Sentencing

Toughness doesn’t always equal deterrence…

?

Last month, I hosted a virtual townhall with MADD Canada volunteers, victims and survivors and staff to explain what our public policy priorities are and how we choose them. We take a holistic approach as there is no single answer or magic bullet to stop impaired driving. If there was, I wouldn’t be writing this and you would be reading something else.?

?

We try to focus our work on prevention first and foremost, including public awareness, educating youth, evidence-based laws/policies and effective enforcement. We also support meaningful and appropriate sanctions that focus on the behaviour, addiction issues and have meaningful consequences.

?

Talking about prevention to a group of people who have lost a loved one or been injured by an impaired driver is not always easy because as much progress as we have made, and we have made progress, we did not prevent someone from impacting their lives. That is never lost on me, but I also know one of the reasons many of them turn to MADD Canada is to prevent another person or family from experiencing what they did.

?

One of the most common questions I get is why MADD Canada is not pushing harder for tougher penalties and/or mandatory minimum penalties for impaired driving when someone is killed or seriously injured. And my answer is not always well-received because in terms of deterrence and prevention, there is little evidence that tougher penalties or mandatory minimums work very well.

?

People who have lost someone or been injured often want people punished and that is understandable. Offenders should be held accountable and sentences for impaired driving causing death or injury have gone up in the last decade. Admittedly incrementally but they have increased. If I look back at some of the older files we have, I see drivers who caused a death getting a conditional sentence (i.e. house arrest). Today, the average is around 5 years.

?

That may not be enough in the eyes of many and I get that, but the courts are taking impaired driving more seriously.

?

But if the goal is to prevent people from driving impaired, the severity of the sentence has less impact than a lot of us might assume it does. I am often met with very skeptical faces when I say this because common sense tells us that people will not do something if the consequences are tough enough. But common sense is not always right. What really deters people is their perception of getting caught.

?

But let’s focus on tougher penalties. A few years ago, there was a petition to amend the Criminal Code to have a mandatory minimum penalty of 15 years if someone drove impaired and caused a death. That would mean anyone and everyone convicted of impaired driving causing death would get a minimum sentence of 15 years, no exceptions.

?

Regardless of your opinion on that, a 15-year mandatory minimum sentence would never survive a Constitutional challenge. However, let’s assume for a second it would not be ruled unconstitutional (but believe me, it would).

?

For any sentence to be a deterrent, the person who is thinking about driving impaired would have to believe they will get into a crash…which none of them do.

?

For the sake of this article, pretend they think there is a good chance they will get into a crash. Our driver is not deterred by potentially ruining their car or harming themselves or their passenger. They are willing to accept those risks…and they are willing to take the risk of killing their passenger or themselves (half of those killed in alcohol impaired crashes are the drivers). And they have not problem with the idea they may kill a pedestrian or a complete stranger, or strangers, in another car.

?

None of those things deters them from driving impaired…but potentially getting a sentence of 15 years in prison (if they are convicted) will make them change their mind. Is a 15-year sentence more of a deterrent than dying?

?

Of course, that assumes the driver understands what the actual penalties are. The maximum penalty now is life and I know (and maybe you know) that a life sentence is rare (only 1 in Canada I am aware of) but does the average person know that? The average Canadian does not know a lot about the complexities of the criminal justice system.

?

Does anyone really think like this; make these kind of complex calculations – I might kill myself and/or someone else but the prison sentence is just too much?

?

Or, is it more likely that most people thinking about driving impaired don’t actually think they are impaired or figure it’s okay because they don’t have far to drive? Or they think they can get there without being stopped by a cop if they take the back roads or drive slowly?

?

Sentencing is complex and for people who have been impacted by impaired driving, it can be emotional. There is no sentence that will bring back a child or a sibling, or give back a leg or take away the pain that wracks a body every day. They want sentence to reflect the harm they have suffered and no sentence will ever do that.

?

Their voices are important as are Victim Impact Statements. They have every right to want a sentence that meets their definition of justice. Courts do take impaired driving more seriously today than they did a decade ago but in terms of deterrence, sentencing does not accomplish what many of us hope it will.

?

We have evidence about things that change people’s behaviour and maybe we can talk about some of them next month. ?

?

?

?

?