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38th PARLIAMENT, 1st SESSION

Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness

EVIDENCE

CONTENTS

Thursday, June 9, 2005

0905

The Chair (Mr. John Maloney (Welland, Lib.))

Professor Line Beauchesne (Associate Professor, Department of Criminology, University of Ottawa, As an Individual)

0910

The Chair

Professor Neil Boyd (Professor of Criminology, Simon Fraser University, As an Individual)

0915

0920

The Chair

Mr. Ed Doerksen (As an Individual)

0925

0930

The Chair

Mr. Emile-J. Therien (President, Canada Safety Council)

0935

0940

The Chair

Mr. Emile-J. Therien

The Chair

Mr. Randy White (Abbotsford, CPC)

0945

Prof. Neil Boyd

Mr. Randy White

0950

The Chair

Mr. Randy White

Mr. Emile-J. Therien

Mr. Randy White

Mr. Emile-J. Therien

The Chair

Mr. Richard Marceau (Charlesbourg—Haute-Saint-Charles, BQ)

Prof. Line Beauchesne

Mr. Richard Marceau

0955

Mr. Emile-J. Therien

Mr. Richard Marceau

Mr. Raynald Marchand (Manager, Traffic Safety and Training, Canada Safety Council)

The Chair

Mr. Joe Comartin (Windsor—Tecumseh, NDP)

Mr. Emile-J. Therien

1000

Mr. Joe Comartin

Mr. Emile-J. Therien

Mr. Joe Comartin

Mr. Emile-J. Therien

Mr. Joe Comartin

Mr. Emile-J. Therien

Prof. Neil Boyd

Mr. Joe Comartin

The Chair

Hon. Paul Harold Macklin (Northumberland—Quinte West, Lib.)

Mr. Emile-J. Therien

Hon. Paul Harold Macklin

Mr. Emile-J. Therien

Hon. Paul Harold Macklin

Mr. Emile-J. Therien

Hon. Paul Harold Macklin

Mr. Emile-J. Therien

Hon. Paul Harold Macklin

Mr. Emile-J. Therien

Hon. Paul Harold Macklin

Mr. Emile-J. Therien

Hon. Paul Harold Macklin

Mr. Emile-J. Therien

Hon. Paul Harold Macklin

Prof. Neil Boyd

1005

Hon. Paul Harold Macklin

Prof. Neil Boyd

Hon. Paul Harold Macklin

Prof. Neil Boyd

Mr. Raynald Marchand

Hon. Paul Harold Macklin

Mr. Emile-J. Therien

Hon. Paul Harold Macklin

The Chair

Mr. Mark Warawa (Langley, CPC)

1010

Prof. Neil Boyd

Mr. Mark Warawa

Prof. Neil Boyd

Mr. Mark Warawa

Prof. Neil Boyd

The Chair

Mr. Serge Ménard (Marc-Aurèle-Fortin, BQ)

1015

Prof. Line Beauchesne

Mr. Serge Ménard

Prof. Line Beauchesne

Mr. Serge Ménard

The Chair

Mr. Serge Ménard

Prof. Neil Boyd

1020

The Chair

Hon. Roy Cullen (Etobicoke North, Lib.)

Prof. Neil Boyd

Hon. Roy Cullen

Prof. Neil Boyd

Hon. Roy Cullen

Mr. Emile-J. Therien

Hon. Roy Cullen

Mr. Emile-J. Therien

Hon. Roy Cullen

Mr. Raynald Marchand

Hon. Roy Cullen

Mr. Raynald Marchand

Hon. Roy Cullen

1025

Prof. Neil Boyd

Hon. Roy Cullen

Prof. Neil Boyd

Mr. Emile-J. Therien

The Chair

Mr. Myron Thompson (Wild Rose, CPC)

1030

Mr. Ed Doerksen

The Chair

Mr. Joe Comartin

Mr. Emile-J. Therien

1035

Mr. Joe Comartin

Mr. Emile-J. Therien

Mr. Joe Comartin

Mr. Emile-J. Therien

Mr. Joe Comartin

Mr. Emile-J. Therien

Mr. Joe Comartin

Mr. Emile-J. Therien

Mr. Joe Comartin

Mr. Emile-J. Therien

Prof. Neil Boyd

Mr. Joe Comartin

Prof. Neil Boyd

Mr. Joe Comartin

The Chair

Mr. Serge Ménard

Prof. Line Beauchesne

Mr. Serge Ménard

Mme Line Beauchesne

Mr. Serge Ménard

Prof. Line Beauchesne

1040

Mr. Serge Ménard

Prof. Line Beauchesne

Mr. Serge Ménard

Prof. Line Beauchesne

Mr. Serge Ménard

The Chair

Ms. Anita Neville (Winnipeg South Centre, Lib.)

The Chair

Ms. Anita Neville

Mr. Emile-J. Therien

Ms. Anita Neville

Mr. Emile-J. Therien

Ms. Anita Neville

Mr. Emile-J. Therien

Ms. Anita Neville

Mr. Raynald Marchand

Ms. Anita Neville

Mr. Emile-J. Therien

Ms. Anita Neville

Prof. Neil Boyd

1045

Ms. Anita Neville

Prof. Neil Boyd

Ms. Anita Neville

The Chair

Mr. Garry Breitkreuz (Yorkton—Melville, CPC)

Mr. Emile-J. Therien

Mr. Garry Breitkreuz

Mr. Emile-J. Therien

Mr. Garry Breitkreuz

Mr. Emile-J. Therien

Mr. Raynald Marchand

Mr. Randy White

Mr. Emile-J. Therien

Mr. Randy White

Mr. Emile-J. Therien

Mr. Randy White

Mr. Emile-J. Therien

1050

Mr. Randy White

Mr. Emile-J. Therien

Mr. Randy White

Prof. Neil Boyd

Mr. Ed Doerksen

The Chair

Prof. Neil Boyd

The Chair

CANADA

Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness

NUMBER 044

1st SESSION

38th PARLIAMENT

EVIDENCE

Thursday, June 9, 2005

[Recorded by Electronic Apparatus]

* * *

¿ (0905)

[English]

The Chair (Mr. John Maloney (Welland, Lib.)): We have quorum. I'd like to call the 44th meeting of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to order.

Our guests this morning are Line Beauchesne, associate professor at the Department of Criminology, University of Ottawa; Neil Boyd, professor of criminology, Simon Fraser University; and Mr. Ed Doerksen. From the Canada Safety Council, we have Emile Therien, Ethel Archard, and Raynald Marchand.

I would perhaps ask Line to start off.

The procedure is that you have approximately 10 minutes for a presentation. Then we'll go through all the presentations, followed by questions and answers of five minutes each from our panellists.

Madame Beauchesne.

[Translation]

Professor Line Beauchesne (Associate Professor, Department of Criminology, University of Ottawa, As an Individual): Thank you for this invitation.

In considering this bill, we must first look at the goal it seeks to achieve. That's how you consider a bill. The goal here is road safety, and criminal law must serve as a support for prevention. It shouldn't be the main strategy, but rather a complement to other strategies.

First, we have to understand the present situation. In impaired driving, action is currently focused mainly on alcohol, and the breathalyzer test is the means used to determine whether a person is impaired. This method has a certain number of deficiencies. The first is that the focus is not on all impairments, but on alcohol consumption, regardless of the state of the driver. The problem is that people think that, if they haven't been drinking, they can drive.

One of my students did her master's thesis on all of Health Canada's youth prevention programs in the schools on the question of impaired driving. They all focused exclusively on alcohol. This causes a number of behaviours in people that are much more related to fear of the police and the breathalyzer test than to an accurate assessment of their ability to drive.

Here are some examples of situations I've often seen. A man continues drinking while his wife has been asleep on the sofa for the past two hours. Since he isn't in any condition to drive, he wakes his wife up and asks her to drive. She's been sleeping for two hours and therefore isn't necessarily in any condition to drive, but her breathalyzer test will be negative. Students work unusual shifts, go 40 hours without sleeping and then travel considerable distances, but they haven't been drinking. They don't ask themselves whether they're able to drive, but rather whether they've drunk alcohol. Here's another example: take a secondary road. People here cross the river by the Chaudière Bridge when they've been drinking because there may be police road blocks on the other bridges. People wind up knowing the right places to go. This is another situation in which people don't assess their impairments. It's one in which they assess the likelihood of being stopped.

So let's consider Bill C-16 in relation to the current situation and its deficiencies in order to determine whether or not it improves the situation. I believe it improves it in part because of the measurement of motor skills. In the past few years, good motor skills tests have scientifically confirmed impaired faculties. Police officers can easily learn to master these tests, which measure impaired faculties.

However, I don't understand — and this is the negative part of this bill — why we need to add drug tests to validate those tests. In other words, if it has been determined by means of a motor skills test that my faculties were impaired, and my drug test is negative, that doesn't prove that I'm in any condition to drive. If my test shows that I used drugs, it doesn't prove that's the cause of the fact that I was in no condition to drive. The drug tests can indicate whether you've taken two, three, four or five drugs. If the test shows, based on metabolite levels, that you've smoked marijuana, you may have smoked it several days earlier. The test absolutely does not prove that you are under the effect of drugs that may have affected our driving. I don't see what information this adds.

However, there are surprises from the moment you use motor skills tests. You find elderly individuals who should not be driving their cars, people who haven't drunk alcohol but who are extremely tired, or people who have just had a terrible fight with their spouse, who have taken their car and who are not able to gauge things. Consequently, we may give some thought to the use of criminal measures with regard to impaired faculties and be a little lighter on the gas pedal. In the case of alcohol, it's as though we think we can do anything because we've isolated a behaviour that we consider inappropriate.

¿ (0910)

If I'm driving on the road, I want to know whether the person I cross paths with is in a condition to drive, regardless of the reasons. Here it seems as though there is good impairment — people who fall asleep at the wheel, who are tired, who aren't in any condition to drive, but who haven't been drinking — and bad impairment, when you've consumed something.

This sends out a very bad message, which is very harmful when you want to work on prevention. It's hard to explain to young people that the idea is to measure driving ability. The message has to focus on all factors that may affect driving ability.

I think we have to go back to a kind of prevention that involves all factors that may affect driving ability. Motor skills tests could lead to that. That's not true of drug tests, which moreover are very strongly encouraged by the drug testing industry. I didn't address this at any length in my brief, but drug testing companies are penetrating the sports and work worlds. This is a multi-million dollar industry. They've succeeded in introducing this into all kinds of workplaces in the United States. Then they came here through subsidiaries. We shouldn't fall into the drug testing trap. In my opinion, we should ask ourselves what the best test is for measuring impaired faculties, regardless of the reason why the faculties are impaired, and subsequently adopt a comprehensive policy.

[English]

The Chair: Thank you.

Mr. Boyd, please.

Professor Neil Boyd (Professor of Criminology, Simon Fraser University, As an Individual): Thanks very much.

I understand Bill C-16 is a companion piece to Bill C-17. I have just a preliminary comment with respect to that point, that there is really no good evidence of change in relation to patterns of cannabis consumption as a consequence of reduction in penalties or what one might term decriminalization in either the United States jurisdictions in which that has occurred or indeed in the European jurisdictions in which we have seen a much more substantial relaxation of penalties for possession and to some extent distribution. So to the extent that Bill C-16 is said to be scientifically connected to Bill C-17, I don't think there's much evidence of that. To the extent there is a political reason for linking Bill C-16 and Bill C-17, I understand quite completely.

That aside, it seems to me clear that cannabis use, particularly recent cannabis use, does constitute a risk and that Bill C-16 is attempting to primarily deal with cannabis, although of course it deals with drugs other than cannabis and alcohol and proposes this three-pronged test.

I might say, about impaired driving generally, that it's probably one of those areas of the criminal justice system in which one could say there is relative leniency, given the harm done by the conduct. That is to say, if we look at first- and second-degree murder and manslaughter and contrast them with impaired driving or contrast a wide range of criminal offences with impaired driving and the fatalities that are clearly traceable to impaired driving, one might wonder at the loss of life and the relative leniency.

My point, however, is not to urge tougher penalties for these offences but to point out that there is an inconsistency here, and I'll return briefly to that at the close of my remarks.

Concerning the three-pronged test, I understand and support the notion of standardized field sobriety tests as a first prong. I support the idea of an evaluation conducted by a drug recognition expert. The third prong is the prong I have some difficulty with: the request for blood or bodily fluid. The difficulty with this approach, I think, is that it's not clear what levels of criminal impairment should attach to which drugs. For example, in order to obtain an accurate reading of cannabis use in the preceding three hours, it seems clear blood tests will be necessary, and it's not even clear how reliable these readings will be.

We have to recognize that blood tests are highly intrusive in contrast to the breathalyzer, and as many have pointed out, conviction on standard field sobriety tests alone would not be possible. So in order to obtain criminal convictions, one will have to proceed to the third prong of the test, that is, to require what will most likely be a blood sample.

And then--and I think this is probably the most fundamental question--is there a science of impairment by THC or indeed by a wide range of other drugs or the combinations of various drugs? We do know from the evidence that the combination of cannabis and alcohol impairs to a much greater extent than alcohol alone or certainly than cannabis alone. The Canada Safety Council, for example, has raised the question of whether these tests will pass the standard of “beyond a reasonable doubt” that is required for criminal conviction, with a sufficient clarity.

I note that when Minister Irwin Cotler was before this committee, he made the comment that “we don't have the same kind of scientific consensus”--I think he was speaking about cannabis--as with alcohol.

So it's clear that if the government is going to go ahead with this bill, particularly with the third prong, it's going ahead in something of a knowledge vacuum. It's making a decision about how to proceed without a corresponding base of knowledge with respect to levels of impairment and with respect to the bar of criminal conviction. It's very clear with alcohol that with 0.08%--we can have debates about whether it's 0.05%, 0.08%, or 0.10%--there is a long history and there are established tests to document the harm that comes from those levels of impairment.

¿ (0915)

I also want to note that the minister and others have cited studies in which 20% of drivers in fatal crashes are said to be impaired by cannabis. The Traffic Injury Research Foundation found that in 57% of these traffic fatalities alcohol was involved and in 11% cannabis was involved. However, more telling is that if we look at that 11%, which is of course one-fifth of the amount of the alcohol cases, we see that in 84% of that 11% both cannabis and alcohol were involved.

My point is not that cannabis is trivial and that one shouldn't be concerned about cannabis-impaired driving, but it is a tiny drop in the bucket in terms of harm in contrast to the harm of alcohol, of alcohol and cannabis mixed, or of the combination of alcohol and other drugs.

In terms of present realities, I am fortunate enough to teach police officers and to work with police officers on a range of projects. What have I learned from them with respect to impaired driving? It's that 24-hour licence suspensions are the most common means of responding to the problem, that they don't proceed to lay impaired charges because doing so is so inefficient, so difficult, so time-consuming, and that they find it much more effective to simply give a potential offender a 24-hour licence suspension.

What you have constructed in Bill C-16 is a much more elaborate way of trying to respond, a much more technical, demanding, and time-consuming way of responding to the cannabis-impaired driver and the driver impaired by combinations of alcohol, cannabis, and other drugs. The current process takes too long. It's inefficient. My question is, why would this be different?

We have to recognize that impaired driving, like investment fraud, is committed by people with resources. It's a little different from most other kinds of crimes people in the criminal justice system face. As a consequence, as is the case with those charged with investment fraud, people charged with impaired driving and breathalyzer offences have significant resources. They show up in court with well-heeled lawyers, and they're ready to create perhaps the most substantial body of case law just in the instance of impaired driving we have seen in the last 100 years. There is an astonishing difference, for example, in the rights accorded impaired drivers in contrast to the rights accorded people charged with illegal drug offences.

I think, though, in closing, much about this legislation is positive. There is an educational benefit. Many have noted that once you proceed through the standard field sobriety tests and go to the drug recognition expert, you can be talking about assistance to people who have medical problems, particularly when we know it is not just alcohol or cannabis but a wide range of medications that can lead to impairment.

I'd urge you to reconsider the third prong. I don't think it will work in terms of the way the criminal justice system operates. It's simply not practical, not efficient, but at the same time, the first two steps, the sobriety tests and the drug recognition experts, could have both educational benefit and preventive benefit.

¿ (0920)

The Chair: Mr. Doerksen.

Mr. Ed Doerksen (As an Individual): Mr. Chairman, members of the committee, ladies and gentlemen, I'm honoured to have been invited to appear before this committee concerning Bill C-16.

Let me begin by saying that I support all and any attempts to reduce and even curtail impaired driving on the roads and highways of Canada. Impairment by alcohol, a drug, or a combination of both has facilitated many hardships for individuals and their families.

To stress my point, I could have brought in pictures of individuals who've been killed because of an impaired driver. I could also have brought in eight of my own artificial legs and set them before you to further demonstrate my point.

Bill C-16 is a chance to change the attitudes of individuals on impaired driving. I believe the outcome of May 17, 1979, would have been different if the section relating to drug impairment had already been in place. Instead of receiving a $28 fine for improper passing under the Ontario Highway Traffic Act, police would have been able to present a charge of impaired driving due to a drug. The individual who caused the amputation of my own leg was a known drug dealer and a user. At the scene of the accident, it was observed that he was unaware of what had actually taken place. According to police and witnesses, the individual appeared to be on a drug.

The attitude of many Canadians, both young and old, is one of belief that impaired driving is a victimless crime. They have little to no concern about impaired driving, even if they get caught. When many of these impaired drivers cause an accident, there's little to no remorse for their actions. To them, it's just an accident that happened. They become annoyed, believing they are being persecuted for what has taken place. This is where I would like to see Bill C-16 strengthened, in the area of placing responsibility directly on the impaired driver for his or her actions.

I would like to suggest that those found guilty of impaired driving by the courts face (a) a mandatory loss of their driving privileges for a period of one year for the first offence; (b) a fine of not less than $1,000; (c) a requirement to attend a two-week to one-month alcohol and drug impaired-driving program at their own expense; and (d), at the end of this program, successful completion of an exam, with a passing grade of 85%, before they are able to reapply for their driving privileges.

For those causing injuries to others, Bill C-16 suggests, in proposed subsection 255(2), a possible term of imprisonment of not more than ten years. I would like to suggest a mandatory term of no less than one year and not more than ten. In the case of causing death, in terms of proposed subsection 255(3), I would like to suggest a mandatory five years to life imprisonment. Both of these mandatory terms would be over and above a fine and participating in the awareness program suggested previously.

This may sound harsh to some people. I would ask that you put yourself into the position of individuals like me. Part of our lives were stolen from us, and we can't have it back. I find being an amputee in the last 26 years has been neither a romantic nor an awesome experience. I daily put on and take off a constant reminder of that day in May 1979, while the individual who caused all of this continues to deal and use drugs, living in Calgary, laughing about the whole event.

Let me give you some examples of why Bill C-16 should include tougher penalties.

First of all, on any given summer weekend, an estimated one in ten drivers leaving Wasaga Beach provincial park is sober.

Two, for the average Canadian wedding party or social event where alcohol is served, it can be safely estimated that no one leaves these events sober. And this does not include the bars and nightclubs where alcohol and drugs are part of the evening's festivities.

The third point is that bars, hotels, and nightclubs all serve individuals to and beyond the point of intoxication without any willingness to cut off the people who have had too much.

I'm not against people enjoying themselves. What I am against is people not being held accountable for their actions, people who, without any concern for their own life or the life of others, get behind the wheel of their vehicles and drive while impaired. I believe Bill C-16 can assist in doing this if you, our lawmakers, have the desire to make it so.

Another area of concern for me is clause 3, amending section 254 of the Criminal Code of Canada. I'm referring to proposed paragraph 254.1(1)(a), respecting the qualifications and training of evaluating officers. I understand that section allows the Governor in Council to make regulations concerning the training of drug recognition experts, otherwise known as DREs. I've read the reports from different jurisdictions regarding DRE evidence and the development of the DRE officers. I agree that such officers are needed to enforce the provisions outlined in Bill C-16.

¿ (0925)

There are two points I would like to make. First of all, the training of DRE officers should be more than an eight-hour course and more than a weekend course, as has been the case in some jurisdictions. I would like to suggest that an in-depth program be developed that lasts more than two weeks. Second, all DRE officers should attend a recertification course every three years.

My concerns in this area are the result of information obtained where courts have dismissed evidence from DRE officers on the basis of qualifications and experience. After all, police officers are not doctors, and we are suddenly requiring them to be similar to medical practitioners. There are many medical symptoms that are similar to drug-induced impairment, and these officers need to know the difference.

In closing, governments, educators, and anti-impaired driving organizations have spent millions of dollars in an attempt to educate the population about impaired driving. These have all had little effect. I know. In 1986, as a special constable with the Barrie City Police Services, another constable and I presented a three-day alcohol and drug impaired driving awareness program. We included presentations from the coroner, an insurance agent, accounts of accidents from the constable, and the viewing of a graphic movie showing highway carnage, burned bodies, and statistics of death on the highway.

An impression was made. There is little to no doubt about how the high-school students were affected by this presentation. But like everything else, it was short-lived for many individuals.

At a time when health care is at a premium, impaired driving has placed a burden on the system tending to the needs of accident victims. A further burden has been placed on the lives of individuals and their families trying to cope with disabilities and death because of an impaired driver.

One artificial limb such as mine can cost anywhere from $15,000 to $25,000. Portions of that expense have to be divided among organizations and government programs, leaving the rest coming out of my own expenses. When I only earn less than $10,000 a year, this becomes a continual burden, and I am one of the lucky ones.

It is estimated that 85% of disabled people are either unemployed or employed in occupations that pay below the poverty line. Of this 85%, it can be estimated that almost half became disabled due to an impaired driver.

There is an opportunity here to fine-tune Bill C-16. I would ask you to think of the victims when you have completed your work.

Thank you.

¿ (0930)

The Chair: Next, from the Canada Safety Council, is Mr. Emile Therien, please.

Mr. Emile-J. Therien (President, Canada Safety Council): Good morning, Mr. Chair, members of Parliament, and observers.

Before I start my presentation, I think I'd like to circulate this and make sure I get it back. It's an article from the Globe and Mail today: “A bleak past, a future that's crystal clear”. It was on the front page. I think it will touch upon what we'll get into later. If you haven't seen it, I would encourage you to read it either later or now.

The Canada Safety Council has serious concerns that the amendments to the Criminal Code proposed in Bill C-16 regarding drug-impaired driving are premature and that they stand in the way of more effective countermeasures. We believe that precautionary action is needed now, but that the priority must be public safety and not criminal sanctions. In the interest of public safety, we urge the government not to introduce these amendments to the Criminal Code at this time.

I'd like to start by reviewing our general concerns about this particular legislation, or Bill C-16. The first thing is that a very wide variety of illegal substances can impair driving ability--not only cannabis and cocaine, but also medications. Impaired driving legislation must deal with all potentially impairing drugs. However, some prescription medications are known to have a greater effect on driving ability than cannabis, or pot. This creates enormous complications.

Next is a lack of defensible criteria. A physical roadside test may not always stand in a criminal court, and I think Neil alluded to that, so body fluid tests will be needed. Zero tolerance, or arbitrary levels will simply not suffice. Defensible criminal impairment levels must be set for all potentially impairing drugs and combinations thereof. This is a mammoth task that will require evidence and research that simply is not yet available.

Then there is the fact that some drugs can be detected in the body long after their effect has worn off. For example, cannabis can be detected in the body for up to four weeks, although its impairing effects simply do not last. Measurement is another major concern. If and when criminal impairment levels are set, tools must be approved to measure levels for all of them. After that, police must be trained to use these tools. This whole process could take years because the evidence produced must meet the rigorous demands of a criminal court.

Until such time as these concerns are resolved and addressed, we recommend that measures be taken outside the Criminal Code and in conjunction with Canada's strategy to reduce impaired driving, which goes by the acronym STRID. STRID is coordinated by the Canadian Council of Motor Transport Administrators, commonly called CCMTA, which receives its mandate from the Council of Ministers Responsible for Transportation and Highway Safety across this country.

Transport Canada is a member of CCMTA and a strong supporter of STRID. With leadership from STRID, Canada saw a 27% drop in road fatalities involving the drinking driver between 1995 and the year 2000. This is very impressive progress, especially when you consider that during the same period, U.S. impaired-driving fatalities did not go down at all. They hit the wall.

The 2010 Canadian target is a 40% decrease in the percentage of road users fatally or seriously injured in crashes involving drinking drivers. STRID enjoys a high level of commitment and collaboration among jurisdictions right across this country. This excellent synergy has developed over the years, and I don't need to tell you that it far exceeds that in other areas where the federal, provincial, and territorial governments try to work together.

We would like to think Bill C-16 is motivated by a desire to reduce the incidence of drug-impaired driving. If that is so, we urge Justice Canada not to take unilateral action. Introducing new criminal drug-driving legislation outside the framework of STRID may very well create more problems than it solves. The Criminal Code is not the only legislative tool available to deal with drug-impaired driving in this country. The federal government shares responsibility for impaired driving with the provinces and territories.

We commend the government for promising millions of dollars to train police officers to detect drug impairment. While this funding is proposed as part of Bill C-16, the training is urgently needed now. We urge you to proceed with this investment, aside from Bill C-16. We would like to draw to your attention--I think this is very important--that more and more impaired driving cases are being pleaded outside the Criminal Code across this country. In British Columbia, one out of every five charges for impaired driving results in a guilty plea to a lesser offence under the Provincial Highway Motor Vehicles Act.

¿ (0935)

There are good reasons for this de facto decriminalization, but we will not go into them at this time. By expanding the use of the Criminal Code, Bill C-16 is a failure because it is ignoring this important trend right across this country.

Provinces and territories require physicians to report drivers with impairing medical conditions--for example, dementia--so that ministries of transportation can impose driving prohibitions. These suspensions remove potentially dangerous drivers from the road. They provide a very effective warning without a criminal record or a very costly criminal court case.

Under highway traffic codes, most Canadian jurisdictions impose 12- to 24-hour suspensions on drinking drivers who are below the criminal limit of 0.08. When alcohol is involved, police can immediately suspend the driver's licence of an individual under the provincial highway traffic safety act. However, the suspension may not be classified as an offence or a violation. This type of suspension could be adapted for impairment by drugs very easily. A ticketable offence would increase the real and perceived consequences and enable authorities to maintain records on offenders.

The Canada Safety Council--and I think we go back to more than a couple of years now--has encouraged provincial and territorial governments to impose immediate licence suspension on drug-impaired drivers. For example, police with reason to believe that a driver is drug impaired should be able to suspend that driver's licence under provincial traffic safety codes. This is not reinventing the wheel. If alcohol is also involved, action would depend on the BAC.

Now I would like to talk about cannabis. Bill C-16--I think Professor Boyd alluded to it--looks a bit like it's intended to appease opponents to Bill C-17, especially, as just mentioned, because it is being proposed outside Canada's national impaired driving strategy. The fact that a significant number of Canadians use cannabis and some drive under its influence has apparently raised some fear that if Bill C-17 becomes law, there may be an increase in cannabis-impaired driving. That is a very large assumption.

In January 2004, legislation somewhat similar to Bill C-17 came into effect in the United Kingdom. There is no evidence to date that the U.K.'s reclassification of cannabis has led to such an increase. Canadian policy-makers should track the U.K. experience.

Cannabis is without question an illegal substance. It will remain illegal if Bill C-17 becomes law. The real problem is that so many are using it, especially young people. Its negative health and safety effects extend far beyond driving. A strategy is needed to reduce cannabis use, and it must focus on youth or young people.

That said, cannabis is the most commonly detected drug, other than alcohol, in fatally and seriously injured drivers. In about half of all the cases, alcohol is also present. To date there is little evidence that drivers who have used cannabis on its own are more likely to cause crashes than drug-free drivers. Cannabis has a very different effect from alcohol--and I have never touched it, so....

Pot users are acutely aware of their impairment, and some compensate by trying to drive more cautiously. A cannabis-impaired driver has less ability to keep in the centre of the lane, maintain a constant following distance, and make quick decisions about manoeuvres such as passing. Faced with an unexpected event, the driver may find it very difficult to react quickly.

Alcohol use carries a higher crash risk than cannabis. Drinking drivers show more risk-taking and aggression in their driving, including speeding; have little insight into their impairment; and simply do not try to compensate. For alcohol, levels of impairment and crash risk have been correlated with specific concentrations in the blood.

No such correlation is available for cannabis, although research suggests that the effect of cannabis use on driving is related to the dose. Assessment is complicated by a wide variation in the potency of cannabis.

¿ (0940)

Research indicates that recent use of cannabis may increase crash risk; past use of cannabis does not. The problem is that the active ingredient, THC--and I won't spell that word out--stays in the body for up to four weeks, even though its impairing effects simply do not last. Research is also finding that habitual use of marijuana is related to car crash injury.

Few road fatalities test positive for THC alone. Most often, alcohol is also present. This combination produces severe impairment and dramatically increases the risk of crash. Nevertheless, fatality statistics do not support the apparently arbitrary proposal to lower the legal blood alcohol concentration to 40 mg of alcohol per 100 ml of blood in combination with cannabis.

Roadside breathalyzers provide an easy, effective, and convenient way for police to detect and measure the presence of alcohol. At present there is no reliable, non-intrusive rapid roadside method to test for cannabis. Even if such a test were available, a defensible criminal limit would have to be set.

Conviction under the Criminal Code of Canada, as you are aware, requires proof beyond a reasonable doubt, so Canadian legislators must weigh their alternatives very carefully. In the absence of definitive research on how cannabis use relates to road crashes, court challenges may hinder conviction in criminal cases.

Now there's a huge issue of impairment by medication. Canadians over age 65 take an average of nine medications daily, including prescriptions, over-the-counter, and herbal. This is information from McGill University.

In particular, certain drugs prescribed to combat anxiety and insomnia among seniors have side effects such as drowsiness, impaired motor function, and confusion. Studies have found a significantly higher crash risk in people taking these drugs. The impairment may even be higher than that from cannabis.

Medications that slow a person down also reduce the ability to make decisions and process information rapidly. Seniors taking painkillers such as those containing codeine may experience sedation and very mild impairment.

Even over-the-counter drugs can reduce driving ability. Antihistamines can cause drowsiness and poor concentration. Tranquilizers or cold remedies, such as cold tablets, cough syrup, and sleeping pills, can reduce driving ability. Combinations of medications can also produce unexpected side effects and bad reactions.

Consuming alcohol with medications is very risky, especially for seniors, because the body can't as easily metabolize it--I'm talking about alcohol. The federal government must seriously assess whether it wants to criminalize persons--

The Chair: Mr. Therien, could I ask you to wind up in the next 30 or 45 seconds?

Mr. Emile-J. Therien: Yes.

The federal government must seriously assess whether it wants to criminalize persons, many of them seniors, who drive under the influence of prescribed and over-the-counter pharmaceuticals.

Currently, about 20,000 human drugs are available in this country. To identify those that can impair driving, alone or in combination with other substances, and then set defensible criteria for each and approve measurement tools poses a great challenge.

Due consideration must also be given to the fact that maintaining a driver's licence is an important issue of independence for older Canadians, especially those who have driven for most of their life. We have made recommendations, and we'll discuss them later, because we're talking about administrative licence suspensions.

I'll cut right to the chase here.

In conclusion, Bill C-16 looks like a typical quick fix. It seems to be driven by political expediency. It ignores key factors such as enforcement of existing laws, the underlying cause of the problem, and jurisdiction. It lacks a basis in credible research and analysis of the situation as a whole. Please do not proceed with this legislation until the necessary groundwork is in place.

Thank you. I'm sorry I went over time.

The Chair: Thank you, Mr. Therien.

Mr. White, for five minutes, please.

Mr. Randy White (Abbotsford, CPC): I'd like to take five on that last presentation, but I'd better hold my piece on that one until the last part. I'm a little bit more than surprised that the Canada Safety Council would say to keep the status quo, don't go any further, and no amendment is needed at this time on the assessment of impaired driving. Coming from that organization, it very much surprises me, but I'll get back to that in a minute.

I want to ask Dr. Boyd something, because Neil and I go a long way back on committees and debates around this country.

Neil, first of all, Bill C-17 is a relatively insignificant component of the national drug strategy. That's actually one of the reasons I've been holding the line on it. I think the decriminalization of marijuana, no advertising and no promotions about drugs in this country, money spent on crystal meth, and dealing with those kind of things in a global manner is irresponsible. We should refuse to move off Bill C-17 and that position.

I find there's a disconnect between what happens on the street and what happens in the courtroom. No matter what kind of assessment process is going to be put in place, and there will be one put in place, with all the assessment that is being done, you get in a courtroom and it seems to fall apart.

I've seen, as I'm sure you have, records of individuals with 10, 20, 30, 80, and 100 convictions, and more than 100 in some cases. For a hit and run, the maximum penalty was five years, but today the penalty for leaving the scene of an accident is now down to two years or less.

I'd like you to express what you think the outcome of this whole assessment would be in a courtroom. I know there's going to be wrangling of charter rights and all that stuff, but are we going to achieve some semblance in this country of the judiciary in fact acknowledging that this is a problem?

We have to deal with it fairly and consistently. We have to show people out there that driving while impaired is a problem, and they're going to deal with it.

¿ (0945)

Prof. Neil Boyd: Well, I think the problem you face is that most impaired and 0.08 charges and instances of that kind of behaviour will never get to court. That is for a variety of reasons, because of the elaborate case law that we've constructed.

As I said during my presentation, one of the things that distinguish impaired drivers from other people before the courts is that some of these people have substantial resources. Even if they don't have resources, they are certainly prepared to spend pretty much every last dollar they have to avoid criminal conviction and the stigmatization that results. They do not resemble other people charged with criminal offences, as a category. For that reason, we have an enormous body of law devoted to the defence of impaired driving. As a consequence, police officers have been forced into situations where they find it simply more politically, economically, socially expedient to issue 24-hour licence suspensions.

I might say that one of the conversations we had before the meeting was that it might be more effective if those licence suspensions were for 48 hours or 72 hours. My response is that given the reality we face today—not in any kind of ideal world, but the world in which we live—licence suspensions for 48 hours or 72 hours might be a more practical way of dealing with this problem, rather than pretending that we're going to get any significant changes to the kinds of penalties that exist in criminal court.

It's not clear what prison does to people and, even more generally, that the specific or general deterrents will be well served by increasing prison terms. We don't get there in the first instance, so it doesn't really matter much in any event.

Mr. Randy White: Okay.

I guess, Mr. Therien, it's time you and I had a talk. The Canada Safety Council is one of the organizations that I thought would have come here and said that we need assessment, and we should get on with this and move in the right direction. But I hear you saying that there should be no amendment at this time, which you did say for assessment. The reasons you use are about the complications because of subscription drugs, body fluid tests, the length of time for drugs to wear off, training difficulties, and court challenges. Of course those things are going to happen, and quite frankly, those things happened when the laws for drunk driving were changed.

¿ (0950)

The Chair: I'm sorry, your time is up. Could you ask the question?

Mr. Randy White: My question is this. Could you further justify the Canada Safety Council's position of no change?

Mr. Emile-J. Therien: We're not saying no change. We're saying change in time, after a lot of the basic research and other information is in place. That's what we're saying.

Mr. Randy White: How long?

Mr. Emile-J. Therien: Well, how much do governments want to spend in this country in terms of resources? The U.K. went this route and has done it. We have a lot to learn from the European Union, not very much from the Americans, so let's get out there and do it.

The Chair: Thank you, Mr. Therien.

Mr. Marceau.

[Translation]

Mr. Richard Marceau (Charlesbourg—Haute-Saint-Charles, BQ): Thank you very much, Mr. Chairman. Thanks to the witnesses for coming here and presenting their views today.

Professor Beauchesne, my first question is for you. As your colleague Mr. Boyd said, three steps are established by Bill C-16. You told us, among other things, that we should remove the third step, that is to say the drug test, which, from a neophyte's standpoint, appears to be the most objective of the three tests suggested. Wouldn't removing an objective test add uncertainty to the act and make it harder for the Crown to meet the “beyond a reasonable doubt” test?

Prof. Line Beauchesne: Look at the yellow pages in the City of Ottawa telephone directory and see how many pages there are of lawyers specialized in impaired driving, and you'll have an idea of the millions of dollars that can easily be spent if you extend that to other types of drugs.

As the Canada Safety Council people pointed out, as a result of the many drugs that can be taken in pharmaceutical form, we run a risk of doing two things. First, we risk randomly choosing certain drugs, and we know very well what clienteles and drugs will be targeted, which I find entirely discriminatory. Second, we don't currently know how those drugs affect the body or driving ability, since the drug stays in the body longer than the effect of the active ingredients of the drug. So it's not objective.

Let's consider cannabis as an example. If you're a regular cannabis user and you stop using it, cannabis can stay in your body for six to eight weeks. Let's suppose you're tested. The test, which is perfectly objective, shows that you used cannabis in the past few weeks. That provides absolutely no information relevant to impaired driving. The only objective fact is that there are metabolites in your body showing that you used the drug at some point.

Why spend millions of dollars on legal battles you're going to lose? If I were a young lawyer and you passed this bill, it's the first field I'd choose. It's easy to rebut all these things with scientific studies and it should be very profitable in view of the clientele in question. I think we'd do better to invest this money in prevention, by expanding our work to include young people, and to keep other tests, which admittedly aren't perfect, but which, with better prevention, can get the message across.

You must always beware when you consider a bill in practical and logical terms. It's a bit like saying we want to ban skiing because we know people who engage in high-risk behaviour. We may want to prohibit all behaviour by passing laws. However, preventing the cause of the risk, regardless of the type of behaviour, is still what's most effective.

Mr. Richard Marceau: Thank you.

Mr. Therien...

¿ (0955)

[English]

Mr. Emile-J. Therien: He'll respond...[Inaudible]

[Translation]

Mr. Richard Marceau: All right.

Mr. Marchand, I'm going to ask you to put yourself, for 30 seconds, in the shoes of a politician who's facing a camera and has to get his essential message across in one sentence. Is your organization telling us not to pass Bill C-16, to leave the Criminal Code as it is because it's working well, and simply to conduct awareness or publicity campaigns?

Mr. Raynald Marchand (Manager, Traffic Safety and Training, Canada Safety Council): No, that's not exactly the case. In the fight against impaired driving, the Canada Safety Council believes that the most useful tool for police officers is the traffic code. This is a tool that police officers can use in the field to suspend offenders' driver's licences for periods from 48 hours to one week, through the training they've received. The person always has the opportunity to go to court, if he or she disagrees. These are tools that can be used in the field.

The CCMTA recently submitted a proposal on the 0.05 rate to try to standardize and impose penalties of up to seven days or even 14 days, which would appear on the driver's licence. After a second conviction, people would have to submit to a test to determine whether they are dependent on alcohol or drugs and, if necessary, take a rehabilitation program.

We believe this is prevention. It's much faster and more effective than going to court under the Criminal Code. It's not that we didn't want things to change, but we believe that the tool to use to get there is the traffic code, not the Criminal Code.

[English]

The Chair: Thank you, Mr. Marceau.

Mr. Comartin, please.

Mr. Joe Comartin (Windsor—Tecumseh, NDP): Thank you, Mr. Chair.

Thank you all for coming.

Mr. Doerksen, let me start with a quick comment. As you go away today, I don't want you to feel that this committee isn't looking at this issue quite seriously. On a personal note, my son was a victim of an impaired driver eight years ago this month. He lost the use of his right arm and he lives every day with the possibility of having to have it amputated. And there are other stories that could be told around the table of people with close family members or friends who have been victims. So we are treating this seriously.

On the same file, Professor Boyd, in terms of what you and Mr. Therien said, he was also a double victim because the police did not take that breath sample from the other driver in spite of the fact that he was seriously injured and the other driver had turned left in front of him, and in spite of the fact that the Attorney General of Ontario and our prosecutors and our police had made it clear that in a serious incident like that.... I sat on the phone when I got the call at midnight, listening to the police interrogating him and taking him through the process of how much he had had to drink--and in spite of that, they did not charge him. They didn't charge him--and I think, Mr. Doerksen, this is back to the point I think you're raising of wanting additional penalties--because they had a system. That officer was an experienced police officer. I checked his record subsequently. He had about 10 years on the force and had been in traffic a lot, but he clearly knew what he was going to be faced with if he laid the impaired driving charge.

So it does have a direct practical impact. We will be treating this seriously, but I think we're also trying to keep an open mind on what is the best way to reduce. Prevention would have been much better, in terms of results, for you and for my son.

Mr. Therien, are there things we can learn from the U.K. experience when they went this route, just from the perspective of trying to set up a scientific test for cannabis or THC?

Mr. Emile-J. Therien: The European Union is working on that. They're optimistic that within two years they will have it. It will be called a legal threshold. They are optimistic and they're looking at 0.08%. You've got to remember, though, that there's a significance difference; we're the only country in the western world that criminalizes impaired driving. The Americans don't, unless there's an injury or fatality. In the European Union I think very few countries have criminalized to the extent that Canada has.

I think it's also important to realize that in this country, at the time of an impaired driving incident involving an injury or a fatality, the person driving is two to three to four times over the limit. What we're talking about here is what we call the chronic offender. We've made significant progress, and we talked about this earlier. The problem we have is a chronic offender. We have funded, at the Douglas Hospital in McGill University, a study that looks at chronic offenders. These people appear before a judge seven, eight, nine, or ten times. They go out there and do it again as long as they have car. And they're really looking....

How do we deal with these problems? We've seen so far that they're alcoholics. Does the court system help them in their addiction problem? Obviously not. They are coming up with some type of...I don't know. Whatever they come up with, it will say we have a real problem--

À (1000)

Mr. Joe Comartin: Mr. Therien, I'm sorry to interrupt you, but I've only got five minutes. I want to pursue this point.

We've had police officers here several times now on THC.

Mr. Emile-J. Therien: THC?

Mr. Joe Comartin: Yes, THC.

You and Madame Beauchesne have both made the point that it stays in the bloodstream for four, six, or eight weeks. The evidence we had from them was that they can test it now by way of a blood sample to determine the active ingredient causing the impairment effect. They can test that now, as long as the test is done within a short period of time of the driving, because that particular ingredient of THC lasts in the bloodstream, I think they said, for less than 24 hours.

Mr. Emile-J. Therien: I'm not aware of that, but if they have that information, they should bring it forward.

Mr. Joe Comartin: The point I want to make is, do you know if the European Union or England have done work along the same line?

Mr. Emile-J. Therien: I'm not sure of the details.

Ethel or Ray, do you know? No.

Prof. Neil Boyd: I think there is some evidence that those kinds of tests are done through blood samples, so again we're looking at another tricky obstacle in terms of enforcement.

Mr. Joe Comartin: I don't believe we have witnesses scheduled on the European Union experience, and perhaps we should be considering that.

The Chair: We will make some inquiries in that respect.

Mr. Macklin, five minutes for questions and answers.

Hon. Paul Harold Macklin (Northumberland—Quinte West, Lib.): Thank you very much, Mr. Chair.

Thank you, witnesses, for being with us.

Let me also pursue this with the Canada Safety Council. Looking at the material you brought forward, surely you're not really suggesting what you state on page 1, that “Once criminal impairment levels have been established for all potentially impairing drugs” we would go forward. Do you really mean that?

Mr. Emile-J. Therien: No.

Hon. Paul Harold Macklin: No, I didn't think so.

Mr. Emile-J. Therien: If you look at the big picture, that's what we're looking at.

Hon. Paul Harold Macklin: No, because that would be beyond one's reasonable capacity, I think, to pursue.

Secondly, on page 2 of your brief, you refer to the DRE evaluations on detecting drug impairment and you go on to say that “The new funding is proposed in conjunction with Bill C-16”—which I think you're happy about—“but the training is urgently needed aside from any legislative agenda”.

Well, one of the essential issues here is that right now the officers don't have the capacity to compel the test. Where does that leave us if we have experienced people who can't compel?

Mr. Emile-J. Therien: If you put it with what we're saying about administering licence suspensions, this would give the officer an extra tool to train as a DRE expert to actually identify somebody on pot or some other drug.

Hon. Paul Harold Macklin: But if we don't have this legislation, we're unlikely to be able to enforce the field sobriety test that the DRE officers need to do, unless it's voluntary.

Mr. Emile-J. Therien: To express myself correctly, we have said that the administration of the legislation in the provinces and territories in setting up licences could be adapted for impaired driving.

Hon. Paul Harold Macklin: Well, what's wrong with adapting by doing this piece of legislation right now and giving officers the capacity to do it under the Criminal Code?

Mr. Emile-J. Therien: Well, I think Professor Boyd and the other criminologist alluded to the fact that there's a lot of research and groundwork to be done before we go there.

Hon. Paul Harold Macklin: No, but just to get the ability of the police officer to compel a person to participate in the field sobriety test.... I mean, you've got to have that capacity. Right now, we don't have it.

Mr. Emile-J. Therien: Because you don't have any DRE-trained police officers out there.

Hon. Paul Harold Macklin: No, no, because we don't have the legislation.

So you still don't believe we should go forward with this piece of legislation to establish that capacity?

Mr. Emile-J. Therien: No, we are saying that retraining should be done outside of this legislation.

Hon. Paul Harold Macklin: Mr. Boyd, you look like you want to add something here.

Prof. Neil Boyd: I do think you should go forward, but you should excise proposed subsection 254(3.3) from the legislation, which is the power to request blood or bodily fluid.

I think you have the rest of it in place—the ability to compel the standardized field sobriety test, the ability to compel appearance before a DRE—but the problematic part, which will result in criminal conviction, is the proposed section 254(3.3) on requesting blood or bodily fluid. That might be put in place later. I think you can go forward with this legislation without that in there, and then, as Mr. Therien indicated earlier, if there is evidence at a future point of a clear way of dealing with THC, you can amend the legislation to add that section.

I think this is the section that's premature; the rest of it is fine, it seems to me.

À (1005)

Hon. Paul Harold Macklin: But is there anything wrong, as you look at it, in having the subsection there even if the officer chooses not to use it?

Prof. Neil Boyd: Well, I think the problem with having it there is that it's a pipe dream to use Bill C-17. There's not really any evidence to suggest that you can use it properly.

You can actually accomplish the ends of the legislation in large measure without the proposed subsection 254(3.3), and at a future date, you can make amendments to provide that addition. I think that would be the more prudent way to proceed.

Hon. Paul Harold Macklin: But you clearly are in conflict with our other witness here in saying we should get the authority for the officer to make that demand.

Prof. Neil Boyd: Perhaps, yes.

Mr. Raynald Marchand: We're not necessarily in conflict, from the standpoint that we believe the officer should be trained, should be able to make the assessment, but the penalty in the regulations should be under the highway traffic code, where a suspension of driving privileges can be for 48 hours, 72 hours, or seven days, but also with mandatory assessment. It goes on the driving records; insurance companies have access to it; the person has to go to assessment. If they are deemed to be dependent on drugs or alcohol, then remedial action can be taken.

We know in the case of first offenders that many of them never come back into the system. We feel this can be handled outside the Criminal Code.

Hon. Paul Harold Macklin: I have another question concerning page six of your material. You refer to wanting to criminalize persons, many of them seniors, who drive under the influence of prescribed and over-the-counter pharmaceuticals.

We're already there. The question is, how do we detect and how do we ultimately prosecute? Our current legislation says you're not to drive while you are impaired by a drug or alcohol.

What are you actually seeking there?

Mr. Emile-J. Therien: The issue is there. We need a massive public education and public awareness program directed at seniors to tell them about the implications and consequences of being on legally prescribed drugs and driving. It becomes an especially complicated point in rural areas, because there's no public transportation for these seniors to get around. We're sitting on the horns of a dilemma that's a great challenge for society

Hon. Paul Harold Macklin: Mr. Doerksen, though, is the victim.

The Chair: Mr. Warawa.

Mr. Mark Warawa (Langley, CPC): Thank you to the witnesses for being here.

My questions will focus on the comment that the taking of a bodily fluid is intrusive. I'll begin with playing out a typical scenario.

A police officer will not be randomly pulling over everybody on the road. A typical scenario would be somebody driving erratically, putting the community at risk, and the person would then be pulled over by the police officer. There would be a determination by that police officer whether or not there is a possible impairment. It could be by lack of sleep; I would acknowledge that. It could be prescription drugs. It could be cognitive skills. It could be impairment by alcohol; you could probably sense it on the person's breath. Or it could be impairment by a drug.

If the officer deems that there is an impairment, possibly by drugs—if it was crystal meth, marijuana, or whatever it is—he or she would then require that person to be brought back to the detachment, and a drug recognition expert, a DRE, would determine further whether or not it was necessary to go to the third step and take a body fluid. The whole goal is to make our roads and communities safer, to protect people so they are not injured. I think that is a laudable goal.

My question is, what is intrusive about somebody who has gone through the first two steps? There is an impairment, and they're dealing with a drug recognition expert. That expert has determined that there is a very high likelihood that the person is impaired with an illegal drug. They're not going to be asking seniors to be providing a body fluid sample. We are talking about a very high likelihood that the person is impaired with an illegal drug. What is intrusive about that?

À (1010)

Prof. Neil Boyd: In the way you put your question, it is fair to respond that there's nothing intrusive about it. But it's not the way in which the system works.

As I said earlier, there's an elaborate body of case law where cases have been thrown out because the officer could not remember the architecture of the place in which he read the accused his rights.

We have bent over backwards for the rights of impaired drivers, and I don't see any likelihood, given the socio-economic context in which we live, that this is likely to change. The second point is that.... I would be inclined to support what you're saying totally if we had a clear scientific basis upon which to proceed; that is, if we had what we have with alcohol. But we don't have that.

Again, the remark I made earlier with respect to proposed subsection 254(3.3) is that you shouldn't be putting it in legislation when you don't know what the standard of criminal impairment is. As a final point, I think you have to acknowledge as well that there is a difference between taking a breath sample and taking a blood sample, and that the courts will determine that there is a higher threshold. Given the way in which the courts have dealt with impaired driving to date, I think it's a practical matter. Why put something in place that isn't going to work and that we don't have the scientific data—

Mr. Mark Warawa: I'm sorry to cut you short, but my time is limited.

There was a forum on impairment two years ago, hosted by the superintendent of motor vehicles in British Columbia. Did you attend that?

Prof. Neil Boyd: I didn't.

Mr. Mark Warawa: There was a fatal crash two years ago in Langley, on 264th Street, just north of the freeway. Two young men in the back seat were killed. The driver was impaired by marijuana, but was not able to be charged with impairment because we didn't have something like section 216. It would have solved that problem.

Again, on being able to take body fluids and having a threshold--we do have that with alcohol--I agree we need to arrive there, but I'm still having difficulty with why it would be intrusive to take a body sample. I don't believe in all these cases we're going to be spending millions of dollars to go to court and lose anyway. I think this is a tool to be provided to the police to determine whether or not that person should be taken off the street.

Prof. Neil Boyd: But again, we don't know what we're determining. Once we know what we're determining, I agree with you.

With respect to the crash, that crash and that loss of life might have occurred irrespective of the kinds of penalties we put in place. Unfortunately, the reality is, as Mr. Therien noted earlier--and this is true of all criminal offences--that a small number of offenders create an enormous amount of harm.

The Chair: Mr. Ménard.

[Translation]

Mr. Serge Ménard (Marc-Aurèle-Fortin, BQ): First of all, Mr. Doerksen, even though I won't be asking you any questions, I want to tell you that we sympathize with you and the many victims of impaired drivers. We're honestly looking for the most effective way to reduce the number of these kinds of accidents.

I'll speak instead to Mr. Boyd and Ms. Beauchesne, because we have little time at our disposal. I took the bar admission exam in 1966, and I practised criminal law throughout my career before entering politics 10 years ago. So I'm less familiar with the case law over the past 10 years. I was an attorney for the prosecution and the defence, most of the time for the defence, and there have always been offences for driving with faculties impaired by alcohol or drugs. The courts decided very early on that the combined effect of the two or the combined effect of fatigue and alcohol or drugs could also constitute an offence. Since we have a system of freedom of proof, evidence must be relevant. All relevant evidence is admissible, unless it is excluded for another reason. We looked for means of proof.

I saw so many trials in which police officers offered the description, approved by the Supreme Court nearly 30 years ago, of a man who drank without... The advantage here is that we have objective proof on an important aspect of the charge.

I understand what you're saying about drugs and marijuana in particular, which stays in the body for a long time, but, before undergoing the marijuana test, isn't there still the erratic driving test, followed by reflex tests? The main reason why driving with faculties impaired by alcohol is prohibited is that it slows down the reflexes and, consequently, can cause accidents. It also affects judgment, and this can also apply to marijuana. So we're talking about a person who drives dangerously and about tests that show that his faculties are impaired, probably by something. The results of the test establish that. From that point, as complicated as the evidence is, the purpose of the act is nevertheless for us to have objective proof of what causes that erratic driving.

Personally, on first glance, I think we've made a laudable effort to combine the need to obtain objective proof with other important principles of law, such as minimum intrusion and so on. I'd really like you to explain to me why that would be pointless.

As for costs, Mr. Boyd, I disagree with what you say and it's corollary. People who commit criminal acts drive while impaired more often than people who don't commit such acts. However, I agree with you — and God knows I took advantage of it — that bad laws make fortunes for good lawyers. Some people are ready to go to considerable expense, but let me tell you that the defence doesn't get 100 percent of the results. So there's nevertheless a cost and a consequence. Why are you telling us that we're wrong in trying to get objective proof on an important aspect?

À (1015)

Prof. Line Beauchesne: The issue is to reduce the number of people who drive while impaired as far as possible. To restate what Neil said earlier, I'd say that the deterrence studies show that the vast majority of people are more encouraged to change their behaviour when they are certain that a penalty is applied, even if it's suspension of their driver's licence for a week. That modifies their behaviour much more than a penalty that is unlikely to be applied or is applied infrequently or in a variable or random manner. However, you're right that a minority of people take risks, regardless of the penalty.

So we have two things. First, we have to find a mechanism to make the majority of citizens, regardless of the causes, ask themselves whether they are in a condition to drive. Second, for the minority, the validity of current tests becomes a question if you consider the scientific studies. So we have two factors here.

However, we shouldn't focus on a small number and forget the many impairment cases. The most effective penalty we know of right now is suspension of the driver's licence. If that penalty is rigorously applied, it will affect the vast majority of citizens who are very much afraid of losing their driver's licences.

Mr. Serge Ménard: Yes. That's also why they hire good lawyers when they get caught.

Prof. Line Beauchesne: No. They don't dispute the penalty if it's for one week.

Mr. Serge Ménard: I entirely agree on your criminological principles, and God knows I've made efforts to sell them here, in particular to our colleagues from the West.

That's not what I'm asking you. You seem to have objections...

[English]

The Chair: Mr. Ménard.

[Translation]

Mr. Serge Ménard: Why are you opposed to objective proof on such an important aspect?

[English]

Prof. Neil Boyd: I think it's laudable to attempt to achieve good standards of science--objective data. I'm on the side of aggregate data. I don't like anecdotal data as a way of understanding the social world.

When I look at Bill C-16, I applaud the first two prongs of the test. I think there is clearly an attempt, in what will be the regulations, to have these standardized field sobriety tests, and to have the drug recognition experts trained in much the same manner as you have the breathalyzer technicians trained. My problem is that you do not have an objective science for your third prong. Once you have that objective science in place, by all means go ahead. I'm very much in agreement with you.

My problem is with one particular aspect of this legislation, and that is the power to compel a test of bodily fluid when you don't know what the meaning of that result will be. Until you know the objective science that underlies that, it seems to me there isn't a point in compelling that test.

À (1020)

The Chair: Thank you, Mr. Boyd.

Mr. Cullen, please.

Hon. Roy Cullen (Etobicoke North, Lib.): Thank you, Mr. Chairman, and thank you to all the witnesses.

The testimony today has raised a number of questions in my mind, and there's not enough time. But I just want to come back to Mr. Boyd. On the taking of a bodily fluid, you're saying you see it not so much as intrusive or a significant hurdle, but it's what you do with it afterwards when there's no objective. Is that what you're saying?

Prof. Neil Boyd: That's right. But I do think we have to be cognizant of the reality that the courts will impose a different standard for the taking of a blood sample than they do for the taking of a breath sample.

Hon. Roy Cullen: You suggest that we proceed with the first two aspects, but that we drop the bodily fluid test requirement. What would that lead to? Would that be enough to lay a charge or make a conviction?

Prof. Neil Boyd: No, I don't think so. I understand that reality. Mr. Macklin was questioning how we are going to compel people to take these sobriety tests, how we are going to compel people to go to the drug recognition experts. I think you need that part of the legislation.

But why be less than straightforward with Canadians and put in place a measure that you know--in terms of the minister's own words--has no consensus with respect to the scientific data? I don't think there's value in enacting legislation when you don't have a standard to apply.

Hon. Roy Cullen: This is maybe a technical question, but I'm sure you have some information or knowledge of it. Help me through this.

When you test for alcohol you can take a blood test, it seems to me, and you can say that it's over 0.08%, or whatever. That has to do with the alcohol content. If you're testing someone who's had a mix of alcohol, maybe some prescription drugs, maybe a bit of cocaine, or maybe a couple of joints of marijuana, is there some generic test that shows they've reached a certain point where, whatever the combination is, there's a problem, or do you have to test for each individual...? I'm not sure I understand the test routine.

A voice: Are you talking to us?

Hon. Roy Cullen: I'm asking anyone who knows about this.

Mr. Emile-J. Therien: We call them RIDE programs in Ontario. I forget what they call them in western Canada. They're spot checks.

When somebody at roadside is given the breathalyzer and has a blood alcohol level of 0.08% or above, do you realize the complications of what that police officer goes through? It's a minimum four to six hours of his particular time, and normally when they catch one person at 0.08% or above, the RIDE program comes to an end, because all officers are involved. Unless you have legal thresholds for pot and other things, I think we're going to have the same problem. We need that--

Hon. Roy Cullen: That wasn't really my question. Maybe it's too technical for this group, but how do you test for a whole mix of abused--

Mr. Emile-J. Therien: They don't.

Hon. Roy Cullen: So you see someone who seems to be acting erratically, you do a sobriety test, and then let's say you proceed with a blood sample. If they've had a mix of alcohol and drugs, what is the technical way of dealing with that and to conclude that there's an excess of substances in the person's bodily fluids?

Mr. Raynald Marchand: Essentially, what you do as an officer is suspend the driver's licence. What we would like to see under the Highway Traffic Act is a penalty of maybe 72 hours, a recording, and then further to that--

Hon. Roy Cullen: I'm coming to that. I guess I'm talking to the wrong group. It's more technical.

Mr. Raynald Marchand: Yes, but further to that, we believe in assessment. So if the person already has one on their driving record, they would go to assessment. Then if the person is a user, there'd be rehabilitation.

Hon. Roy Cullen: I'm sorry, that's not my question and I have limited time.

I'd like to come back to this issue of the chronic offender. That, to me, is where we need to be focusing our attention. We read in the paper that someone has done this time and time again. Their licence has been suspended, and they keep doing it. Are the sanctions not sufficient? Are we dealing with people who are going to drink and drive, or use substances and drive, no matter what we do? It seems to me those are the people we should be dealing with, with the tougher sanctions.

Mr. Boyd, right now the police would have the authority--correct me if I'm wrong--to do, instead of a one-day licence suspension, maybe a 48- or 72-hour or one-week suspension. Do they have the capacity to do that now?

À (1025)

Prof. Neil Boyd: I'm not clear on that, but it seems to me desirable, because one of the impacts is educative, and to some extent punitive or preventive, to get people to take home some kind of message of value. The four to six hours that the police officer might spend in terms of interrogation for 0.08% is much better spent with an administrative suspension of 48 or 72 hours. I am not sure whether that's possible, but it doesn't seem to me to be an insurmountable obstacle. It certainly would not have criminal court challenges.

Hon. Roy Cullen: But that would be under the provincial authorities, the Highway Traffic Act.

Prof. Neil Boyd: Yes.

Mr. Emile-J. Therien: You talked about the chronic offender, and I think I alluded to it in my recommendations. The Traffic Injury Research Foundation does a study every year, and it estimated--I think the last year for which the statistics were available was 2002--there were about 3.8 million incidents of impaired driving in this country every year. It reliably estimates that 4% of drivers accounted for 88% of those impaired driving incidents. So you're absolutely right, the chronic offender is the problem.

The Chair: Mr. Cullen, we will have a witness from a laboratory who may be able to answer some of the questions you have advanced.

Mr. Thompson, five minutes for the question and answer, please.

Mr. Myron Thompson (Wild Rose, CPC): Thank you all for being here.

I'm going to concentrate on Mr. Doerksen. I really appreciate your time here, and I really appreciate the fact that you're willing to work towards this cause. I think the victim's voice is probably the one voice that is least heard and understood in a lot of legislation that is enacted.

I agree with Mr. Comartin that every one of us wants to address this for the sake of protecting people. I don't deny that for a moment. It seems to me that I have to agree with some of the victims groups that I've heard. A lot of times as you deal with this, you want to get road carnage stopped as best you can. Of course drugs and alcohol is a category of its own, and Line--I'm sorry, I can't see your last name--indicated there are lots of reasons, and I agree with that.

We have to work on that all the time, but it seems there are a lot of jurisdictions that work very hard at making certain there is a deterrent to these things. It's created through the penalties that are imposed upon the people who break the law by driving under the influence of a drug or alcohol.

I was looking at this list that I've managed to keep around for a little while now.

In Canada, the first offence amendment penalty is a $300 fine, to a possible maximum five years in jail.

In Australia, the names of drivers are sent to local newspapers and are printed under the heading, “He's drunk and he's in jail”.

In Malaysia, the driver is jailed, and if he's married his wife's in jail too.

In South Africa, there is a ten-year prison sentence and the equivalent of a $10,000 fine or both.

In Turkey, drunk drivers are taken 20 miles out of town by the police and are forced to walk back under escort.

In Norway, where they've had some real positive effects in correcting this problem, the penalty is three weeks in jail at hard labour,and a one-year of loss of licence. For a second offence, your licence is revoked for life.

In Finland and Sweden, there is automatically jail for one year at hard labour.

In Costa Rica, police remove plates from the car.

In Russia, your licence is revoked for life.

In England, there is a one-year suspension and $250 fine and jail for one year.

In France, there is three years' loss of licence, one year in jail, and $1,000 fine.

In Poland, there is jail and a fine, and you are forced to attend political lectures. I find that one amazing. Punishment through listening to political lectures just blows my mind, but I think that's something a lot of our people--with all due respect to the politicians in our land--have so much ego in them that they think they have the answers for these things and that they should be the ones to lecture these fellows.

I have one more offence I want to mention and then I'll ask the question.

In El Salvador, your first offence is your last. You're executed by firing squad.

So these things are really serious, Mr. Doerksen. I want your frank, honest opinion. You've heard these discussions this morning, and you said in your presentation, “Please consider the victims in all your discussions.” Do you feel that is indeed happening or do you feel there needs to be an improvement?

I'll be frank with you, I think there needs to be a huge improvement.

À (1030)

Mr. Ed Doerksen: I would have to agree that there is a need for improvement. One of the things that struck me as being sort of strange when I did my training as a law enforcement officer with the Ministry of Natural Resources for the Province of Ontario was that we were told that court is nothing more than a game--the more points you get for your side, the better the chance you will win, regardless of the outcome. So our training as officers for the provincial Ministry of Natural Resources basically told us to look at everything we could get and make sure we had all the points over and above the person we were bringing to court. The idea was that if we looked at the courts as a place where justice would be served, we might as well go to a mental institution and check ourselves in.

Now that's what the victims are looking at. When we go to court for something, for whatever reason--to compensate our income, for example, so we can live a halfway decent life--that's what we're looking at. We're looking at how many points we can get, and the person who is being charged looks at the whole situation as if he's being persecuted, and of course he's going to go after the same number of points as well.

In reality, I don't believe the victim is being heard enough. We're hung up on technicalities. We're hung up on proceedings that have gone before. I understand the legal system, and I understand that precedent law takes place over and above a lot of other things that we feel might be more fair--fairness is something I've thrown out the window a long time ago, because there's no such thing. And I just hope, as many other people hope, I think, that there's something where the victims are going to be heard, the victims are going to be understood. Something has to go in the direction of victims, so that the victims are not only compensated for their loss or injury or their loss of work or whatever, but they can basically live a simple life.

The Chair: Thank you, Mr. Doerksen.

Mr. Comartin, last round.

Mr. Joe Comartin: Thank you, Mr. Chair.

I'm not sure, because I don't think any of you have legal backgrounds, but the--

Mr. Emile-J. Therien: There's none here.

À (1035)

Mr. Joe Comartin: You have to appreciate that the process, if we went ahead with Bill C-16, is different from the one for impaired driving due to alcohol. The test, and the result of that test, is not setting up a standard; it's simply buttressing the evidence that the police officer is going to give. So they'll charge the person with the standard impaired driving charge, and then they will use the evidence, which is admissible under Bill C-16, as evidence of impairment, but all it's doing is, in effect, corroborating the evidence of the police officer. It's not doing anything more than that, and that's all this bill is intended to do.

Having said that by way of explanation, I'm not sure I can support it.

But I want to go back to the rate of incidents, because if we're going to proceed with this at some stage, we do need to have the pre-existing evidence, the demographics of the incidence of use--for whatever drug, but I think we're focusing on cannabis. So are there any solid statistics that show what the rate is for fatalities involving just cannabis or THC, serious incidents and minor incidents? Are there studies to show that, so we can compare before and after?

Mr. Emile-J. Therien: I think if you go to the presentation we submitted today, we have some footnotes at the end on this. The Traffic Injury Research Foundation of Canada has done a lot of work on this, and they're here in Ottawa. Some of the statistics I alluded to come from them.

Mr. Joe Comartin: Generally, I think I'm right that the number of accidents as a result of alcohol is down significantly. Can anybody tell me if this is also true of cannabis, or do we know that?

Mr. Emile-J. Therien: Don't forget that at the time of the crash, if there's no alcohol involvement, there's no test. You may recall from a couple of years ago our friend up the way in Petawawa, Ontario, who had MS at the time--and I think he wanted to be charged, but anyway.... They tried to criminally charge him, and it was thrown out because there's no test for marijuana. But eventually the police went back and charged him with an infraction under the Highway Traffic Safety Act. And if you look at this case, they were quite severe. His insurance was affected, and he received demerit points.

And while we're talking about that particular case, I think a doctor eventually recommended, under a physician's right to report patients who should not be driving, that he should not be driving. He was reported to the MOT, and his licence was taken away. So look at the complications in this one particular case.

Mr. Joe Comartin: I have one final point, and again, I'm not sure you appreciate this, but going back to my initial statement, if we proceed with this but don't go into the third stage, then stages one and two have no impact at all. The procedure of wanting to use that kind of process to allow the police officer to suspend for longer periods of time is within the constitutional framework of this country in the provincial field.

Mr. Emile-J. Therien: That's provincial.

Mr. Joe Comartin: The point is that it would be useless to proceed with that at the federal level at all, even stages one and two, if I understand the law correctly.

Mr. Emile-J. Therien: Until we get an actual legal threshold and if Canada says the priority--

Mr. Joe Comartin: But if we had the threshold, Mr. Therien, we would go to the third stage as well.

Mr. Emile-J. Therien: Well, yes.

Prof. Neil Boyd: But it also may not be a waste of time or totally useless to proceed on the first two grounds in that there is some benefit in compelling the standardized field sobriety test and in going to the drug recognition experts, if only for the educational impact. It's mentioned in the legislative summary to the bill that this has to do with educating seniors about prescription drugs, for example, a wide range of people who may be helped, and there may be both a preventive impact and an educational impact.

So I don't believe that simply because there won't be criminal convictions premised on the third stage, the bill would fall and fail to be valuable simply because only the first two prongs of the test are put in place.

Mr. Joe Comartin: Understanding that there'll be no penalty consequences.

Prof. Neil Boyd: Understanding that there'll be no penalty consequences.

Mr. Joe Comartin: Thank you, Mr. Chair.

The Chair: A member from the Bloc, Mr. Ménard or Mr. Marceau.

[Translation]

Mr. Serge Ménard: Let's go back to what I was asking you earlier. I see you're opposed to objective drug tests, but I find it hard to understand why. Under the system of freedom of proof, we could very well make that proof. The advantage of the bill is that it introduces a system that should be more reliable than the one that relies on the freedom of the parties.

Prof. Line Beauchesne: But the question is this: do you want to know whether the person used drugs, be it medication, alcohol or other drugs, or whether that person's faculties were impaired?

Mr. Serge Ménard: That's a very good question. The answer is that we want to know why that person was driving erratically.

Mme Line Beauchesne: Yes, but currently...

Mr. Serge Ménard: Why do the tests that we make that person undergo show that he isn't in any physical condition to drive properly?

Prof. Line Beauchesne: The tests currently can't make that connection. All they can show is that that person has traces of a particular substance in his body. Those tests can't make a connection between his state and degree of impairment. In the current state of our knowledge, the third element adds nothing. You can tell a person that he took codeine three days ago. That doesn't tell us whether it affected his driving while he was driving. That's the state of the present tests. As long as we only have those tests, their only objective feature is that they show that a person used substances containing traces of drugs. That tells us nothing about his ability to drive at a given time.

À (1040)

Mr. Serge Ménard: It's the way he was driving that tells us about his ability to drive.

Prof. Line Beauchesne: The mandatory physical skill tests will add another element to the act.

Mr. Serge Ménard: I don't know whether you've thought about one thing that is a real concern to me, and that's physical skills tests for seniors. Police officers are already saying that a lot of people present their driver's licences with trembling hands. Contact with police officers is quite intimidating, even for citizens who feel they're innocent. Do you think that making people who are nervous, especially elderly people who regularly take medication, undergo physical skill tests is a sure way to determine whether their driving was really affected by the drugs they were taking?

Prof. Line Beauchesne: I know that we train police officers on how to calm people down and then to determine whether they are able to take the tests. So we teach them how to ensure that people are ready to take them. Preparation for the test is part of a police officer's training.

Mr. Serge Ménard: Thank you.

[English]

The Chair: Ms. Neville, five minutes, question and answer.

Ms. Anita Neville (Winnipeg South Centre, Lib.): I thought you'd forgotten me, Mr. Chair.

The Chair: I would never forget you, Ms. Neville.

Ms. Anita Neville: We seem to be at the end of the road, but I do have a few questions.

Mr. Therien, you didn't have time to complete your presentation, and at the end of it I noticed that you spent some time talking about medication. I'm wondering if any of you can comment on the effects of prescribed medication and the use of alcohol and cannabis, what the statistics are showing. We've heard references to aging populations. It's not just aging populations, but how do we treat that in the context of this bill?

You're shaking your head.

Mr. Emile-J. Therien: I guess we weren't very articulate. What we were trying to say is we don't.

Ms. Anita Neville: What should we be doing then?

Mr. Emile-J. Therien: Well, in terms of seniors--and we deal a lot with seniors--we need a massive public education campaign done through governments, federal and provincial, and pharmacists and doctors to say these are the facts, the rules of the road.

I could tell you, my father-in-law died not long ago, and he was legally prescribed; he'd drive every day. Was he legally impaired? I would think so. There are thousands of Canadians doing that, and they do it because they have to do it. It's their only source of independence--driving. But in terms of doing that, medically getting high on legally prescribed drugs, very few seniors realize what the consequences could be in terms of impairment, drowsiness, and others.

Ms. Anita Neville: Certainly for seniors and the aging population. But are you aware of the impact of prescribed medications combined with alcohol and cannabis on anybody?

Mr. Emile-J. Therien: In regard to the result of that in terms of impairment, no, but I think we refer to it. I think most people, pharmacists or doctors, would say that anything-- cannabis in combination with alcohol, or a cold remedy in combination with alcohol--is going to have a greater impact than alcohol itself. There's no question about it.

Ms. Anita Neville: Mr. Marchand.

Mr. Raynald Marchand: Because we do training programs for defensive driving professionally, we do provide in the manual itself a section on medication and we do describe various popular medications, their effect on driving, and what drivers should do. That's the part we can do to help educate.

Ms. Anita Neville: Should the penalties be the same?

Mr. Emile-J. Therien: We made reference to criminalizing seniors earlier, but is this what we want to do as a country?

Ms. Anita Neville: Mr. Boyd, do you have any comment on it?

Prof. Neil Boyd: Your question illustrates the problem of using the criminal law to respond to the kinds of difficulties we face.

À (1045)

Ms. Anita Neville: That's why I'm asking it.

Prof. Neil Boyd: I do think, again, in the case of the elderly who are using prescription drugs and posing a risk to others, the key is not to take them before the criminal courts; the key is to get them off the road. We tend not to think the same way when we look at the young man using cannabis, but in reality this is a person simply at a different stage of life using a different drug that impairs for different reasons. And if we want to make a judgment about the inappropriateness or appropriateness of that particular drug use at that particular time in life and attach criminal sanctions, we should be clear that we're doing so, because in terms of public safety, the net effect is no different.

Ms. Anita Neville: Thank you.

That's fine.

The Chair: On the next round, Mr. Breitkreuz is going to share his time with Mr. White.

Mr. Garry Breitkreuz (Yorkton—Melville, CPC): Yes, thank you, Mr. Chair.

It seems the problem some of you are having is that there is no standard, and I really question whether it is valid to treat drug impairment the same way as we treat alcohol impairment. You know, there is some cut-off there, because I've heard reports that cannabis can remain in the system for many days and suddenly show up and cause serious problems.

My question to you is, how can we arrive at a sound, scientifically based standard that you would accept that could be included in the legislation? Can we suddenly do some research to arrive at that standard? And what if it's not possible to say that at a certain level, impairment is severe enough to be a problem? Should we maybe err on the side of public protection? Do we not create a deterrent or try to improve public safety? Even with alcohol, the provinces are now changing the level at which they regard drivers as being impaired. They're changing it from 0.08 to 0.05.

Do we just say we can't get it to a standard, so we don't do it, or is there some way to arrive at a standard by which we will judge whether there's impairment?

Mr. Emile-J. Therien: May I comment? You alluded to the fact that provinces are changing from 0.08 to 0.05. They're not doing that at all; they're adopting an administrative licence suspension at 0.05. I think 13 of the provincial or territorial jurisdictions in Canada have done that, and it's been in place for more than a few years. They're not changing; they're just going to something under the provincial highway traffic safety act. I assume 0.08, criminally, will always be there.

Mr. Garry Breitkreuz: But you're focusing on the wrong part of my question. I'm saying, is there a standard at which...? How do we arrive at that? How do we do that? Or do we just sit here and say, it can't be done, so we won't?

Mr. Emile-J. Therien: We said that the European Union is working at that, and I think the Brits are working at that. And I think the chair alluded to the fact that we should look at what's going on in Europe. I think they're in the remarks.

Mr. Garry Breitkreuz: You don't think we should do our own testing and try to--

Mr. Emile-J. Therien: Absolutely, but if they're a couple of years ahead of us in this, let's not reinvent the wheel. Let's see what they're doing.

Mr. Raynald Marchand: I do believe we should do our own testing. We ought to drive our own thing at some point.

But I'd like to touch on the issue of the provinces and the work they have done--and the translators would have this part, because it was attached to Mr. Therien's presentation. If we look at the small paragraph as to what Manitoba does in cases where your blood alcohol is superior to 0.05, it says: “In Manitoba, driving while you have a blood alcohol concentration of .05 or more will result in an immediate 24-hour driver’s license suspension, disqualification from driving any type of vehicle on or off the road for the same time period, and a $40 fee for reinstatement.”

It further says: “ If you receive two or more suspensions in three years involving driving with a blood alcohol concentration of .05 or over, you will require a mandatory impaired driver’s assessment at your own expense. The cost is $270. If the assessment or recommended educational or treatment programs are not completed, your driver’s license will be suspended indefinitely.”

So we see that at the provincial level, within the Criminal Code, there are some very severe penalties for people who drive even with one or two drinks in the body if that occurs repeatedly. We believe this assessment and treatment is what's going to provide protection for Canadians and that it will help reduce the incidence of impaired driving in this country.

Mr. Randy White: Is the Canada Safety Council saying that there are no standardized roadside tests for drugs? Is that what you're saying?

Mr. Emile-J. Therien: I think we're not aware of any.

Mr. Randy White: I have the New Jersey standardized test in front of me and I know there are others, so have you not looked at them?

Mr. Emile-J. Therien: No. We should look at them, then.

Mr. Randy White: This New Jersey one gives normal ranges--pulse, pupil size, blood pressure, body temperature--eight different columns of tests for various drugs, so--

Mr. Emile-J. Therien: But is the purpose to lay impaired drug charges? That's the issue. I don't think it is, in New Jersey. Charges are not laid because of that test.

À (1050)

Mr. Randy White: Are you sure of that?

Mr. Emile-J. Therien: I'm not sure, but I would say, based on my knowledge of the American experience. Compared to them, we're much tougher in all... But we will follow up with New Jersey. It's a state I'm quite familiar with.

Mr. Randy White: If I have a moment, then, I'll just go back to Garry's question here.

The benchmark level test today, we've established it at 0.08 for alcohol. We have to start somewhere with drugs. How do you start? As Mr. Macklin says, if you don't have the legislation to start, where do you start? I think that's what Bill C-16 is all about. We're entering into a new generation of impairment, so to speak, and it's going to have to start somewhere.

Prof. Neil Boyd: But I think the problem with that is that there has to be a criminal level of impairment, and the reason we have cannabis as illegal, and tobacco and alcohol as legal, has nothing to do with the relative public health dangers of the drug and everything to do with political, economic, and social history.

So we now have this drug that I think clearly is much less dangerous in terms of public health than alcohol or tobacco and we have a difficulty in terms of establishing what level of consumption constitutes criminal impairment. Until we get that resolved, it seems to be foolhardy to proceed before the courts.

Mr. Ed Doerksen: If I might interject here, I have read the New Jersey document you refer to, and I've also read the Los Angeles police training manual on that. I believe they have set basically a standard, but it's not just a standard of the drug in the system. It's a combination of all the evidence they've gathered to bring the person to court for impaired driving due to a drug.

I think that is where any police officer would go. They would gather up all the evidence and not just concentrate on one area--i.e., the standard of the amount of drugs in the person's system at the time. You have to take into consideration the way the person was driving, why you pulled him over, your sobriety tests, your blood tests, and then the evaluations made by the DRE officer.

When you bring all that evidence together into your crown brief, that is what is being brought before the courts. I think that is where the importance is, to gather all this evidence together, to use it, and to allow the officer to have the tools to bring that.

The Chair: Thank you, Mr. White.

Just quickly, DRE evaluations have been used for some time. Is anyone aware of any constitutionality challenges, either in Canada or other jurisdictions, and if so, what the results would have been?

Prof. Neil Boyd: DRE has survived constitutionality challenges in the United States, but I could not give you specifics with respect to those cases.

The Chair: Thank you.

I appreciate our witnesses and their input here this morning. We'll certainly consider your evidence to us today.

Just as a quick housekeeping matter, you are aware that the House of Commons has directed us to establish a subcommittee on examination of the appointments of the judiciary, and with respect to making reform especially as to partisan involvement. I would ask that you consult with your respective House leaders or whips to get the nominees so that we can establish this next week. They have only until October 31 to report, so there's not much time when you look at sitting days. We would like to proceed with the establishment as soon as possible. Thank you.

We are adjourned.