JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, February 9, 1999

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[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): I'd like to convene the meeting this morning, please. We have with us from the Canadian Police Association, Grant Obst and Dale Kinnear; from the Canadian Association of Chiefs of Police, Maurice Pilon, Roy Berlinquette, and Grant Smith; and from the Ministry of Attorney General of British Columbia, Roger Cutler. Thank you for coming, gentlemen.

Could the Canadian Police Association make their presentation?

Mr. Dale Kinnear (Labour Analyst, Canadian Police Association): Thank you, Mr. Chairman.

We represent approximately 30,000 rank-and-file police officers across Canada, who often deal firsthand with the issue of impaired driving and the technicalities of the law involved in that. I would say that probably just about everyone here, not just the police officers, somewhere has had some experience or has been touched by the consequences of impaired driving. We appear today in an effort to enhance our enforcement efforts and make it easier to deal with these dangerous offenders.

You'll see that our brief touches mainly on enforcement issues and deterrent issues that we feel need to be brought to bear. Although there have been several improvements in impaired driving over the last 10 years or so, I think there's still some room for stiffer enforcement in order to act as a deterrent.

Impaired driving and related sections are among the most frequent criminal offences committed by Canadians. From the first offender to the repeat drunk driver, the menace posed is immense. Equally, the financial costs to society from the death, injury, and destruction of property caused, if ever calculated, is also enormous. Add to that the costs involved in investigations, prosecutions, legal aid, and court time for those charged with such offences, and a picture of how significant the problem is becomes more pronounced. There's perhaps no other criminal offence that affects the lives of so many Canadians than impaired driving. As policy officers, we see firsthand the devastation such crimes can cause.

While the number of impaired driving charges has continued to drop in the last number of years, a quick glance at some of the statistics illustrates the extent of the problem. Consider that 14.6% of the total number of court cases in 1997-98 were for impaired driving. An average of 4.5 people are killed per day in impaired driving accidents. An average of 125 people are injured every day in impaired driving accidents. There are 1,400 people killed annually. There were 74,000 people injured in 1997. In 1996, 42% of all drivers fatally injured in road crashes had consumed alcohol.

It is interesting to note that unlike other types of offences, impaired driving is rarely an offence reported to the police. The number of people arrested for impaired driving is largely due to police intervention. Stricter enforcement, routine road blocks and spot checks have all contributed to the decrease in impaired driving charges.

There's been a change in recent times with the increased use of cellular and portable telephones. Citizens are more willing to call police when they see a potential impaired driver on the road. I would suggest that most of those arise out of erratic driving incidents, and the caller is not really sure whether an impaired driver is involved.

Due to the difficulties in prosecuting these types of offences, many of them are dismissed or plea bargained down to a less serious crime. Some officers undoubtedly use alternatives to criminal charges, including provincial driving suspensions, due to the problem of gaining convictions.

The problem of impaired driving, like any other criminal problem, does not have one solution. It's a multifaceted problem that requires several solutions. On the one hand, we must deal with the small number of repeat, hard-core offenders who seem unaffected by current sanctions. At the same time, we cannot ignore the first-time offender, who is likely not a first-time offender, and the social drinker, because these people are involved in hundreds of accidents every year.

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While statistics indicate a reduction in recent years in impaired driving charges, the current penalties fail to deter the hard-core and repeat drunk drivers. But the first-time offenders also pose a risk to the public, and a strong message must be sent to them as well.

Consider the current sentences being handed down to impaired drivers. Between 1995 and 1996, 55,000 people were found guilty of impaired driving in nine jurisdictions: 66% were sentenced to pay a fine; 22% were imprisoned; 9% received probation; and 3% received other types of sentences.

The first recommendation we have is to amend section 255, the punishment section, to increase the penalty for sections 253 and 254 as follows: for a first offence, to a fine not less than $500 and not more than $5,000, or imprisonment for up to six months or both; for a second offence, to imprisonment for not more than one year but not less than 30 days; and for each subsequent offence, to imprisonment for not more than five years less one day, but not less than four months.

These slightly increased penalties are suggested for practical reasons. The monetary increase, it is suggested, is a more accurate reflection of the danger imposed by drinking drivers. The increase from 14 to 30 days takes into account the reality of provincial early release programs that virtually nullify 14-day sentences. Finally, for a third or subsequent offender, the increase to four months would disentitle such a repeat offender to intermittent sentences restricted as it is to a maximum 90-day sentence.

At the same time, we've recommended a reduction in the maximum penalty from five years to five years less a day to eliminate the need for duplication of court time and preliminary inquiries currently held where the crown elects to proceed by indictment to get a greater than six months jail term. With a five-year penalty, paragraph 11(f) of the charter declares that an accused has a right to elect trial before a superior court judge alone or with a judge and jury, and the crown has to conduct a preliminary inquiry, which is, in reality, virtually always an absolute duplication of the ultimate trial.

Further, it means a delay in the ultimate trial and duplication of costs for the prosecution, legal aid where applicable, and court time for witnesses attending, including the police. This amendment would allow essentially the same penalties, but by reducing the maximum time to five years less one day it would avoid the section 11 judge and jury right.

If they are to be effective, the application of the recommended penalties must be mandatory. If not, they may be plea bargained away by the crown attorneys and therefore any potential benefit would be forfeited. We're recommending we raise the maximum of the mandatory order of prohibition from three years to five years.

It's an unfortunate reality that there are a significant number of individuals who continue to drink and drive despite convictions for impaired driving. Currently, the maximum penalty by way of driving prohibition for an over 80 or impaired driving offence is three years. This grossly underestimates the need to keep the blatant repeat offender off the public highways and not wait for them to kill or maim before imposing lengthier driving prohibitions.

Some, although admittedly not all, of such high-risk offenders will be physically deterred or hindered from operating a motor vehicle with a criminal driving prohibition in place, which may therefore reduce the number of individuals committing such crimes.

Recommendation 3 is to amend section 255, the punishment section, to provide a tiered penalty scheme that reflects the level of impairment, tying it to the blood alcohol concentration. Statistics and common sense tell us that the higher an individual's blood alcohol content, the greater likelihood of that individual being involved in an accident. In cases where people died in accidents, 62% of the drivers had alcohol levels double the legal limit.

We give speeding tickets that reflect the speed a driver is going. We have separate offences and greater penalties that reflect the monetary value of stolen merchandise. Therefore, we think a penalty scheme that gives sanctions reflecting an individual's blood alcohol content level is appropriate.

We also ask that you consider amending section 255 to ensure the penalty for failure or refusing to provide a sample reflects the highest penalty in the scheme recommended above. The amendment will mean that penalties for refusing to provide a sample will have to reflect the highest penalty under the scheme, or else highly intoxicated individuals will simply choose not to provide a sample, knowing that the penalty would be lower.

We also call for recommendations in subsection 255(2), impaired driving causing bodily harm, to provide for an automatic minimum prison term of five years and not more than ten years if the offender has one or more convictions for an offence under section 253 or 254.

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Further, we recommend that subsection 255(3), impaired driving causing death, be amended to provide for an automatic minimum prison term of seven years and not more than fourteen years if the offender has one or more convictions for an offence under sections 253 or 254.

With these recommendations, we believe maximum and minimum penalties for repeat offenders who are convicted of impaired driving causing bodily harm or death are appropriate. We feel there is a difference between the first-time offender who is involved in an accident that results in someone's injury or death and the repeat offender who has already been through the system.

Keep in mind that often the only difference between an impaired driver who doesn't kill or injure someone is due to police intervention before he or she has the chance to do so, and the difference between causing injury and death is sometimes due more to chance and medical intervention than anything else.

We also recommend an amendment to subsection 259(4) to provide for stiffer penalties for those who drive while disqualified for conviction of an offence under sections 253 or 254. One of the effects of increased penalties for impaired driving may be that more people will simply drive while under suspension or prohibition; therefore, the penalties for driving while disqualified must be increased to make the option less attractive to people, because currently people are taking advantage of this deficiency. Current penalties are not deterring people effectively, and strong messages need to be sent that this behaviour is not acceptable.

As far as enforcement goes, there is perhaps no area of law enforcement that is more technical and burdensome than impaired driving provisions. Consider what it takes to have someone charged with impaired driving. The officer must have suspicion to request a roadside breath test, usually based on observations or the smell of alcohol. The officer administers an approved screening device, and if the individual refuses to give a sample, he or she is charged with the offence of failing to provide.

The third step, if the person fails the roadside device, is that the individual is then taken to the police station. The individual must be given a chance to call his or her lawyer. The approved breath analysis instrument is administered by a trained technician, in most cases a different person from the arresting officer. If the person refuses to take the breath analysis instrument test as required, he or she can be charged with an offence under subsection 254(5).

As a final step, if the person fails the approved breath analysis instrument test, they are charged.

The demand for a sample must be made within two hours of the time the individual was driving. The test must then be administered as soon as practicable. The Supreme Court ruled in R. v. Deruelle that the time limit can be expanded if the officer's belief was formed within the two-hour limit.

If the test cannot be performed within two hours, the results may still be used at trial, but the prosecution may have to call a toxicology expert to show what the accused's BAC was at the time of the offence. This may seem simple enough, but I would remind you that the necessary toxicology experts are strategically located, as are the labs, but in rural areas it's very difficult and adds a lot to the expense to get someone there to make a conviction if you've gone outside the two-hour timeframe, if you have to fly somebody in from Winnipeg, or Ottawa, or Toronto, as the case may be, to give that evidence on each trial or each appearance, and if there are remands, that person comes back again. It's very cumbersome.

The situation is made more complex when there's an accident and the individual is taken to hospital. If the individual has been taken to the hospital, the officer must attend at the hospital and demand that a blood sample be taken to determine the presence of alcohol. It may be difficult, because the officer's presence may be required at the accident.

Some individuals may ask to be taken to hospital for the sole purpose of attempting to avoid giving a sample. That's why we recommend an amendment to section 254 to provide a three-hour time limit for an officer to make the demand and use the results, particularly in rural locations as policed by the RCMP, the OPP, and the Sûreté.

Due to the problems described above, we have recommended expanding the current two-hour limit to three hours. Even with the extra time, it is not in the officer's interests to drag the process out. There is still the reasonable requirement that the officer do the test as soon as reasonably possible. An individual's blood alcohol content rate drops between 0.01% and 0.25% per hour after the two-hour limit. So in most cases, it's going down, which I guess is of benefit to that person. This recommendation will simply give the officer the extra time he or she needs to ensure the case is not lost due to unreasonable time constraints.

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We also recommend an amendment to the Criminal Code to allow police to demand a breath or blood sample from any driver involved in an accident causing serious harm or death. As you can appreciate, in a lot of situations where the accident has occurred, the officer arrives after the fact and does not have the time or the means to form the necessary grounds that would develop in most cases where you get the smell of alcohol, you observe the person's driving, and you make your demand based on that. Oftentimes the person at fault in the accident is injured as well, and we think there should be some ability to make that demand mandatory.

There are many accidents involving impaired driving that do not result in criminal charges, for some of the reasons mentioned above. We believe that in order to truly impact on impaired driving deaths and injuries we need to be much more diligent in expanding police powers to demand samples. This includes expanding the reasonable and probable grounds standard to include any serious accidents. It is our understanding that this is a process that's employed in Australia.

As far as an expansion of the testing technology is concerned, we recommend that the Standing Committee on Justice and Human Rights examine the latest technological advances with respect to mobile digital breath test units and, if found to be accurate, amend the Criminal Code accordingly. Given the problems described with administering two separate tests, enforcement would be easier if police only had to administer one test, performed at the roadside. Currently roadside tests only register pass, warn, or fail and they are not calibrated to give numeric readouts.

The technology may exist to ensure accurate, admissible testing devices to be used at the roadside. If such technology does exist, the Criminal Code should be amended to provide that this evidence be admissible in court.

Individuals would still maintain the right to consult with counsel, and therefore, if the Criminal Code list of approved devices is in fact amended, the committee will have to consider the individual's right to consult with an attorney. This may be a technological problem in remote areas, but I think that may be something that could be addressed through communications technology, to provide that secure communication to the attorney.

We also recommend that the standing committee examine the latest technology, including passive alcohol sensors, to determine if they could be used to assist police in their enforcement of impaired driving.

Various courts across Canada have upheld the constitutionality of random police spot checks. This allows police to set up roadblock-type conditions and stop cars without reasonable and probable grounds. Normally officers use subjective assessments to determine if an individual should be required to give a breath sample. This includes looking for bloodshot eyes, the smell of alcohol, etc. This could be described as a hit-and-miss method of enforcement, although such spot checks have contributed to the decline in impaired driving accidents.

Some American states have adopted the use of these passive alcohol sensors, which are devices that will detect alcohol in the air. The officer can simply put the device in the open window of the car and if it indicates the presence of alcohol, he or she will then be presumed to have reasonable suspicion that the individual has been drinking. Police welcome any technology and tools that will increase our ability to detect impaired drivers.

Regarding roadside sobriety tests, we recommend the amendment of section 254 by adding subsection 2(1) to read as follows:

2(1) Require that person to forthwith comply with testing in order to provide the peace officer with information respecting that person's physical impairment by alcohol or drug.

These amendments would give statutory sanction to roadside sobriety tests. Within the late 1980s various appellate courts disallowed the practice, deciding that the suspect was being detained and therefore should have had rights read to them under paragraph 10(b) of the charter. Failure to do that resulted in the court simply ignoring the evidence of impairment and suppressing admission of that evidence at trial. Statutory authorization for sobriety tests as proposed would allow this evidence to be obtained and admitted at trial.

It is our view that the greater volume of evidence available, the more fair, not only to the accused, but the more fair the trial will be.

We are confident as well that most criminal court judges familiar with drinking and driving would support this view and welcome the return of this illustrative evidence.

We view this as also likely resulting in a saving of trial time, as with the additional evidence available fewer matters will likely go to trial, thus saving the system and police valuable resources.

A refusal to perform a sobriety test or submit to a sobriety test without reasonable excuse should be treated the same as a refusal to provide a breath sample.

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We also recommend that under the issues dealing with treatment, repeal subsection 255(5) and replace it with provisions that require mandatory assessment and mandatory treatment if warranted. This treatment should complement, not replace, the sentence. Given the nature of the types of offences we are dealing with and the fact that alcohol consumption may be an indicator of a larger problem, we support the use of assessment and treatment programs in addition to penalties. We do not support automatic treatment given that many impaired drivers are not alcoholics and may use treatment as a way of avoiding punishment.

We also seek provincial and federal cooperation, and we recommend that the federal government work with the provincial governments to develop a national strategy to combat the impaired driving problem in Canada, including a review of the latest technology available and research to develop improved technology to assist police to detect impaired drivers.

The Canadian Police Association recognizes that the federal government can only do so much to battle the impaired driving epidemic that plagues the nation. The provinces also have a major role in this fight, and some provinces have enacted strong laws. When it comes to their safety, victims and the public simply do not care about jurisdictional lines, and they expect all levels of government to work together to develop a strategy to deal with impaired driving.

Previous recommendations referred to new technology that may exist, which Canadian police officers do not have access to. The research and development of new technology is important if the police are to increase their abilities to combat these types of offences. Therefore, we believe the federal-provincial governments should be examining the feasibility of that technology and its use in the Canadian experience. It is our contention that the savings in prosecution-related expenses, enforcement expenses, health care expenses, and the loss of human life, which is not measurable, would pay for the research and the use of new equipment. We offer one caveat, that the resources that may be used for research and the purchase of new equipment not be at the expense of taking officers off the street. The best and most effective technology in the world will be useless if there are not enough officers on the street to use it.

In addition to impaired driving, we want to briefly mention that we seek an amendment to section 249 of the Criminal Code to create the indictable offence that while operating a motor vehicle the operator fails to stop for a peace officer when directed to do so. We ask that it carry a maximum penalty of two years' imprisonment. We also seek to amend section 249 so that if an individual fails to stop for police and is impaired, there should be an additional penalty for this, with a maximum of five years less a day.

One of the other aspects of improved impaired driving legislation and increased sentences, as we have recommended, may be that more people refuse to stop for the police in order to do so. In that vein we recommend that a separate offence be created to make it a criminal offence to fail to stop for a police officer.

We also call for an amendment to section 553 to make it an absolute jurisdiction of a provincial court judge for impaired driving. Section 553 lists a series of offences over which the provincial court judge maintains absolute jurisdiction, whether the crown has proceeded by indictment or not.

Preliminary inquiries in many cases are expensive and they could be eliminated without compromising an accused person's right to a fair trial. Provincial courts are less formal and more efficient while at the same time providing fair trials. By putting these offences under the jurisdiction of the provincial courts, we will eliminate unnecessary preliminary hearings and get cases through the system faster, without compromising anyone's right to a fair trial.

It would of course be necessary to comply with paragraph 11(f) of the charter where the crown sought to invoke the expedited process. It is proposed to have a maximum penalty of five years less one day. In practice this will probably encompass 99% of all such charges suggested that are currently prosecuted before the courts. Sentences in excess of that are extremely rare. In any event, an alternative indictable procedure with elections for judge and jury or superior court alone should remain for those cases where the crown felt a period in excess of five years was appropriate.

To conclude, the cost of impaired driving cannot simply be measured by dollars, although the costs of trials, enforcement, health care, etc., is immense. The loss of life, the countless injuries, and the human suffering is immeasurable. We congratulate the committee for examining this issue with the hope of developing stronger laws, better enforcement methods, and improved technology to assist police in their ongoing struggle with impaired drivers. We've lost too many lives already, and we must do more to ensure we lose less next year and less the year after that and so on. We believe the recommendations we have made will help us do that.

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Now I will turn it over to President Grant Obst for some comments.

Mr. Grant Obst (President, Canadian Police Association): Thanks, Dale.

Mr. Chair, ladies and gentlemen of the committee, Dale has gone over some of the more technical aspects of our submission. I'd like to perhaps bring you a little bit more of the street perspective.

I'm the president of the Canadian Police Association, and as Mr. Kinnear mentioned, the Canadian Police Association represents approximately 30,000 front-line, rank-and-file police officers from across Canada. I'm also a constable with the Saskatoon police service and I've been a police officer in the province of Saskatchewan for 16 years now. The majority of my service has been in what we call the patrol section of the police service, which is the uniformed officer who drives the patrol car, and a large part of what I do on a full-time basis is answer calls for service within the city of Saskatoon and enforce sections of the Criminal Code that pertain to impaired driving.

I'm actually a substitute today. Originally, Sergeant Darryl Tottenham from the New Westminster police service, who's our vice-president from British Columbia, was to be here and testify before you. However, he is in the hospital with an ailment and couldn't make it.

I've spent the last 24 hours thinking about what I could say to you here that would make an impact on you with regard to some of the tragedies we as police officers see on a daily basis with regard to impaired driving.

Just this past Saturday night I was dispatched to an accident scene where I stood by while ambulance and fire paramedic personnel removed a young lady, a 16-year-old girl—actually, they didn't quite have to remove her because she was partly ejected from the vehicle, which was just a mangled mess of metal and glass wrapped around a tree. She, fortunately, was conscious and able to talk to us. She had a very badly broken leg. The driver of the vehicle was a 17-year-old friend of the lady we were trying to help out. She was taken to the police station and subsequently blew twice the legal limit, at 17 years of age.

The Friday night before that I was the first officer on the scene of an accident on the freeway in Saskatoon, and in that particular case the ambulance attendants didn't have to remove the body because there wasn't any life left in it. The driver, however, was taken in and subsequently tested, and unfortunately that young man now has to live with the fact that he killed his 30-year-old brother, who was the passenger in the vehicle.

That's just in the past week and I'm one police officer. There are probably 50,000 of us across the country who are going through this on a daily basis, unfortunately. As Dale mentioned, 1,400 people are killed annually due to impaired driving. In 1997, Statistics Canada tells us that 74,000 people were injured as a result of impaired driving.

Generally speaking, I don't think any of my colleagues would argue that the current provisions or the current penalties in the Criminal Code adequately address the severity of this situation, and the challenge for you people is I think overwhelming.

It's not only an enforcement question; it's an education question. I don't know how many times I've had an individual in the observation room after they've been arrested for impaired driving, waiting to take them in for a breath test, and they use the phrase—it's very common—“Officer, I'm not a criminal; I'm not a bank robber.”

People out there don't seem to understand, and it hasn't got across that impaired driving is a criminal offence and an extremely serious criminal offence. It's somehow still, to a large degree, socially acceptable, and I don't think we're getting the message across. We've done lots, and I have to compliment the government and many other agencies, such as the Canadian Broadcasting Corporation and the Canadian Association of Broadcasters. There are public safety messages on television now, and we've seen an increase in that over the past number of years. That certainly helps, but if you were to compare how many 30-second clips of advertisements our children are bombarded with, with regard to beer commercials or liquor commercials, and compare that to how many commercials we see regarding impaired driving and the result of impaired driving, you know it wouldn't fare very well.

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I think you have to seriously consider increasing the penalties to demonstrate to society that this particular activity is not acceptable. I've had experience with many repeat offenders and that's even more disturbing, and I'm not talking about just the second and third time. It's not uncommon to have somebody in that observation room who's there for the fifth and sixth time. If you check their criminal record, you'll see they probably have never done more than 90 days in jail for any particular offence.

So again, I implore you—you know it's not even that the penalties aren't there. They are there. I don't think they're being used properly. I think judges, quite frankly—and I mean no disrespect with my remarks because it happens to police officers as well. When you are faced with a recurring incident over and over and over again, you become somewhat complacent. It's just another everyday occasion, and I think that's happening with impaired driving. I think we're starting to forget, at some levels, how tragic a lot of results of this type of activity can be.

I don't want to minimize other criminal offences here, but if I go to a domestic dispute where there's a spousal conflict and as a result of the fight one of the two parties grabs a readily available butcher knife or something and stabs the other, we tend to look upon that as a serious offence. It's a violent act. It concerns a weapon. A lot of times penalties reflect the seriousness of that offence. But you know, in reality, it's a spontaneous reaction. You've got people who get into an argument, grab a weapon that's close by, and use it. There's no planning in a lot of cases. It's just a spontaneous reaction.

Again, I'm not minimizing that, but when you think about impaired driving, I think in almost all the cases that my colleagues and I investigate, there's a conscious decision to take your motor vehicle from your driveway, drive it to the bar with $60 or $70 in your pocket, with the intention of being at that bar from 8 p.m. until closing, and then it's a conscious decision to get back in that car and drive it home—or to drive to the New Year's Eve party, or to any party for that matter, or to any function where liquor is being served. People make that decision. They may not plan to drink as much as they do, but they make the decision to bring that car to the place where the liquor is going to be consumed. To me, there's some premeditation there, I think to a high degree, much more than that individual who grabbed the knife and used it as a weapon in a spontaneous manner. And I think you have to consider that when talking about how the penalties should reflect what the individual is doing.

Again, regarding things like alcohol, I know one of your issues for consideration is alcohol counselling and drive without impairment courses. Let me just tell you that in Saskatchewan—and I'm not sure about other provinces, but my experience obviously is with Saskatchewan—we do a DWI course, a drive without impairment course, where police officers actually make appearances and discuss this issue with offenders. We use it as an incentive to reduce suspension. If an individual is charged with impaired driving, first offence, they face a year-long suspension of their driving privileges, and if they attend the drive without impairment course, which is usually a weekend-long course, they can reduce their suspension from one year to six months.

I don't think the drive without impairment course should be an incentive to reduce suspension. I think it should be mandatory. You should have to attend the drive without impairment course if you're picked up for impaired driving. There shouldn't be any ifs, ands, or buts about it. Obviously, if someone is facing their second or subsequent offence, there's a need for alcohol counselling, and there's an educational component there as well.

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There's one other aspect that has always struck me as strange. We obviously compile criminal records on people, and your lawyers would probably advise you on this much better than I, but quite often there are all kinds of red flags thrown up about an individual's inability to cope with alcohol. If we have an individual who's charged with impaired driving and that individual also has a couple of convictions for assault or assault causing bodily harm, if you look back into those assaults and assaults causing bodily harm, you'll probably find that that individual was under the influence of alcohol when those offences occurred. There should be red flags going up all over the place that we have to get some mandatory alcohol counselling for this individual. Even if it is just their first offence of impaired driving, let's do something about it before I have to stand by while the fire paramedics and ambulance attendants remove the body, or don't remove the body in some cases.

One of your considerations is whether or not we should lower the limit from .08. I think if you were to speak to police officers—I know you are speaking with police officers—and even the general public, obviously some sort of scientific research has gone into the fact that .08 is the level where your ability to drive a motor vehicle becomes impaired. But the problem with that tolerance, the problem with the zero to the .08, is that it allows for people to make that conscious decision to take that car to the bar, because they know they have that level of tolerance there. Quite often, they probably go with the intention of having only one or two drinks, but once you have the one or two drinks, the funny thing about alcohol is that it removes some of the inhibitions in you, and then that additional drink happens and one more drink happens and, okay, I've been here for three hours, I can handle one more. I think that's where you run into some big problems. If there was a reason to reduce that .08, I think that might be one of the considerations you would want to make.

Perhaps the individual's level of impairment isn't as substantial below the .08, obviously, but it's what that .08 tolerance leads to. It leads to individuals not being able to think clearly, and that's where we run into big problems.

Mr. Kinnear talked about people failing to stop for the police, and I think that's a very real concern for the police community. We've seen examples of this in Saskatchewan. We recently implemented a situation where if people have unpaid traffic fines, they can't renew their driver's licence. In some cases people have cleared up their fines, but in a lot of cases people just drive without their driver's licence. That's their answer.

So if we increase the penalties for impaired driving and an individual is out there driving and the police show up in their rearview mirror, I think we may see a higher incidence of people attempting to evade being stopped. That's why I hope you'll be able to grasp why we're suggesting that failing to stop for the police has to be addressed as well, and not only that, but driving while prohibited needs to be addressed. I'm not talking about driving while prohibited while under the influence; I'm talking about just driving while prohibited, because that's what people will do if they face longer driving prohibitions.

With regard to a lifetime prohibition, I think the police officers across this country would definitely support that. I'm not sure at what point that would be implemented, but I can tell you that not that long ago I had a guy in that same observation room that I've referred to, and upon checking his criminal record, it was his ninth time—he wasn't that old; I think he was about 37 years old—and he had a driver's licence. I don't know how many convictions you can accumulate, from the time you turn 16 years of age and get a driver's licence until you're 37 years of age, and still have a driver's licence. So I think you definitely have to pay some attention to the length of the driving prohibition.

You're also probably aware of a number of provincial initiatives that have occurred across the country. I would hope that perhaps the federal government or a federal committee could facilitate better discussion between the provinces so that everybody knows what page everybody's on.

For instance, again in Saskatchewan, we now have the ability, in some cases, to impound a vehicle. I know a lot of people ask what good that is; the individual is just going to get another vehicle. That's true. This particular issue is not one to which there is any pat answer. It's an issue that has to be attacked on many fronts. You may call it a band-aid solution and I may call it a band-aid solution too, but if at least it deters that individual from driving on a few more occasions if his car's in the pound, then it helps us out.

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Those are the kinds of things that I think put a little bit of teeth in. We need to make people think twice before they take that car to the bar or to the social function or wherever they're taking the car. Currently I don't think they are. I haven't seen a major reduction in the number of vehicles that have pulled up to drinking establishments in Saskatoon. I have seen a little bit of an increase in the number of people who use designated drivers, but not the same amount as there are cars in that parking lot.

The other thing that always struck me as funny is if we have the time, at 2 a.m. when closing time happens, to put a patrol car in the middle of the parking lot at the bar, you would be amazed at how many cars end up staying there all night versus when we don't have the time to put a patrol car there. That has to tell you something.

I hope many of you have questions from the street perspective, and if you do I would be more than happy to answer them once my colleagues are done here. I think you've heard the technical side. I think you've heard the street side. I wish I could bring pictures. I wish I could bring videos to try to put a face on this crime for you.

Dale, mentioned that there are not very many of us who aren't at some point in time affected by impaired driving. I would hope that that's not the case in this room. However, if it is, you will have a lot better idea of what I'm talking about here. I can tell you the mom of that 31-year-old last Saturday night would probably have some pretty strong words for you, even though it was her son who was driving the truck. There is a face to this crime and we need to recognize that, and we need to address it with the seriousness it deserves.

The Chair: Thank you, gentlemen, for your presentation.

Can we hear from the Association of Chiefs of Police now, please.

Deputy Commissioner Maurice Pilon (Canadian Association of Chiefs of Police): Thank you, Mr. Chairman. To the committee, merci.

[Translation]

We are very pleased to be appearing before your committee this morning.

The Canadian Association of Chiefs of Police is an organization made up of upper echelon members of the Canadian police apparatus. Our organization, that was created in the early 1900s, today comprises some 800 members.

[English]

Within the Canadian Association of Chiefs of Police structure is a traffic committee. This is a committee that I'm currently chairing. Deputy commissioner Berlinquette is the vice-chair. Mr. Grant Smith is the technical adviser to our committee from Transport Canada.

Mr. Chairman, significant gains have been realized in road safety in Canada over the past 20 years. We have seen traffic deaths decrease annually from almost 6,000 in 1978 to 3,064 in 1997. Injuries resulting from traffic collisions have also reduced during this period, from an excess of 250,000 in 1979 to 220,000 in 1997. These achievements have been realized during a period when vehicle registrations increased by almost five million and the number of licensed drivers increased by almost seven million. Although one can point to several key factors that have contributed to these successes, it is no coincidence that as seat-belt-wearing rates have increased, highway deaths have decreased. Over the past 12 years we have seen seat belt compliance increase by over 30% to its current level of 92% for drivers. Not coincidentally, traffic deaths have decreased by 30% during the same period. Unfortunately, similar gains have not been realized in curbing the incidence of drinking and driving on our highways. One out of every three drivers killed has a blood alcohol concentration over the legal limit. There's no accurate count of the number of innocent lives the drinking driver continues to take.

In the quest of obtaining our goal of making Canada's roads the safest in the world, the traffic committee of the Canadian Association of Chiefs of Police embarked on a project to examine the issues of impaired driving in Canada. Statistics indicated that the drinking driver remained as the key contributor to highway carnage. It was also noted that impaired driving enforcement by Canada's police community had declined steadily between the years of 1986 and 1996. In 1997 reports from the Canadian Centre for Justice Statistics indicated that impaired driving charges per 100,000 population declined by 47% during that 10-year period. In addition, there was anecdotal evidence indicating that front-line officers were experiencing difficulties with the enforcement of drinking and driving legislation.

• 1020

It was determined that the most appropriate means of evaluating the current status of impaired driving enforcement was to conduct a survey of Canada's front-line police officers with the goal of identifying those issues that presented barriers to effective and efficient detection and prosecution.

In this regard, Transport Canada, one of our key road safety partners, was approached and agreed to facilitate the development and administration of a survey. Following a substantial period of research and development, a survey instrument was finalized.

In order to capture a representative sample of Canada's police community, 2,311 questionnaires were mailed to officers in all provinces and territories in the spring of 1997. A total of 1,629 officers responded to the survey, yielding a response rate of 70.5%, which is a highly acceptable return rate for a mail survey.

The officers surveyed represented a cross-section of front-line officers from federal, provincial, and municipal services. Those surveyed include generalist officers, officers dedicated to the traffic function, and breath-testing technicians.

The survey, which has been distributed to members of this committee, essentially captured what I would suggest is, for the most part, a majority of Canadian Police Association members. So you will see similarities in the results of this survey to what has just been presented by our colleagues, and you will see some smaller issues over which we might be a little bit at odds. Nevertheless, I think it's significant to note that this group is the one providing information to the survey.

I would now like to provide highlights of our survey, which examined the perceptions and attitudes of these front-line officers about the enforcement of impaired driving laws in Canada. I must emphasize that this survey reflects the perceptions of front-line police officers relative to the issue. Although they are only perceptions, one must recognize that any legislative-based strategy geared to addressing unacceptable social behaviour must be manageable and enforceable by those who are mandated to effect that function.

The survey respondents were asked to provide a priority ranking from a list of 15 offences. The respondents ranked impaired driving fifth in priority behind murder, sexual assault, kidnapping, and robbery.

It is interesting to note that this question was reprinted from a 1981 survey conducted in Ontario by Dr. Evelyn Vingilis, then of the Addiction Research Foundation. At that time, respondents ranked drinking and driving eighth in priority from a list of exact options.

The respondents were asked to identify the source and the number of impaired driving charges. They indicated that 21% of their charges resulted from traffic collisions, 47% resulted from their observations of erratic driving behaviour, a further 11% from spot checks, and 15% were the result of public complaints. The officers surveyed laid an average of 7.5 impaired driving charges per year.

The officers were then asked how often they had personally issued a short-term provincial licence suspension rather than charge an impaired driver under the Criminal Code. Of the respondents, 17.5% indicated they sometimes or frequently utilized short-term licence suspensions instead of laying the Criminal Code charges.

The respondents were asked to indicate whether they used other forms of discretion when dealing with impaired drivers. Twenty-eight percent indicated they sometimes or frequently utilized other forms of discretion instead of laying an impaired driving charge. The most common discretionary actions taken were arranging a ride for the impaired driver or permitting a sober passenger to drive.

It is clear that discretion in dealing with impaired drivers is being utilized by front-line police officers. I'd like you now to consider why this discretion is being used.

Thirty-eight percent of the respondents indicated that impaired driving charges take too much time to process. Additionally, 36% indicated that police resources are inadequate to deal with the impaired driver. Relative to the processing time for impaired drivers, respondents indicated on average it takes two hours and 48 minutes to process an impaired driving charge. Of this time, approximately 57 minutes is expended transporting the accused to a breath-testing location and conducting the required breath tests.

The other major consumer of time involves completing required forms and paperwork, which on average takes 54 minutes. An additional 20 minutes is expended waiting for the accused to speak with an attorney or a legal aid.

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One must realize that in most cases two officers are involved in the processing of an impaired driver. The arresting officer and a qualified breath technician are involved. I know you've heard a bit about this before. In effect, the police response capability for other calls for service is greatly reduced by almost three hours for each impaired driver arrested.

As previously indicated, the requirement to complete forms and reports consumes a significant amount of front-line officer time. On average, police officers are required to complete 8.2 forms for each impaired driver. Included in this total are crown briefs, notices that the crown will be seeking an increased penalty for repeat offenders, a certificate from the breath test technician and notice that the certificate will be used at trial, a form of undertaking requiring the accused to appear in court, and a police occurrence form, just to name a few. Of officers surveyed, 31% indicated that cases are sometimes or frequently dismissed in court due to the incorrect completion of forms, while 38% indicated that the form process could be streamlined.

I would now like to address the perceptions of the front-line officers relative to the prosecution of impaired drivers. Respondents indicated that in the 12 months prior to the completion of this survey, 62% of their impaired driving charges resulted in a plea of guilty to the charge. Another 20% of accused persons pled not guilty to the charge and elected trial. The remainder opted to plead guilty to a lesser Criminal Code or provincial offence in lieu of the impaired driving charge.

Respondents indicated that where an impaired driving case goes to trial, a conviction is registered 83% of the time, while the acquittal rate for accused persons is only 9.3%, mainly due to legal technicalities. The surveyed candidates were questioned on the use of plea bargaining within their court jurisdictions, and 65% indicated that plea bargaining occurs sometimes or frequently, and 59% of the respondents perceived that plea bargaining occurred in order to speed up the judicial process.

The respondents indicated that in the case of a guilty plea by the accused, the timeframe from date of violation to final court disposition was on average 14.8 weeks. In the case of a not guilty plea, this period was extended to 35 weeks. The average impaired driving trial lasts 4.4 hours, with a police officer on the witness stand for 33 minutes.

It was perceived by 29% of the respondents that judges give more credibility to expert defence witnesses than to police witnesses, while 11% felt that police witnesses were viewed with higher credibility, and 42% believed that both were viewed with equal credibility.

In further examining the judicial process, only 45% of respondents felt that crown attorneys were adequately prepared for cases. This is no reflection on the crown attorneys because 80% indicated that this was due to the fact that crown attorneys have too many cases to prosecute.

The issue of sanctions was also addressed by the survey, and 62% of those surveyed felt that current penalties are too lenient, although provincial administrative sanctions, such as administrative licence suspensions, impoundment of motor vehicles, and compulsory assessment and rehabilitation for first offenders, were viewed as effective countermeasures. Only 6% of the police respondents supported a complete decriminalization.

Lastly, the survey examined the knowledge base of our front-line police officers relative to the contribution of alcohol to highway deaths. The officers were asked, what percentage of Canadian drivers who were killed in traffic collisions had a blood alcohol content over 80 milligrams? Over two-thirds of the respondents indicated that they did not know, while only 17% were able to provide a correct response.

I would suggest that the results of the survey are somewhat revealing. It may be appropriate to step back and review why legislation exists.

First, legislation exists to ensure community wellness and to protect our citizens from unacceptable, dangerous, or life-threatening behaviour. Laws are created to provide a deterrent to those who may consider engaging in such behaviour and to deal with those who do engage in such behaviour. In order for legislation to provide an effective deterrent, there must be a perceived risk of apprehension and conviction, with appropriate consequences to deter such behaviour. In order for legislation to deal effectively with those who threaten community wellness, our system must provide swift and sure adjudication, with sanctions in place that will deter recidivism.

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We must also consider that if legislation is not enforceable or manageable by the front line of policing, the system will fail. The legislative process is initiated by front-line police officers laying the charge. As barriers are placed in the path of front-line officers, the ability to initiate the process and thereby provide our citizens with the protection they require is threatened.

Canada's police community is committed to delivering services within a community-based service delivery model. Within such a model, priorities are established within a police-community partnership. Strategies are also developed within this partnership in order to address those priority issues that threaten the safety, security, and general wellness of our communities. Canada's front-line police officers, through their community interactions, are well aware that impaired driving is viewed by our citizens as a major threat to this country's wellness. This awareness was certainly confirmed by a recently released survey from the Traffic Injury Research Foundation, which indicates that 88% of Canadians think drinking and driving is an extremely or very serious problem today and is of greater concern to them than many other prominent social issues, such as taxes or the health care system.

The current drinking and driving laws were entrenched in legislation in 1969. Since that time, the legal system has become much more complicated as it pertains to the impaired driver. The accumulation of case law over the past thirty years and the passage of the Charter of Rights and Freedoms in 1982 have significantly impacted on the legislation's ability to guarantee community wellness in 1999.

The policing environment has also changed significantly. Our demands for service have increased significantly. Crime has become more sophisticated. The volume and complexity of investigations have increased. In order to meet the demands of our communities, the process of dealing with the impaired driver must become more efficient and streamlined, both in legal and police administrative processes.

The Canadian Association of Chiefs of Police is moving forward to develop proposals resulting from this survey. First, we're looking at issues surrounding the hard-core drinking driver, with the goal of presenting proposals that will be effective in curbing recidivism within this group. We'll be examining issues surrounding a provision for evidentiary breath testing at the roadside.

Although our investigations in this area are preliminary, I understand that testing is being utilized in some jurisdictions. Such a process could lead to a significantly shorter processing time for impaired drivers. Roadside evidentiary breath testing can work and can provide officers with the ability to deal with impaired drivers in a more timely and manageable manner. According to our survey, this will lead to an increased level of police enforcement. We will also be considering methods of streamlining the reporting process, with the goal of reducing the time required to complete this function. The use of videotaping at the roadside will also be considered as a means of gathering further evidence of impairment.

The Canadian Association of Chiefs of Police has also commenced work with our national partners to raise the level of awareness of Canada's front-line policing community to traffic safety issues. In this regard, we're moving forward to develop a best practices database for traffic safety strategies, and we are exploring methods of effectively and efficiently communicating risk management information. We are committed to presenting our proposals to the membership of the Canadian Association of Chiefs of Police for endorsement in August of this year. Essentially, it's a process that is ongoing.

I will address briefly some of the pertinent issues identified in your committee's discussion paper. In relation to the hard-core drinking driver, it is obvious that the behaviour of this group of Canadians is not influenced by public awareness and education. It is not deterred by the threat of prosecution either. The current sanctions are not sufficient to prevent this recidivism. In-depth research is required to identify means that will be effective in dealing with this unique high-risk group.

Respondents to our survey were asked to comment on their agreement with lowering the blood alcohol concentration from 80 to 50 milligrams. Only 36% of the respondents supported such a move, and I sense that such a proposal was viewed as tinkering with the current legislative structure. It did not address the ability to enforce and manage the overall legislative package.

There appears to be some question as to whether or not the period for legal presumption relative to breath testing should be extended beyond the current two-hour limit. It is clear from our survey that a need exists to streamline the arrest process for impaired drivers and that the front-line policing community is finding current demands unmanageable. Although there may be valid reasons for proposing the lengthening of the presumption period, I suggest that the proposed solution may provide a greater threat to the system. In order for the police to initiate the process by laying a charge, the process must be streamlined and time demands must be reduced.

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Over the upcoming period of time, you'll be hearing presentations from several groups interested in making our roads safer. In your deliberations, I encourage you to consider that any legislation you may consider be manageable and enforceable. Canada's police community wants safer highways. We want to provide our communities with an increased sense of safety and security within their commuting environment. Without the appropriate tools, our ability to impact on our communities' needs will be threatened.

[Translation]

Thank you for your attention. We are anxious to become partners and to contribute to making Canadian roadways the safest in the world.

[English]

Thank you.

The Chair: Thank you, Chief Pilon.

Is there anyone else from the association? Mr. Cutler, we'll move on to you now.

Mr. Roger F. Cutler (Crown Counsel, Criminal Justice Branch, Ministry of Attorney General for British Columbia): Thank you, Mr. Chair.

I'm crown counsel with the Ministry of Attorney General for British Columbia, and I'd like to thank you for the opportunity to address the committee this morning.

One of my responsibilities as crown counsel is to oversee driving offences, and impaired driving offences in particular, in British Columbia. I've appeared before you this morning with the intention to urge this committee to recommend amendments to the Criminal Code, thus providing the enforcement community with the ability to investigate and eventually prosecute drug-impaired drivers. I have provided a discussion paper with my submissions to the committee. I will be summarizing that paper in my presentation this morning. Obviously, I am also prepared to answer any specific questions with respect to reference to the matters dealt with in that paper.

I should say at the outset that section 253 of the Criminal Code presently prohibits drug-impaired driving, similar to alcohol-impaired driving. However, the Criminal Code fails to provide the enforcement officers with the ability to investigate drug-impaired driving to the same extent that they're able to investigate alcohol-impaired driving—and you've heard this morning from the members of the enforcement community on the steps they go through in investigating alcohol-impaired driving.

As I said, the Criminal Code presently does not permit the officers to take any steps towards investigating drug-impaired driving. The submissions that I make this morning are founded on three premises. Firstly, drug-impaired driving is a serious problem on our highways, causing both serious injuries and fatalities, similar to alcohol-impaired driving. Secondly, through recent developments in investigative techniques, officers now have the ability to detect and assess drug-impaired drivers through what is is known as the drug recognition evaluation program. This program was developed in the United States, but has since spread like wildfire in both the U.S. and Europe. It's not yet in Canada, although attempts are being made in British Columbia without supporting legislation. The third premise is what I said at the outset, that notwithstanding the serious problem and the ability to combat that problem, the Criminal Code does not give the enforcement community the ability to investigate these matters.

Keep in mind that drugs in our society and the ingestion of same have exploded over the last twenty years. Obviously, that is carried over into driving and drug-impaired driving, yet the Criminal Code has failed to keep pace with that development. Presently, an individual guilty of drug-impaired driving is able to avoid detection and prosecution even though he may be confronted by an officer who believes the individual is impaired by drugs. The officer is handcuffed. He cannot do anything to enforce this Criminal Code provision. As I said, while the code presently provides extensive powers and procedures to investigate alcohol-impaired driving—more specifically, I'm referring to sections 254 and 258 of the Criminal Code—the code provides nothing in the way of powers or authorities for the officers to investigate drug-impaired driving.

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With the advent of the DRE, it has become extremely frustrating for the trained officers to know that they have an individual in front of them who is impaired by drugs and driving and has committed a criminal offence, yet that officer can do nothing to establish the offence or gather evidence in that respect. It's submitted that the police community needs the following four amendments to the Criminal Code to assist them in combating drug-impaired driving. Any one of the four would be of assistance. All four would be of great assistance in fighting this offence.

First, the officer needs the ability to detain a suspect for further investigation where he believes that suspect is impaired by drugs. This is similar to alcohol impairment, where the officer has the ability to make a breathalyzer demand and take the individual back to the detachment. The officer presently does not have that authority with respect to drug-impaired driving.

Second, the officer needs the ability to request a saliva sample at the roadside to confirm his suspicion of drug impairment. Again, this is similar to the approved screening device provision used for the alcohol-impaired driving that is set out in section 254 of the code, in that when an officer has a mere suspicion he can elevate that suspicion to reasonable and probable grounds by asking the individual at the roadside for a breath sample into an approved screening device. Upon failing that, the suspect is then subject to a demand to attend at the detachment and provide a breath sample, which would ultimately be used in a prosecution assuming failure of that test.

Again, such a situation does not arise in drug-impaired driving investigations. The saliva sample is simply a matter of providing saliva to the officer who would in a five-minute test be able to determine that the individual has drugs in his system. At that point, the officer would then be able to continue on a drug-impaired investigation.

This leads to the third recommendation, and it is that where the officer believes the individual is impaired by drugs, he would have the authority to perform a DRE evaluation. A DRE evaluation is set out in some detail in the written submissions. It simply involves a series of tests, including sobriety tests, physical observations of the suspect, and interviews to determine if the individual is impaired by drugs. It also allows the officer, who has been sufficiently trained, to assess what kind of drug the suspect may be impaired by.

Presently, the officer has no authority to ask the individual to engage or participate in that sort of evaluation. It's not dissimilar to what was mentioned earlier this morning with respect to sobriety tests at the roadside. Presently, officers do not have that authority. So although an individual may be glaringly impaired to an officer, there's little he can do except ask and plead with the individual to participate in these evaluations, and the individual will certainly not volunteer that. So the code needs to compel the individual to participate in that sort of evaluation.

Finally, the officers need to have the ability, when they believe an individual is impaired by drugs, to request that a blood or urine sample be provided. Again, this is similar to what is provided in the code for alcohol impairment. If the officer believes that the individual is impaired by alcohol and a breathalyzer sample is simply not available, whether due to physical infirmity or because the breathalyzer instrument is unavailable, the officer may demand a blood sample or a urine sample. Again—this is a broken record because it appears over and over again—the Criminal Code does not provide the enforcement community with the ability to request a blood or urine sample when they believe there's drug impairment.

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All four of these recommendations may be assisted under the umbrella provision of what has been called “the implied consent principle”, which exists in the United States and in Europe, but not in Canada.

The implied consent principle, simply put, accepts that when an individual engages in a dangerous activity to the public, such as driving, then by merely deciding that individual is going to drive he has given his consent to participate in this sort of testing where the officer believes there is drug impairment. The same principle should apply to alcohol impairment as well, so that when an individual gets behind the wheel, he has said “If an officer believes I am impaired by drug or alcohol, I have consented to participate in these tests, at risk of of a penalty if refusing.” As I said, this has been adopted in the United States with great success.

Such a provision in the Criminal Code would enhance the enforcement of both alcohol and drug-impaired driving and can't be underestimated, in that it takes away from the individual this right or opportunity to say “Get from me what you can, but I am not volunteering anything.” I think that sort of mentality, which unfortunately permeates the investigations of impaired driving, has to change. As we've heard from the statistics, the fatalities and the damage done to our society by individuals who are impaired drivers, who simply refuse to recognize the danger of getting behind the wheel while impaired, has to stop.

Beyond the general provision of implied consent, again I would urge this committee to consider the recommended four amendments addressing impaired driving by drugs specifically. Obviously, refusal to participate in any of these requests would need to be an offence in order to compel the individual to participate.

These recommended amendments would allow the enforcement community to gather evidence and place it before the court and ultimately detect and deter impaired driving.

Specifically—and I'll deal with each of these issues briefly, because I realize we are short on time—as I indicated earlier, the saliva roadside test is a non-intrusive test in which the suspect would simply provide saliva on a piece of paper, which then through colour changes indicates to the officer the existence of a drug in the individual's system.

With respect to the drug recognition evaluation, it is a 12-step process, which as I indicated involves sobriety tests and physical observation of the suspect. This takes approximately 45 minutes and needs to be done back at the detachment.

Finally, the sample of blood or urine would be obtained at the detachment—if it's urine. If it's blood, it would be necessary to go to the hospital, and that would be sent off to a lab, with results returning in approximately two to three weeks. Again, it's a process that is allowed and permitted with respect to alcohol-impaired driving, but not drug.

In summation, I simply submit that when one looks at the Criminal Code and the efforts that have been made, and successfully to a certain extent, to combat alcohol-impaired driving, it is astonishing that the code has absolutely nothing to assist the enforcement community to deal with drug-impaired driving. The irony of this is that the code nonetheless recognizes drug-impaired driving as an offence, but leaves the enforcement community with no way of enforcing it. I would hope that these submissions have at least elucidated this committee with respect to the issue, and I would hope that from this we can push forward with allowing the enforcement community to deal with this very serious problem on our highways. And again I thank the committee for the opportunity to address it. Thank you.

The Chair: Thank you, Mr. Cutler.

At this time, we will have questioning from various members of the committee. I'm going to have seven-minute rounds, and I'm going to have to hold you to it in view of the time constraints.

Mr. Harris, you're on.

Mr. Dick Harris (Prince George—Bulkley Valley, Ref.): All right. Thank you, Mr. Chairman, and thank you, gentlemen, for your excellent presentations.

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As I listened to your oral presentations and read your material, one thing that struck me is, why weren't these proposals already in force? What's taking so long? I assume you have lobbied the government for these changes prior to this—maybe I'm wrong; you can correct me—and if you have, what arguments has the justice department put forward to reason why we don't have these provisions in place at the present time? Why are we going through this process to try to get them done when in my opinion they should have been done by now?

I'll open that question to anyone.

Mr. Dale Kinnear: I would say it was a matter of plugging away at it; what you don't get the first time around, you come back at again. I suggest it was along the lines of what Deputy Commissioner Pilon touched on, some of the charter issues that have come up in the last number of years. That currently comes up when these types of changes are recommended. I would say that probably played a big factor. Then, whether it be political will...the influence hasn't been there to bring it about.

I would submit that if we don't achieve some of them here today, we'll be back the next time it's called.

D/Commr Maurice Pilon: If I may add, sir, with respect to our survey, we are going through a process right at the moment to further flush out some of the issues. We are looking forward to a time, probably later this summer, where we're able to have concrete proposals, if not with this body, hopefully some other government body where we can make those appropriate representations at that time.

We feel that some of the issues definitely have merit. That's why we're appearing here today. While somewhat premature in terms of our preparation, we think the issues need at least to be discussed.

Mr. Roger Cutler: I should say with respect to the drug-impaired driving that I'm not aware of these sorts of submissions coming before this committee or any parliamentary committee up until now. Much of it is due to recent developments in both the investigative techniques...which are simply break-through techniques, which have left much of the enforcement community, and the scientific community for that matter, astounded by the ability of the officer to assess accurately a suspected drug-impaired driver.

However, having said that, the statistics have been out there for some time that drug-impaired driving is a serious problem on the highways in Canada. I would think what has happened is that for many years we've asked, how do we address it? There isn't the breathalyzer instrument, which in itself was a wonderful creation many decades ago. But we now have the ability, and as I said, that's where the frustration comes from, having the ability to deal with the problem but not having the supporting legislation to permit one to do that.

Mr. Dick Harris: Thank you.

I think all of you said that any changes have to be manageable and enforceable. I appreciate that comment, because you are referring, of course, to having the resources and the manpower and the womanpower to do the job, even if the legislation were put in. That's something that really has to be considered as we consider changes to the legislation. It's fine to just change the legislation and make it all tougher, but there have to be more resources to make it enforceable and manageable.

One statistic I read recently—and this probably will give us an idea of the magnitude of the offences of impaired driving—was that, if I remember correctly, for every person who is charged with impaired driving, there have been approximately 2,000 offences. Basically, for every 2,000 people who are out there driving impaired, either through alcohol or drugs, only one will get caught. If you start to do the math, you can see it's a huge problem.

I really appreciate the fact that this committee is meeting to discuss this very important issue, plus the submissions you have given.

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Mr. Kinnear, for personal reasons I like the minimum sentence recommendation you put forward regarding impaired drivers who cause death. A couple of years ago when I put forward a private member's bill calling for a minimum sentence of seven years for anyone causing death by impaired driving, the government argued that we couldn't do that because it would throw all the other sentences out of whack. My argument to that was we're not trying to fix the whole justice system, we're just trying to stop people from killing people on the highways. Can you add any type of rationale to that minimum sentence recommendation?

Mr. Dale Kinnear: I view it purely as a deterrent factor. If such a change were to be put into the code, I suggest that the news of that would travel very fast. It gets out to the impaired drivers, the people who do it regularly, and even the people who don't. Just a couple of years ago in Ontario when they took their first run at trying to suspend the licence of the impaired driver from the time they were caught at the roadside until such time as they appeared in court, that sent a ripple through the bar community—and I don't mean the lawyers, I mean the drinking bars—as had never happened before. Now, it didn't last very long.

I would suggest that had it done so, it would have made a big difference. People know that it's not tolerated any more, as the president said earlier. It definitely makes it socially unacceptable if you're going to jail for seven years. We feel that's the type of deterrent that's required. It sends a message out. When you see someone get little or no jail sentence after someone has been killed, how do you explain that to victims? How do families deal with that? How do they accept that after a loved one has been killed? So it's purely deterrence.

The Chair: Thank you, Mr. Harris.

M. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): I read the brief that you tabled and I congratulate you for it. It is very well documented. I missed Mr. Dale Kinnear's presentation, but Mr. Brien tells me that it was excellent.

I would like to ask you if, as a labour analyst, you believe it is true that there are more and more cases of drivers failing to remain at the scene of an accident.

[English]

Mr. Dale Kinnear: I think there has been an increase in charges for failing to remain at the scene of an accident. Whether this can be attributed specifically to impaired drivers or people who are driving under suspension is difficult to tell because in many cases the person is gone. You simply do not catch up to them. I believe there is a slight increase in that offence, and that would indicate that if they put their car in the ditch, they flee, and they don't come back to the scene of the accident. So as far as the so-called high-speed chase or running from police is concerned, I would say that probably more of those involved impaired driving as well.

[Translation]

Mr. Michel Bellehumeur: We are told that drivers leave the scene of an accident because they fear heavy penalties for impaired driving. If we make the penalties heavier still, will the number of cases of failing to remain at the scene of an accident not go up even more?

[English]

Mr. Dale Kinnear: There's a cause and effect to it, and I think it's possible it could turn out that way. I think it's still a necessary measure to take as a deterrent. To us it just makes good sense. As far as people fleeing is concerned, in a lot of those cases they don't want to get caught for anything. It's not just because there's an increased penalty for impaired driving. They don't want to get caught by the police. Some of them arise out of just traffic stops. So I suppose there could be a slight increase in that. But I think it gives the necessary powers to the courts, if you will, to punish the ones who are caught. As to whether or not it's going to make for more high-speed chases, I'm not sure, but I think it may be worth the risk.

• 1100

[Translation]

Mr. Michel Bellehumeur: My other question is for Crown Counsel Cutler.

Let's take the example of a driver who is impaired and who is at the wheel of a beautiful Mercedes-Benz. He has just struck a youth and takes out his cell phone to call his lawyer to ask him what to do. It certainly wouldn't be good advice from a lawyer, but is it possible that his lawyer might tell him that given our criminal code and the disproportion between the penalties and the evidence that the Crown must provide, he might be better off to simply get out of there because that will make the policemen's work more difficult and he will have a better chance of getting off if he is found and is accused of fleeing the scene of an accident as opposed to driving in an impaired state?

[English]

Mr. Roger Cutler: I think that's a fair statement.

The joke—if I can digress for a moment—in the B.C. community with regard to drug-impaired driving is that when they speak to their lawyer, the simple words from the lawyer are, whatever you do, don't pee in a bottle. Once they receive that advice, that's it, there's nothing more we can do. We can say please give us a sample, but if he has been told by his lawyer not to participate, there is no offence for refusing to pee in a bottle or provide a sobriety test.

Right now the cases that are going forward are those where the suspect for whatever reason has volunteered to participate in the sobriety test and to provide a sample of urine or blood. However, those are very rare, and in most cases they happen because they chose not to contact a lawyer when given the opportunity.

I think the point you're getting at is that if they are given an opportunity to contact a lawyer, the lawyer will certainly give them the advice, do not give them any evidence you don't have to give them by law.

Under the alcohol impaired provisions, the lawyer will not tell him to refuse to give a breath sample because he knows there is that provision for refusing to provide a breath sample. So unless the lawyer is convinced there is a lawful excuse to refuse, he will say, play the game, but he'll also say, stretch it out, do whatever you can.

So I agree with you. I'm not the right person to ask because I'm on the other side, although I have done defence work. There is a game to be played by the lawyer and/or the suspect, and they play that game.

[Translation]

Mr. Michel Bellehumeur: Mr. Cutler, if we decide to provide in the Act for heavier penalties for impaired driving and insert in it the provisions you propose, including those relating to the presumption of consent, do you believe that we will also have to strengthen the penalties for fleeing the scene of an accident?

[English]

Mr. Roger Cutler: I participated in the process whereby the Criminal Code was amended a few years ago to augment the maximum sentence for hit and run from two years to five years. I should say that I was promoting ten years.

The reason behind that was that if someone is behind the wheel of a car and is involved in an accident and they are impaired, and if they size things up and are able to rationally judge the situation they're in, they would choose to leave the scene of the accident. If they stay there, they run a much greater chance of being caught for impaired driving. If convicted, the penalties are low, as has been described earlier here. So they say to themselves, why don't I just leave the scene? I run the possibility of never being caught at all, so I don't face any sanctions. If I'm caught, the price for hit and run is lower than it may be for impaired driving. Therefore, logic would suggest that I leave the scene of the accident.

I do know that in many of the courts, certainly in British Columbia now, if in fact you're convicted of hit and run and there's a suggestion that you were impaired at the time, you will get a higher sentence because the court understands that the reason you were running was to avoid detection of another criminal offence.

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I think perhaps, picking up on the submission that was made earlier, it may be that what one wants is if you get a conviction for impaired driving and in the same incident you're convicted for hit and run, you have your sentence for impaired driving and there should be a minimum addition of one year added to that sentence for hit and run.

In other words, it's not all put together. It's not unlike committing a robbery with a balaclava or a mask, or a weapon for that matter. Automatically that's your offence of robbery, but because of the way you did it, we're going to add a sentence on.

I think that may be the way to address it, to make it a cumulative penalty that says, hold on, you've committed two offences here: one of impaired driving, one of hit and run. But in answer to your question, there's no doubt that when you increase penalties and sanctions, there is an incentive to leave the scene of the accident. However, how many people are aware of that is one story. I would simply suggest that I don't think that's a reason to shy away from addressing the problem. We have the problem now.

The Chair: Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair. I certainly want to thank all of you for your preparedness and your briefs. It's very, very helpful to get the insights from the law enforcement community.

I think so much has been done by the policing community for obvious reasons. As President Obst pointed out, perhaps next to the victims, it's the police and the law enforcement community who suffer the most trauma and deal so directly with these problems and carnage on the highways.

As well, I want to congratulate you generally for the raised awareness you bring, not only to us as members of the community, but by working with groups like MADD, and even with the brewing community, who seem to have taken a new responsible approach. So I congratulate you there.

Along that vein, and as a general comment before I ask some questions, it appears to me this comes down in many cases to resources and government priority. If the government made a conscious decision that this was something they were going to deal with and put the money into, it would happen. There would be more officers on the street. There would be greater resources and equipment available to those same officers. Similarly with the crown attorneys at the provincial level. I know in my province of Nova Scotia, because of the steady instance of impaired driving, those caseloads take away from their ability to prosecute other cases.

So I think the message we have to receive and the message you're projecting is that this is a huge priority.

Now, one question I have for you, Mr. Cutler, is with respect to the incidence of drug-impaired driving. I listened very carefully to your remarks about the increase that's happening on the west coast, so I think that's probably happening across the country generally.

The current sections do not give equal shrift to the ability of the law enforcement community to respond. The section does read, however, “where an officer suspects drug or alcohol”. So when you said the officer has virtually no ability to act on suspicion of drug use in impaired driving, that isn't entirely true. If there is ample observation of those boilerplate phrases that are used—the glossy eyes, the evidence of driving, the evidence of smell, this type of thing—there is provision for the officer to act.

Mr. Roger Cutler: As I said at the outset, there is an offence for drug-impaired driving, but in the average scenario that unfolds on the street, the officer is not able to gather this sort of evidence. In a world where everyone volunteered and complied with the officer's request, yes, the officer might have that. At the end of the day, the court is going to want, first, the admission of impairment, which clearly the officer can observe. But ultimately the court is going to want to know what evidence we have that he has anything in his body, drug or alcohol. Without a blood or urine sample, we have nothing, unless we have an admission. And that's possible. In fact, I would suggest that 99% of impaired-by-drug convictions that we've had up until now are because the individual for whatever reason volunteered, yes, I just did cocaine or I just had some marijuana half an hour ago. That's enough for us to then say, okay, he said he had it. Here are the symptoms we observed.

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But in that scenario again we are relying on the individual to volunteer this information, which most of them do not do. We're left with—I see all this condition of impairment, but I have no evidence of alcohol and I can only speculate that there's some drug he has taken. I don't know what the drug is or when he took it, and for all I know it could be a head injury. That's the common defence here—I hit my head in the accident. Without that scientific evidence we're unable to go anywhere.

Yes, I agree with you. The officer can go so far relying on the voluntariness of the suspect, but those cases are few and far between, as we're finding. We're receiving these files from the police in British Columbia and most of them we're unable to proceed with. Sometimes that is because there was a charter breach because there was a demand made to provide a sample when there was no authority to ask for it, and so forth.

At the end of the day, drug-impaired driving, I would say, constitutes probably less than 1% of the impaired driving cases that go to the courts, and that's not to say drug-impaired driving is 1% of the problem.

Mr. Peter MacKay: It's fair to say as well, isn't it, that oftentimes you have a synergistic effect? You have drug and alcohol being used, and short of having a stupid criminal, which is the police officer's best evidence sometimes, you need a legislative lever. You need the ability that you have for that reverse onus that kicks in when you have a breathalyzer or an alert or a roadside screen.

Further to that, and back to the earlier point, it comes down to resources again, does it not—the ability to get police officers trained in this specific DRE evaluation and the ability to have more officers who are well versed in what to look for?

Mr. Roger Cutler: Yes, and we presently have 75 officers who have been trained in British Columbia at great expense. Again it's very frustrating because they have this ability; they're very well trained. I've seen them in action. There's nothing they can do about it, except in a situation where they volunteer.

However, keep in mind that the training with respect to the DRE also assists the officer in the alcohol-impaired investigation as well as other offences.

Mr. Peter MacKay: Sure.

Mr. Roger Cutler: When they attend at the scene of a violent crime and they're dealing with a suspect, they're able to determine whether this suspect is impaired by drugs or alcohol, leaving aside any driving offences. It's a tool that can be used across the board as far as investigating criminal offences is concerned.

Yes, there is a cost ramification, but we've certainly discovered in British Columbia that for every dollar you invest in this, you probably save $4, just on a straight dollar value, taking away the pain and suffering that victims are put through, suffering from these sorts of offences.

Mr. Peter MacKay: Do you know if the technology has advanced to the point where through urine or breath or blood you're able to get those results quickly? Obviously it hasn't progressed to the point where you have the breathalyzers on the roadside.

There was mention of a device that will detect an odour of alcohol or the presence of alcohol in the air. Is the same true of marijuana?

Mr. Roger Cutler: No, not that I'm aware of, but again I would suggest that although marijuana is part of the problem, when we're dealing with drug-impaired driving it can be prescription drugs, with a glass of beer or wine. It's also other illicit drugs such as cocaine, heroine, and so forth. There is no odour there to detect, so the officer is left with the observations and trying to be able to deduce, well, I know when he has a slow timeframe, that puts him in this category of drug. Then ultimately you need that sample to confirm there's a drug in the person's body.

The Chair: Thank you, Mr. MacKay.

Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Thank you very much for your presentation. I must say, Mr. Obst, that if, as politicians, we were able, with 24 hours' notice, to find arguments with as much impact as yours, we would be very efficient indeed.

There is something that concerns me in what I am hearing, and it goes along the same lines as what Mr. Bellehumeur was talking about earlier. When I see that approximately one third of charges, roughly 33%, result in convictions, my feeling is that the courts are having a harder and harder time of convicting persons charged with impaired driving. The legal blood alcohol limit is becoming less and less applicable as a result of being lowered. Should we not start by enforcing what we already have in our hands?

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I am not asking this question with any bias, and I don't know the answer. Should we not have as our number one priority to first and foremost ensure that what we presently have in the Criminal Code is enforced, as opposed to simply being enforceable, before thinking about increasing the severity of the punishment, including prison terms, and looking for other changes to toughen the law? Shouldn't we be starting with enforcing the law as it presently exists?

[English]

D/Commr Maurice Pilon: Perhaps I can volunteer an opinion on this, not based on the survey but certainly anecdotally from discussions I've had with police officers and information I've gathered over the years in dealing with the impaired driving situation.

I think you're looking at two separate issues here, one being whether we want to attack the incidence of impaired driving, whether it be by drugs or alcohol. The second is, is the current system working?

I would suggest that the system itself has been tailored as a result of years and years of case law, which has caused it to become very problematic in terms of ensuring that all the i's are dotted and the t's are crossed. For that reason, I try to reinforce the notion that the system has to be manageable.

From the perspective of deterring the impaired driver, again, whether it's drugs or alcohol, I think the strong deterrents, in terms of sentence, need to be there.

So I would suggest there are two separate issues there. In terms of the system, it is a system that has developed over the years, and as I would suggest, case law has brought the system to where it is today. It is very problematic in a lot of cases unless all the i's are dotted and the t's are crossed.

[Translation]

Mr. Jacques Saada: We are talking about strengthening the justice system with regard to those found guilty of having committed a crime. I would like us to talk first of all about the value of deterrence. Even though people might be sensitive to deterrence measures, would you not agree that once they start drinking—coming back to the example Mr. Obst gave earlier—their judgment may be impaired? At that stage, does deterrence really have an impact on people's behaviour?

[English]

Mr. Grant Obst: I certainly agree that once an individual starts drinking, their judgment becomes clouded, and that's where that .08 tolerance issue comes into play. But my opinion, and I think this would be shared by police officers from across the country, is that the message being sent right now is that this particular type of activity, this particular criminal offence, is not viewed in a serious vein. I would suggest that if the penalties were increased to reflect the seriousness, that message may get out a little more clearly, perhaps a lot more clearly, and if we could affect the decision that the individual makes before they go to the drinking establishment, we'd be that much further ahead of the game.

I wouldn't disagree that once the individual is at the drinking establishment and starts drinking—you're right, I'd have to wonder what the deterrence level is at that point, because at that point, being caught doesn't seem to enter into the picture any more, unfortunately, and I think that's a characteristic of alcohol use. But if we could get the message across before they went to the bar, if we could get the message across to society in general that this is not tolerable... That early intervention, that point before they went to the drinking establishment or the function, is where that thinking process of a straight or sober mind may take over.

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[Translation]

Mr. Jacques Saada: It is just a detail, but I would like this explained to me. In the brief tabled by the Canadian Police Association, mention is made of roadblocks and the following is stated:

Stricter enforcement, routine roadblocks and spot checks have all contributed to the decrease in impaired driving charges.

This is therefore a positive element in the arsenal at our disposal.

Furthermore, I read in the Safety and Security report published by Transport Canada:

Given the difficulty of dealing with criminal DWI charges, it is not surprising that officers are not very supportive of further changes to the Criminal Code such as ... introducing random breath testing...

It seems that there is a contradiction somewhere. I am convinced that it exists solely in my mind and that you will be able to very quickly clarify this. I would really like to understand.

[English]

Deputy Commissioner Roy Berlinquette (Canadian Association of Chiefs of Police): Maybe I can address it, and it will be an opinion on my side.

I think the emphasis here in the report is that the front-line police officers are caught in a dichotomy right now. On the one hand they want to apply what exists, but at the same time—and I refer to what Mr. Obst has just mentioned—there doesn't seem to be a perception that there's a seriousness taken by either the courts, the defence lawyers, or the people involved, other than the police officers, the victims, and the crowns. These are the people who have to live with the consequences of drinking and driving.

I think that is where you get that perception. When you offer to the police officer whether a change to the Criminal Code will make a difference, there is a plea right now. If you look at police officers on the front line, it's a plea for help in how to enforce and deal with this.

If I can just dramatize it a little, there was a time in policing when you would have psychological debriefings for police officers after they went to a scene where there was a firearm used or there was a bludgeoning using a knife. You had a psychological debriefing after the event. More and more, we have to have our police officers come in now and have psychological debriefings after going to scene after scene of carnage on the highways.

To us, as leaders in policing, it is a strong statement when you have people in policing who have to go on stress leave because they are going to these carnages and terrible accidents on the highways. In one-third of the cases, they can draw a direct line to drinking and driving. Even worse, to compound the factor Mr. Obst mentioned, is that many of these cases are repeat offenders.

So to put weight on what is being said here, because we said this report is a perception by police officers, you have to also balance it with a plea by police officers on the front line that there's a need for something, and one of the needs is a deterrent, as Mr. Kinnear said. We all agree there has to be more awareness, and public education really helps in deterrence.

On public awareness, Canada is the best example around the world of using seat belts. The public awareness campaign has allowed the seat belt program to be one of the best in the world.

The other thing Mr. MacKay referred to is resources. There is no doubt that in all police forces across the country, the number of police officers that are dedicated to this function has decreased over the years. That's a whole different complexity to policing, but there is a lack of resourcing. If you compound that lack of resourcing with what police officers on the front line perceive as barriers in the court to getting these cases heard and dealt with, you see there's a need and a plea for assistance.

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A deterrent can be new laws or the use of technological assistance, such as video cameras, red-light cameras on corners, and stuff like that, all in an effort to help curb what they perceive as a terrible situation.

The Chair: Thank you, Mr. Saada.

Mr. Harris or Mr. Cadman?

Mr. Dick Harris: Thank you. My question is to Mr. Kinnear.

It has become clear by the testimony given today that there's a lot of frustration with the court system and the so-called loopholes defence lawyers are able to grab onto to get their clients lighter sentences or no sentences at all. Indeed, I've seen ads placed in papers and magazines by ex-police officers who are now hiring themselves out as experts on how to get off impaired driving charges.

Given the avenues of escape in the system—and I know you've taken a lot of time to consider these recommendations—do you feel these recommendations you've put forward in your report, Mr. Kinnear, and also the recommendations that have been put forward by the other witnesses—some are duplications—will go a long way toward closing the loopholes and escape routes for people who drive while impaired?

Mr. Dale Kinnear: I don't think it will remove them all. It will certainly tighten up some of the areas, in particular what Mr. Cutler from B.C. was mentioning in terms of doing something about the drug-induced impaired driving. I certainly think that's a big leap in our ability to clamp down on that aspect of impaired driving.

No doubt with some of these recommendations, if you were to adopt them as we've written them, it may take a good lawyer three days or three months to come up with a loophole, but I guess that's part of the judicial system. Maybe part of that is not something that's dealt with in this room; it's in the administration of justice and how it's dealt with at the provincial level by provincial crown attorneys and the message that comes out of provincial justice ministries and the offices of attorneys general in terms of cracking down on some of these things. But I think these are certainly steps in the right direction.

Again, just to echo what the crown attorney from B.C., Mr. Cutler, mentioned on the drug-induced impaired driving, I guess we had never thought of that. It just simply had not occurred to us. I'm glad he was here today and brought it up. With that, you are probably where this committee found itself in the 1960s—whatever form it took back then—when the breathalyzer instrument was invented that gave police officers the ability to determine accurately the concentration of alcohol in a person's blood. We now need to apply that same type of technology and bring the sections in the code up to date to deal with that as we did—as I believe Deputy Commissioner Pilon mentioned—in 1969 when much of the current legislation found its way into the Criminal Code. I suggest a lot of that had to do with the advances in breathalyzer technology.

So although it won't fix it all, I think it goes a long way toward addressing some of the technicalities, loopholes, procedural problems, and administrative problems.

Mr. Dick Harris: I have one short question with regard to lowering the BAC limit. We heard from the science people the other day that the screening devices and testing devices have a margin of error in them that seems to be accepted. Consequently, unless you're actually blowing 1.0, you will very seldom get charged because of the error margin. So the .08 is really a number that is not enforceable.

Also, you've heard from experts and I've read material that the amount of impairment dramatically increases once the .08 level is reached and starts to go up, than it does from say a .05 level to a .07 or .08 level. So as a compromise, in order to enforce the .08 level, which is what we'd all like to do, what do you think of the suggestion to lower the BAC to say .06, accept the .02-point margin of error, and then be able to enforce the .08 level? Would that be a compromise you would like to see happen?

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Mr. Dale Kinnear: Well, I guess what's going to happen is if it becomes .06, then .08 will be the cut-off in terms of a charge. If you haven't got at least that much, you're not going to lay the charge. So I guess you develop exactly the same situation.

On which one is the most appropriate, I would advise you to seek the advice of the toxicologists. I think they can offer more on that than I can. Examine what goes on in other jurisdictions—it seems to me in Australia it's .03 or .04—and what they base their determinations on. But in terms of lowering it to .06 to enforce .08, I'm not sure that will satisfy the...

Mr. Dick Harris: Well, on a personal basis, I would love to see it enforced at .04 or .05. But because we have so much trouble with the court system and the defence lawyers—

Mr. Jacques Saada: What do you mean by “on a personal basis”?

Mr. Dick Harris: It would my preference to have a zero tolerance is what I mean. But because we have so many problems in the court system getting a charge laid at .08—as I understand, it's almost impossible—to lower it to .05 or .06 would pretty well take up the margin of error and have .08 enforceable.

Considering that the highest level impairment begins at .08, as I understand, as it goes up, as opposed to the lower levels, we may see a direct result of less incidence of death and injuries on the highway, and it may serve as a stronger deterrent.

D/Commr Maurice Pilon: Just in terms of response, the majority of our survey respondents certainly favoured leaving it at .08. I suspect some of the rationale for that is most provinces have filled the gap between the .05 and .08, or actually to 1, recognizing the calibration issues.

I'm a little surprised to hear the technical people are suggesting today's equipment still has that margin of error in it. Certainly it's been suggested to me that the Intoxilyzer and some of the newer roadside screening devices are very accurate and that the tolerance currently allowed in courts really doesn't need to exist any more.

Again going back into the history of impaired driving laws and the way the case law has shaped the legislation and the application, there has always been that error built into it, and nobody seems to want to shift from that. They want to allow that little bit of tolerance to make sure, if you will.

So I would suggest that going to a .06 would amount to what I mentioned earlier as tinkering with the legislation. I'm not sure that would be very efficient or manageable.

The Chair: Thank you.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Mr. Cutler, does an impaired driving offense require mens rea?

[English]

Mr. Roger Cutler: Yes.

[Translation]

Mr. Michel Bellehumeur: Your third recommendation was for a penalty classification system reflecting the blood alcohol ratio. I was unaware that 62% of the drivers had consumed double the legal limit, as indicated in the document. Certain drivers probably consume up to three times the legal limit.

Mr. Roger Cutler: Yes, certainly.

Mr. Michel Bellehumeur: There are even some who are virtually comatose behind the wheel when they are stopped by the police. Would that be a fair statement as well?

My question is perhaps more for the lawyer than for the president. In such a case, could the accused invoke the fact that he didn't have the mens rea to find himself behind the wheel after having intoxicated himself? Have you ever heard of such a case?

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[English]

Mr. Roger Cutler: It's an interesting irony to hear as a defence to drunk driving, “I was too drunk to know”. But it is raised and it would be raised at the higher levels.

Your point is well taken. However, it's not something that hasn't been dealt with in the Criminal Code with respect to the defence of drunkenness done in another issue, which came out of the Daviault decision. They simply made an offence to commit an offence while drunk.

I haven't given much thought to this notion of the gradation of increasing the penalties based on the blood alcohol reading. However, I do think clearly the statistics would show the higher the blood alcohol level, the greater the likelihood that there is going to be a serious accident, and presumably the greater the culpability.

But I do agree with you to a certain extent that at the end of the day, certainly in sentencing, the court will look at the moral turpitude of the individual involved. If the standard defence is that he just had so much to drink that he couldn't judge properly... That's what we're up against with this impaired driving context. It hurts the individual's judgment, so he can't make a good judgment. But as was pointed out earlier, we have to understand that they made that decision when they chose to go to the bar with their car. That's the time they should have said, oh, if I'm going to be drinking—.05, .08—I'll push it with three drinks. They're running that risk. That risk has to fall at their feet; they're the ones who decided to go that route. It shouldn't come after the fact to say, well, boy, I had three bottles of wine and I just didn't know what I was doing.

Unfortunately, it does apply with respect to murder, which is dropped to manslaughter in those sorts of cases. I think with respect to impaired driving, because of the nature of embarking on this—I brought my car, I started drinking, I should have known—that's when the moral culpability kicks in and the mens rea, not when I decide to get behind the wheel after I have already intoxicated myself.

[Translation]

Mr. Michel Bellehumeur: In your submission, you note that the Criminal Code should make some provision for implied consent. That's interesting. As Crown Counsel, can you tell me if your province has conducted any in-depth studies to ascertain whether or not implied consent is a violation of the Canadian Charter of Rights and Freedoms, specifically of section 1 of the Charter?

[English]

Mr. Roger Cutler: Generally speaking, with respect to impaired driving, we have had great success in satisfying the court under section 1 of the charter, in that there are a number of provisions in which the court has held that this is a breach of violation of the charter, whether it's section 7, section 10, or section 11. Then the section 1 justification argument is made, and the court has consistently, the Supreme Court of Canada in particular, said this is a reasonable justification because of the carnage on our highways.

One thing they underline over and over again is the difficulty in detecting the problem of impaired drivers, which was referred to earlier. We only catch one out of every 4,000 or 5,000. The courts have said given that problem and that difficulty, we think it's okay that when we do finally catch someone, we're able to take these steps as a deterrent aspect of it. As is referred to in the paper, clearly these provisions that have been suggested, as is the case with all impaired driving, are charter sensitive because you're dealing with an individual who is detained, who is being asked to provide evidence that may be inculpatory at the trial stage. However, the courts, as I've said, have consistently said that's okay.

The perfect example is the breathalyzer test. Because we have reasonable and probable grounds to believe he's impaired, we ask him to provide a sample of his breath, and based on that sample, we will convict him. That sample came from him, and it's incriminatory. But the courts have said this is reasonable, especially if the officers are required to get to that threshold.

My submissions are not suggesting an officer can walk up to anyone who is behind the wheel and say, give me a sample of your urine. What the officer has to do is reach that threshold of some indicia of impairment that suggest to the officer that this individual is impaired, whether by drugs or alcohol.

It's no different from getting a search warrant and invading someone's house. They have to have that initial threshold to embark on that investigation. I think that threshold will save it under section 1 of the charter if there is a grievance.

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The Chair: Thank you, Mr. Bellehumeur.

Mr. Mackay.

Mr. Peter MacKay: Thank you, Mr. Chair.

I think as legislators we have to be more than just charter sensitive. We have to work hard not to be charter constipated. I think we have to realize that one of the downsides of changing legislation is a jump in litigation. That's what lawyers do. This has been a cash cow. Any minor adjustment to the impaired driving provisions has resulted in an increase in the caseload.

I think the biggest challenge is going to be to change attitudes, which are very slow to change. I think it would help to put greater emphasis on deterrence and to simply acknowledge that protection of the public outweighs the right of an individual to go out and drink or do drugs and then jump behind the wheel of a car and endanger life and limb.

There was a judge in Nova Scotia who used to make the comparison and say that somebody under the influence, even minor influence, getting behind the wheel of a car and heading down the highway is the same thing as pointing a loaded gun at every person who approaches them in the opposite lane. So I think the attitudes are slow to change.

I've been hearing some novel suggestions, and I'd like to get some of your feedback, your collective wisdom, on these suggestions. One involves greater emphasis on bar owners and alcohol producers, and another involves warning labels such as you see on cigarettes or on a box of liquor saying, do not use this product in conjunction with operating a motor vehicle. Another is increased responsibility for a bar owner to see that somebody doesn't leave their establishment loaded out of their mind and jump in their car—some inquiry perhaps by the bouncers or the employees of the bar. I know the police officer being in the parking lot has an impact. Another is a locking device that a repeat offender in particular is required to install, which I think is being used more and more in Alberta, where they have to basically blow into a device before they can start the car.

I'd be interested in hearing your comments on those suggestions and any others you may be aware of that put greater emphasis on the individual, because I think this is about accountability and responsibility of the individual and not just the policing community or the legislators.

D/Commr Maurice Pilon: Perhaps I could take a quick stab at this, sir. If I were to be so bold as to make a broad statement to suggest that this was an issue we needed to cut away and that we can't have incidents of drinking and driving because the losses are too great, I think everyone here would probably agree with that. But if we were really serious about doing this, for instance, as I've heard said, the interlock devices you spoke of would be installed by the manufacturers of vehicles, and over a period of time we would not have drinking and driving because no one would drive a vehicle that didn't have such a device.

Having said that, I think there are some limitations in terms of what we're able to do. As such, I think the measures you've spoken about would all contribute in a positive way to cutting down on the incidents of drinking and driving.

As mentioned earlier by my colleagues from the Canadian Police Association, drinking and driving has touched literally everyone in this country in some fashion. I can relate to having an aunt killed. Others may relate to someone being injured. Others may relate to someone just being caught drinking and driving. In some fashion it has touched everyone in this country. Whatever measures we take, if they are one more step toward cutting down on the drinking and driving that takes place, I think it's positive.

Mr. Roger Cutler: You referred to the bar owners' issue, what I fondly refer to as the innkeepers' responsibility. I think there's no doubt that there is some work to be done there. Part of the hypocrisy of this is that it's in the interest of the innkeeper or bar owner to have the person drink as much as he can. That is why he's in business. Yet at the same time he surely has some social responsibility to make sure the individual does not leave the bar and get into a car when they're so impaired that they run a risk to whoever might be on the highway.

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Having said that, though—I'm in a delicate situation here—I don't know that the government is left unscathed in this in that, as I'm sure you know, the government as well makes a fair amount of profit off the sale of liquor. The government has this dichotomy of, hold on, we want to promote the sale of liquor to increase the coffers, but what are we going to do if we start bringing in this legislation? I throw that out there. That's more of a political issue, but I think it's one that's very real.

I think you would have more difficulty finding an innkeeper criminally responsible for that kind of activity. I would think that kind of activity may be better resolved in a civil context whereby the innkeeper has some civil responsibility or liability. That will get their attention. They will say, there's no point in me selling you 10 glasses of rye if you're going to go injure someone and I'm going to have a $500,000 or $1 million lawsuit on my hands because I did nothing to stop you.

In the criminal context we do have some difficulty, and it was referred to earlier, with regard to mens rea. Again, the onus would be to establish it beyond a reasonable doubt. The crown would have to show that bartender knew this person was impaired. There's no doubt that in some cases that's clear, that the person stumbled out or what have you, but in many cases you're putting a pretty heavy onus on the bartender to be able to police and detect the degree of impairment of someone to the point where they can take their keys, phone the police, or force the individual to call a cab.

So I'm not so sure that this innkeepers' responsibility is best dealt with in a criminal context. But it is clearly a problem. It not only applies to innkeepers, it also applies to someone who's hosting a party. They should have that same responsibility if they're supplying liquor in that context.

The Chair: Thank you, Mr. MacKay.

Mr. John McKay.

Mr. John McKay (Scarborough East, Lib.): I wanted to follow up on Mr. MacKay's questions, because he just stole my entire area. I'm wondering if we're focusing on the wrong area here. We can ratchet up the Criminal Code in terms of fines, imprisonment, and things of that nature, but really what we're doing is dealing with a cultural acceptance of drinking and driving and going into that area.

I just want to address Mr. Pilon's statistics. As I understand it, 62% of the charged people plead guilty; 18% obtain another plea out of the charge; and, basically, your conviction rate is about 83% of the remaining 20% who plead not guilty. New math or old math, about 96% of charges result in convictions of some kind or another. So in that area you seem to be dotting all the i's and crossing all the t's in an adequate sort of fashion.

Yet the time to get to that seems to be enormous. It's about a half-day's worth of police officer time, and on a not guilty plea it's about a day's worth of time. I'd be interested in hearing your comments as to how to shrink that time. It seems to me to be a disproportionate use of resources in order to obtain what is a very high rate of conviction. I'd be interested in hearing your comments on that.

Also, it appears that 1% of the drivers cause basically two-thirds of the problems. How could those people be tagged in some way or another? Within communities police officers have a pretty good idea as to who commits most of the crimes most of the time. How could we somehow or other identify that 1%? That seems to be the pool from which most of these difficulties occur.

How can we shrink the police officers' time in the whole process?

D/Commr Maurice Pilon: I'll try to deal with the second part of your question first, if that's okay, with regard to the high-risk driver we spoke about who's responsible for the majority of the incidents of drinking and driving and thus the majority of the fatal collisions that occur out there. There has been some research done into what we call the high-risk driver. While they're certainly drinking and driving, they're also the same people who don't wear seat belts, who go through stop signs, and so on. They are also, in some cases, the people who disregard the suspension of their licences, who continue to drive despite sanctions that have been put in place. There seems to be some indication in terms of deterrents that if one is allowed to effect a vehicle seizure, that will certainly have an impact, although they're always open to borrowing a vehicle or getting one somehow.

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As I mentioned in my presentation earlier, I think this is an area that does need further research, to see what in fact will deter that type of individual, because very clearly the sanctions to date have not done that. I don't have an easy answer; I hope someone does at some point.

Mr. John McKay: What about the concept of repeat offenders or the individual who is repeatedly convicted of criminal offences getting indeterminate sentences?

D/Commr Maurice Pilon: Obviously, it's one option that's available. I note that in some provinces the provincial administrative sanctions are moving in that direction. For instance, in Ontario, the first time there's a one-year licence suspension, the second time three, and the third time your licence is gone. Having said that, they're also implementing vehicle seizure for suspended drivers, a companion piece to ensure that this individual who is a high-risk driver and continues to drive will not be afforded that opportunity. If they're caught, they're going to lose their vehicle. So, again, that's a stronger deterrent.

I'm not suggesting that's the only answer, I'm not sure what the specific answer is in dealing with that individual. It may be a multi-pronged approach, such as the sentencing you're mentioning and all of these other sanctions that are being suggested. I think education is another key component, and as mentioned earlier by my colleagues at the table, certainly the message has to be out there that if you go out, first of all, you'll get caught, and second, there is a significant penalty factor.

Mr. John McKay: But education is just a complete waste of time with this 1%, isn't it? You could tell these guys till the cows come home and it just wouldn't matter. They're a lawless group of individuals.

D/Commr Maurice Pilon: It would appear that's the case, yes.

Mr. Roger Cutler: One of the things that has been referred to this morning, and perhaps not emphasized enough, is this notion of a treatment program for individuals who have certainly been convicted of impaired driving, and perhaps even those who clearly show some sort of drug or alcohol dependency. In that context, being able to identify that 1%—and they are the recidivists, the people who are incorrigible, and they're going to come back; they're basically a bomb ticking, waiting to go off. They take a mandatory treatment program upon being convicted. If they fail to pass the program, they don't get a driver's licence and they're identified as that type of individual who clearly we have to watch out for.

These are things that are certainly in the provincial jurisdiction context as far as refusing to provide a driver's licence to someone of that nature. So if you're convicted, once you're off to a treatment program and until you get a stamp of approval that you no longer have a drug or alcohol problem, we are not giving you your driver's licence.

Obviously the problem with that is that they then become drunk prohibited drivers, which is a problem in itself. That's why the sanctions for prohibited driving need to be particularly onerous as well. Having said that, there are ways of identifying this, and one was referred to: you can just look at a person's criminal record and get a pretty clear indication of whether they have a substance abuse problem. Someone who has nine impaired driving convictions, which is not that unusual, unfortunately, has no business being behind the wheel of a car. He's lost his right. He should have lost his right already, as happens in Ontario and British Columbia now, where it's three strikes and you're out. How someone gets up to nine before someone in the system, whether it be the judge, the legislation, or the individual in charge of regulating the highways... It's unconscionable that we would let someone like that have a licence.

Mr. John McKay: A Criminal Code—

The Chair: I'm sorry, I'm going to have to cut you off because of time constraints.

Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Mr. Chair.

I'd like to welcome the witnesses, which seems to be a peculiar thing to say after they've been here for two and a half hours with us, but it's just my way of welcoming Deputy Commissioner Pilon, because he not only works at headquarters in Orillia, in my riding, but he is also a native of my hometown of Penetanguishene. So a special welcome.

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D/Commr Maurice Pilon: Thank you.

Mr. Paul DeVillers: My question deals with the Canadian Police Association's recommendations with respect to minimum sentences, and it's a question for all the panel on the concept of minimum sentences.

In another life, when I was on the environment committee and reviewing environmental legislation, we were suggesting perhaps minimum sentencing for environmental offences. There was no support for that, even from Environment Canada enforcement officers. Their reasoning was that with the imposition of minimum sentences, you run the risk of losing the conviction; that there's a reluctance within the system, the courts, to convict people when it's a statutory mandated minimum sentence, if they're elevated sentences. I wonder if there's any reaction to that concept from this panel.

Mr. Roger Cutler: Perhaps I could answer that from my experience. I think that's a fair assessment. If judges I've appeared before understand that upon conviction their hands are tied with respect to the nature and extent of the sentence, on occasion the onus is that much higher on the crown. Especially with a borderline breach, a borderline offence, they say, well, this is close; I think he probably did it, but I wouldn't normally give him whatever the minimum may be.

Having said that, there's always a human element in these judicial proceedings. I think all we can do, and perhaps if there's one message that's coming here, is look after our own backyard and try to make sure we have all the tools and have done everything we can do to deter drinking and driving in this context. If the judge is that inclined that he thinks he's not going to convict someone who's guilty because he's worried about giving too onerous...that's something the judge has to deal with in his backyard.

But from the legislative point of view, which is the committee's backyard, I would urge you to do what you can do. One, allow for deterrence, and two, when an individual does commit an offence, he will pay some consequence and there is some sanction to allow for that deterrence.

I think we can second-guess judges on what they're going to do with minimums. I know for a fact that they don't like having minimums because it takes away their discretion, but at some point in time, to a certain extent, Parliament is the representative of the electorate. If the electorate decided it wanted minimums, then it seems to me that the judges have to get in line with that. I appreciate that they don't always get in line. Coming from British Columbia, we know that all too well recently.

Mr. Paul DeVillers: Notwithstanding that you come from British Columbia.

Mr. Roger Cutler: I have confidence they will catch on.

Mr. Paul DeVillers: But I think you have to appreciate that the committee and Parliament need to be aware of that problem in making any decisions dealing with minimum sentencing. If there is that practical consequence, we wouldn't want to see the conviction rate go down because of it.

Mr. Roger Cutler: No. I don't think it's something you can tangibly or factually prove, because it's clearly at the discretion of the judge and how they feel, given the case. That's why I'd be a little reluctant to shy away from these sorts of recommendations, because there's a fear that some judges may be more reluctant to convict, especially when there's no data to suggest that. What I tell you is just my own experience, what I've observed. Certainly when the judge realizes he has earlier convictions and knows that this is going to result in a heavier sentence, you do see a greater onus put on the crown to prove that case. I don't think one can deny that.

Mr. Grant Obst: If I could briefly comment on that particular point, sir, I think a number of people have hit on it here today, and Mr. MacKay probably hit the nail right on the head when he said what you have to do is change attitudes; what you have to do is adjust the cultural acceptance.

On the minimum sentencing issue, I'm not sure. Perhaps it would affect the conviction rate, but where you want to be focused is in affecting the thought process of the individual considering drinking and driving. I think the whole thrust of the minimum sentencing and a number of the other recommendations that the CPA have proposed, as well as my colleagues here, is to try to get that message across to people that we've had enough; this is a serious criminal offence and it's going to be treated as such. Yes, maybe our conviction rate will suffer, but hopefully our incident rate will drop, and that's really the key, I think.

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Mr. Paul DeVillers: I'm one hundred percent in agreement; it's an attitude-changing process we need.

Thank you, Mr. Chair.

The Chair: Mr. John McKay, you can have a supplementary question.

Mr. John McKay: We'll have to have this conversation about allocation of time.

I wanted to follow up with respect to where we were in our conversation about the issue of, if you will, indeterminate sentences and whether there is some basis for amending the code given that we have a very narrow window that we look at as legislators. Is there some basis for amending the code to provide for indeterminate sentences after a third conviction or after a clear pattern is established, so that these people are simply almost yanked right out of society?

Mr. Roger Cutler: There is certainly a precedent for that with respect to firearms and other various offences. If there's a history there, the court can take steps to prevent that individual from being in the circumstance that he's going to recommit that offence. I don't see any difficulty with the Criminal Code having in their sentencing provisions that upon a second or third conviction the individual is prohibited from driving for whatever period of time. It exists right now; the question is whether it's long enough. In fact, the Criminal Code's minimum prohibition period for the first-time impaired driving is three months, while in most provinces in Canada, upon being convicted the regulatory aspect of the provincial jurisdiction kicks in. In B.C. it's 12 months.

Mr. John McKay: Is there an area to be explored here whereby a defence counsel dealing with a repeat offender has to have in the back of his mind that if we're going to fight this thing, you're going to potentially have an indeterminate sentence? In other words, it won't be three years, it won't be four, it won't be five discounted by blah, blah, blah; it will be an indeterminate sentence at the pleasure of Her Majesty. Would that be a useful kind of amendment to the code?

Mr. Roger Cutler: Just to make sure I'm understanding the question, if someone wishes to plead not guilty and run the trial, they run the risk of a greater sentence upon being convicted than they would have gotten if they had pled guilty at the outset?

Mr. John McKay: That's there regardless, but no, this would be both with pleas and with people who want to fight. There would be the possibility that this person with nine convictions, this person who drives while under licence suspension, this person is basically a lawless individual and will be spending a lot more time at the pleasure of Her Majesty than simply the three years discounted by two-thirds.

Mr. Roger Cutler: As I say, I wouldn't see any difficulty with that, assuming it was legislated. I do think one would have to be able to carefully categorize which sort of people we want to fall into that. As Mr. Pilon just mentioned, we deal with dangerous offenders with respect to violent offences, but one of the ironies here is that the consequences of impaired driving can often be a lot worse than any violent offence. At some point in time, that's what we have to understand. It's the consequences we're concerned about. No one is too concerned about someone indulging too much in their libations; it's the consequence that leads to.

The courts have been quite clear that if someone is caught for impaired driving but there was no accident, with the exact same blood alcohol reading, exact same driving as someone who happened to be in an accident who caused a fatality, that person in the fatality, although his actions were no different, his mental state was no different from the person who was not in the accident, will go to jail or suffer a greater sentence because of the consequences.

I think that may be the tie-in here. If you've proven after three or four convictions that you're a danger, then yes, we are going to move in. As far as taking them out of society and being incarcerated, I suspect there would be charter challenges, whether that's cruel and unusual punishment and so forth—the defence counsel will invent whatever needs to be done to bring that argument.

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I don't think anything cannot be looked at in this context because of the nature of the problem and its consequences. If we can stop one person from drinking and driving because of the fear that they might be placed in jail, we've done our job.

The Chair: Thank you, Mr. McKay.

Just a question, Mr. Cutler, on roadside saliva tests. Do all drugs react or respond in the same way? Is marijuana the same as cocaine? Does one marijuana cigarette have as high intensity on your device as three? How do prescription drugs fit into the equation? What is the immediacy—a couple of hours, the previous day? How does that react?

Mr. Roger Cutler: The drug recognition evaluation program divides all the drugs known into seven different categories, based on their impairing effects on an individual. These include a central nervous system depressant category and a stimulant category.

Through his evaluation, depending on the indicia of impairment, the officer is able to put them in a category. So one of the tests, for example, is nothing more than “Okay, tell me when 30 seconds is up”. The individual who is on a stimulant will tell you it's 30 seconds after 15 seconds; the one who is on a depressant may tell you 2 minutes later. So he will put that in a category as one indicia that this person is on a stimulant.

Then they do something else like a sobriety test. If he happens to be moving quickly or what have you, again we check off stimulant. So at the end of this test, the officer is able to say whether a person is impaired by that category of drug.

Then the urine or blood sample taken is sent off to a lab. When it comes back after analysis, hopefully it will pinpoint a drug, such as cocaine, that says stimulant. Low and behold, the individual the officer picked as being impaired by a stimulant, cocaine, matches with what was found in his blood at the time.

The question you raise is one of the difficulties here. Unlike alcohol, drugs will stay in your system long after they no longer have an impairing effect on you. Something such as marijuana—and I may be mistaken with respect to my scientific evidence—I believe lasts as long as a month, if not longer, in the blood system, but its impairing effect may be over within a matter of hours.

So the officer has to be able to observe the indicia of impairment consistent with marijuana, if we're using that example, and then ultimately bring in the blood or urine sample to say it was marijuana. But to simply have a test on a urine sample that says he has had marijuana doesn't do anything for the enforcement or prosecution, because that marijuana may have been smoked a month earlier and had no impact on his driving the day the officer pulled him over.

There is that connection, which is why the breathalyzer instrument just doesn't work with drug impairment. But with the great invention of the DRE they've managed to merge these two investigative techniques, whereby the officer is able to come to a conclusion on the nature of the impairment and then match it up with the blood or urine analysis. They aren't given a certificate unless they're able to do that accurately. In my experience with them, it's uncanny how they're able to do that with the training and pinpoint the nature of the impairment.

The Chair: Is your blood sample in a vial like a normal test of your blood for a medical problem, or is it like DNA, where a small—

Mr. Roger Cutler: It doesn't have to be. It simply has to be enough of a sample that it can be tested. I assume even a pinprick would be sufficient. I should say most people, given the choice—and this is certainly not only the British Columbia experience but in the States—will take the urine sample, which is much easier to deal with when one is at the detachment.

I should say, because your initial comment was with respect to the saliva test, that saliva tests are very much in their infant stages. They can presently detect a drug, and I believe they are working now on being able to detect the nature of the drug. But it's nothing more than a strip of paper that turns a certain colour if it detects a drug.

The submissions I'm making at this stage are simply to allow it to act as a confirmation that there is a drug in the system. Then we go a step further to confirm the nature of the drug and what its impairment effect may be. I understand the scientific community hopes some day soon to be able to have a roadside saliva test that will be able to tell the officer the nature of the drug that has been ingested.

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The Chair: Thank you.

Chief Pilon, you indicated you didn't have specific recommendations, but you may have them by the summer. I hope we're through this before the summer. Is there any way to expedite your recommendations, even on a preliminary basis?

D/Commr Maurice Pilon: Certainly we can try to do that. We have groups across the country working on various aspects of the recommendations based on the findings of this survey. So we could try to get something to this committee. Certainly we can have some discussion around how quickly we could get something to you.

The Chair: My clerk advises us March 9 is a possible consideration of a draft report. Is that a deadline you might be able to meet?

D/Commr Maurice Pilon: I will make some inquiries, sir, and I hope we can give you something.

The Chair: Thank you. We appreciate it.

Are there any other quick questions or problems? There are none. It's been a long morning, but it's been a very informative morning. We appreciate your presence here today and the evidence and comments you've given us. I'm sure constructive things will come out of it. Thank you very much.

Committee members, just hold on for a few seconds.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): I want to raise a point about witnesses.

The Chair: Okay. Ms. Bakopanos.

Ms. Eleni Bakopanos: Mr. Chair, I wanted to raise the issue of the witnesses who are coming before us on two private members' bills that are before this committee. Unfortunately, when we looked at the witness list, it was an omission on my part not to mention the fact that usually the officials from the ministry of justice are invited as expert witnesses to comment on private members' business, and they were left out of the witness list. So I want to have the agreement of the committee for each of those motions to have the witnesses come.

The Chair: They're in there.

Ms. Eleni Bakopanos: They're in there? I just wanted to make sure. So you've got them under briefing. Okay, that's fine. Thank you.

Mr. John McKay: Mr. Chair, before we leave, I just want to put it on the table that I'm upset with the questioning here. It's seven minutes, seven minutes, seven minutes, and then seven minutes over here, and then seven minutes, seven minutes, seven minutes, until we finally get to this side to ask some questions. Then it gets to be a three-minute round. That's a heck of a long time to wait to ask questions. If this side is to have some effective participation in this process, this balance has to be changed.

I appreciate it gives the opposition an opportunity to really get at government legislation, but this is a study. None of us has really formed strong opinions, and these are recommendations. Frankly, I don't really see the argument as to why the opposition should get so much more time than the government members in an analysis of this kind.

We may be able to arrive at some sort of informal resolution of this. If not, I'll bring forward a motion to change the allocations of time. I don't particularly care to have a conflict with you, Mr. Chair, but if need be, I will. I'd like to suggest to the steering committee that prior to the next committee meeting they have some sort of worked-out arrangement with respect to a more equitable division and distribution of the time. Otherwise we're going to vote on this thing.

The Chair: Mr. DeVillers.

Mr. Paul DeVillers: I thought the arrangement previously was that after the first round it would alternate—opposition, government, opposition, government. Am I wrong in that, or is that another committee I'm thinking of?

Mr. Peter MacKay: No, I think that was right.

Mr. Paul DeVillers: Would that satisfy your concerns?

Mr. John McKay: My recollection was that there was some rough equality in the time allocation and the way we went around. Again, I appreciate this is the opportunity for the opposition to kick the snot out of the government. But having said that, in this particular study, none of us has really formed strong opinions one way or another as to what needs to be done. This is not dealing with government legislation, so I think we need to arrive at something that's a rougher equality, shall we say.

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Mr. Paul DeVillers: But in answer, would that satisfy your concern that—

Mr. John McKay: Yes. I mean, I would go back and forth—

Mr. Paul DeVillers: Opposition, then back and forth after—

Mr. Dick Harris: In a second round.

Mr. John McKay: Yes, second round, back and forth.

The Chair: No difficulty?

Mr. John McKay: What then is the first round?

Mr. Paul DeVillers: Opposition first, government, then one opposition, government, next opposition, government—

Mr. John McKay: But is it seven minutes, seven minutes, seven minutes? One seven-minute round and then a second round?

The Chair: Yes, that's the way it has been. That's how it functions.

Mr. John McKay: So it's 28.

Mr. Paul DeVillers: That's how it has functioned in the past.

Mr. John McKay: In the first round, let's get a little more time over here.

The Chair: Also, the second round is generally three minutes. Today, certainly it was a very interesting subject, and you're right, we wanted to have the information and all of them were double. Then we had the three-minute rounds, so one was even almost triple.

Mr. John McKay: Well, the first round, frankly, is the only important one. After that everybody's just doing back-up questions.

Mr. Dick Harris: Not necessarily. Speak for yourself, John.

Mr. John McKay: I never get to ask the second question. So my suggestion would be three seven-minute rounds over there, a couple of seven-minute rounds there, then go to your second round.

The Chair: Okay. Can we refer that to the steering committee for further discussion? We appreciate your input on that, John.

Ms. Eleni Bakopanos: Just on that point too, the witnesses today, although they were very informative, did have written briefs. I think there was too much time allocated, in my personal opinion—I'll bring that up in the steering committee—on the amount of time that was allocated for the witnesses. That is not to say anything about the quality of the witnesses' contribution, but we do have written documents on each one of them. That cut down, John, in fact, on the time that was available for questioning. I don't know if there's any way of getting around that, but I think we had a 35-minute presentation at first, then another 20-minute oral presentation, another half hour—I didn't time it, but I was just thinking in terms of the time we had available.

So I think you might be able to accommodate us in terms of the questions—

Mr. John McKay: We should brief the witnesses and simply say, look, just bring the executive presentation or executive summary.

A voice: They had been briefed.

Mr. John McKay: They had been briefed? Then maybe, Chair, you've got to exercise a little more clout.

The Chair: Do I have the chair's authority to break in after 10 minutes and say we'll move on?

Mr. John McKay: Give them a warning at the beginning.

The Chair: Okay. I don't want anyone saying, well, this person didn't have enough time; he's got good stuff to tell us.

Mr. John McKay: No, they all had good stuff. It wasn't an argument about content.

Ms. Eleni Bakopanos: That's right.

Mr. John McKay: This is true especially when there are a number of witnesses sharing their time, and I agree with Eleni. Basically that presentation was read into the record. We had it verbatim before us. This is not to criticize the presentation, but it's a bit of a duplication to have it there in front of you and have him read it into the record.

The Chair: Okay, fine. That being final, I'll adjourn the meeting. Thank you.