 300.3 incidents per 100,000 population in 2012-16, is almost 50 per cent higher than the national rate of 213.5.

“You could argue that in recent years if incarceration was such a great cure to the serious problem of drinking and driving the rate in Prince Edward Island should be lower,” Doob said.

The trouble with P.E.I.’s practice, he said, is people — whether they are considering stealing something, hitting someone, or drinking and driving — are not generally put off by potential penalties. They are more concerned about getting caught.

People generally understand, he said, that the penalty for drinking and driving is serious, but his own research has found they are fuzzy on the specifics.

If people only learn in court that they are going to jail, it is too late for that to act as a deterrent.

A concern about getting caught

Rick Brown, the deputy director of the Australian Institute of Criminology, had similar findings in an international review paper on drinking and driving research.

“Offenders generally don’t think about the likelihood of going to prison. They think about the certainty of being caught rather than the severity of the sentence,” Brown said.

“What you need to do is plant in the mind of people the notion that if they do drink and drive they’ll be certain to be caught.”

What Brown did find to be effective is random breath testing. Drivers who have been stopped and checked, he found, were more likely to believe they would be caught and therefore didn’t drink and drive.

Random breath testing is currently not available for police in Canada. There are provisions for it in Bill C-46, currently before Parliament. Some defence lawyers have complained it violates Canada’s Charter of Rights.

Police can do random sobriety checks, and Brown found these seem to have a similar level of effectiveness.

Community standards

The Criminal Code tends to allow for a wide variety of sentencing so that different jurisdictions can apply their own community standards.

This is what is happening on P.E.I., Wedge said, as the courts apply stiffer sentences for what they categorize in drinking and driving as a serious offence.

Andrew Murie, CEO of MADD Canada, said that is an important consideration.

“I think it sends the right message but we have to be very clear that we have absolutely no evidence that this practice reduces rates of impaired driving,” Murie said.

“There’s no downside to it, even though we don’t have evidence to support that it does reduce charges.”

But Doob believes there is a downside. Governments have limited resources, and jail time is expensive.

P.E.I. consistently has more people in jail than the national average, despite a low violent crime rate. The government says this is because of its practice of incarcerating drunk drivers.

Doob would rather see money spent on initiatives that have been shown to work, rather than on locking people up.

“The enforcement issue is non-trivial. We do know that when people think they’re going to get caught for impaired driving there is much less of it,” he said.

“That’s what you should be focusing on.”

Incarceration casts a broad net, Doob added, with impacts not only on the offender, but also on people who rely on the offender.

As long as penalties for drinking and driving are seen to be serious, even if people are fuzzy on the specifics, that is enough, he argues.

Even in British Columbia, where the province has recently moved away from criminal charges for impaired driving, the real costs of a conviction — with the fine, cost of ignition interlock, and increased insurance fees — can be between $4,000 and $5,000.

That, along with societal disapproval, can be enough of a deterrent, Doob said.

And from there, he added, it is more a matter of convincing people they will get caught.