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Standing Committee on Justice and Human Rights


NUMBER 061 
l
1st SESSION 
l
42nd PARLIAMENT 

EVIDENCE

Tuesday, June 13, 2017

[Recorded by Electronic Apparatus]

  (1530)  

[English]

     Good afternoon, ladies and gentlemen.

[Translation]

    It's a real pleasure to have you all here.

[English]

    We are going to begin our study of Bill C-46, an act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other acts. I think it's one of the most important bills that has yet to come before this committee in this session, and I look forward to hearing from the first of what looks to be a large number of witnesses.
    We're joined today by the Minister of Justice and Attorney General of Canada, the Honourable Jody Wilson-Raybould.
     Welcome, Minister.
    She is joined by three individuals from the Department of Justice.
     We have with us our very frequent visitor Mr. Bill Pentney, deputy minister of justice and deputy attorney general of Canada.
    Welcome back, Mr. Pentney.
    Also, we have with us Carole Morency, director general and senior general counsel, criminal law policy section, and Greg Yost, counsel, criminal law policy section.
     Welcome, Madam Morency and Mr. Yost.
    Minister, I'm going to turn the floor over to you for your opening statement. Again, it is a pleasure to have you here.
     Thank you, Mr. Chair, and certainly thank you to all of the members of this committee. I am always pleased to come back before all of you. I appreciate the chair saying that this is one of the most important bills to be before the committee, and I very much look forward to hearing feedback.
    I'm pleased to be here to speak to Bill C-46, an act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other acts. The bill would strengthen the existing criminal law with respect to drug-impaired driving and would result in a simplified, modernized, and coherent legislative framework addressing all transportation offences, including impaired driving.
    The ultimate goal of this bill is to reduce deaths and injuries caused by impaired drivers. Drinking and driving continues to cause untold devastation on our roads and highways, despite years of public education on the dangers of such conduct. No one is immune to its tragic impact. This was evident during the second reading debate, when many members of Parliament related their personal stories of being impacted by an impaired driver. Some have lost family members of their own, and others have described the impact impaired driving has had on some of their constituents and communities.
    I would like to point out that since the introduction of this bill, questions around its constitutionality have been raised, particularly with respect to whether some of the key proposals will withstand charter scrutiny. I would like to assure the committee that I take my role under section 4.1 of the Department of Justice Act very seriously. I am confident that the proposed reforms are appropriately tailored to the important objectives we are pursuing and will survive any constitutional challenge that may be brought.
    It has been my practice, as Minister of Justice, to table a charter statement. I did so with respect to Bill C-46, and it outlines some of the key considerations that informed my review of the bill to ensure its consistency with the charter. The statement identifies how the bill potentially engages charter-protected rights and freedoms and also identifies the rationale for justifying any limits that the bill may impose. My hope is that this information will be of assistance to all members as you study and continue to debate this important bill.
    I would like to now spend a few moments outlining some of the key proposals in the bill. As I mentioned, the bill proposes to strengthen the existing criminal law approach to drug-impaired driving. It would do this by enacting three new driving offences of being over a legal drug limit. The legal limits are not contained in the bill but would be set by regulation. This approach would permit cabinet to add drugs or amend legal limits quickly and efficiently in response to the evolving science. Although legal limits would be established for several impairing drugs, such as cocaine and methamphetamines, I propose only to outline the levels relating to THC, the primary impairing component of cannabis.
    The bill establishes a low-level fine-only drug offence for THC. This represents a precautionary approach. This offence would prohibit having between two and five nanograms of THC per millilitre of blood within two hours of driving. This offence would be punishable by a maximum fine of $1,000 and a discretionary driving prohibition of up to one year. Additionally, Bill C-46 proposes a hybrid offence for a higher level of THC, corresponding with higher risks from impairment. This offence would prohibit having five nanograms or more of THC per millilitre of blood within two hours of driving. Finally, the second proposed hybrid combination offence would prohibit low levels of THC in combination with low levels of alcohol, recognizing that these two substances interact to significantly increase overall impairment.
    Both of the hybrid drug offences would have escalating penalties that mirror the existing impaired driving penalties: a $1,000 fine for the first offence, 30 days' imprisonment for a second offence, 120 days' imprisonment for a third or subsequent offence, and mandatory prohibition orders.

  (1535)  

     The bill also proposes to authorize the police to use roadside drug screeners to more effectively identify drivers who have been using drugs. These tools would be in addition to the existing roadside tests, known as standard field sobriety tests. The ability to demand these tests has been in force since 2008. They are used by police to develop reasonable grounds to believe that a driver is impaired and proceed to further investigate.
    I am very pleased that last week Minister Goodale announced that the drug screening device pilot project conducted between December 18, 2016, and March 6, 2017, by police officers in seven jurisdictions across Canada was successful, and received positive reviews from police. Officers reported that the devices were easy to use at the roadside and that they were able to successfully use them in various weather, temperature, and lighting conditions. Giving law enforcement this tool to detect and deter drug-impaired driving will better protect communities.
    Bill C-46 also proposes significant reforms in the area of alcohol-impaired driving and other transportation-related provisions. It proposes to completely repeal these Criminal Code provisions and replace them with a simplified, modernized, and coherent legislative framework. One of the key proposals is to authorize mandatory alcohol screening. This proposal would allow a police officer, in the lawful execution of their duty, to demand a preliminary breath sample from any driver who is operating a motor vehicle. This provision was debated vigorously at second reading. I want to spend a moment explaining in some detail the reason this is proposed within the bill.
    Mandatory alcohol screening is common in other jurisdictions, including in New Zealand, Australia, Ireland, Scotland, and much of Europe. It has been proven to significantly reduce traffic-related fatalities. In fact, in Ireland it was credited with reducing the number of deaths on Irish roads by approximately 40% in the first four years after it was enacted. The Supreme Court of Canada has upheld the power of police officers to stop vehicles at any time to ensure that drivers are complying with the rules of the road. They can do this to ensure that drivers are licensed and insured and the vehicle is mechanically fit, and to check for sobriety. The proposal in this bill would require a driver who is already subject to a lawful traffic stop to provide a breath sample, similar to the way they are now required to produce their licence and registration. It is simply information about whether a driver is complying with one of the conditions imposed in the highly regulated context of driving.
    Some have expressed concern relating to the perceived risk that this provision could lead to an increase in racial profiling. While the issue of racial profiling is a serious concern to our government, mandatory alcohol screening will not have an impact on this practice. Mandatory alcohol screening would not alter the responsibility that law enforcement has towards training and oversight to ensure fair, equal, and appropriate application of the law. Finally, mandatory alcohol screening was unanimously recommended in 2009 by the members of this very committee following a comprehensive study of the issue of impaired driving. I thank that committee for their hard work on this important issue, and I am pleased to have been able to include that recommendation in this bill.
    As Minister of Justice and the Attorney General of Canada, I feel it is my obligation to take any and all reasonable measures within my authority to reduce the incidence of impaired driving, with the ultimate goal of reducing road accidents. I am confident that the mandatory alcohol screening will be effective at reducing deaths and injuries on our roads and highways. I'm also confident that mandatory alcohol screening is constitutional. Constitutional compliance is about striking the appropriate balance. Mandatory alcohol screening is minimally intrusive, but the benefits in lives saved will be immeasurable. Simply put, mandatory alcohol screening will change the mindset of drivers, who will no longer be able to convince themselves that they can evade police detection of their alcohol consumption if stopped.

  (1540)  

    Mr. Chair, the bill contains many other proposals that I do not have time to go into in great detail, but just for summary's sake, some of these elements include: removing or limiting defences which encourage risk-taking behaviour, including the bolus or drinking-and-dashing defence; clarifying that the crown is only required to disclose scientifically relevant information; simplifying the proof of blood alcohol concentration; and, increasing some minimum fines and some maximum penalties.
    I would like to draw the committee's attention to the legislative backgrounder on Bill C-45 that I tabled on May 11, which contains more detail regarding all of these proposed changes. It is my hope that this document will help guide your study by explaining in more detail the intent of the proposed changes.
    In conclusion, the ultimate goal of Bill C-46 is to save lives, reduce injuries, and ensure the safety of Canadians on our roads and highways. If passed, this bill would give Canada one of the toughest impaired driving regimes in the world. Protecting the public is a responsibility that I take seriously and that I know this committee takes seriously, and I'm very proud of the proposals set out in Bill C-46.
    Than you for your attention. I look forward to comments and questions, Mr. Chair.
    Thank you very much for your statement, Minister Wilson-Raybould. We're going to turn to questions from members of the committee.
    We'll start with Mr. Nicholson.
    Thank you very much.
     I'd like to welcome the minister and all these members of the Department of Justice. I thank you for your appearance today.
    There's quite a bit in this piece of legislation. I wonder if you could explain it again for me and for the committee with respect to the mandatory testing. As you've pointed out correctly, the law now is that the courts have upheld the right of police officers to stop people and check with them for their insurance or make sure their licence is up to date. At that time, after they've stopped that individual, if they believe the person is impaired, they are entitled to demand a breath test.
    In your description of how this new regime would take place, would it be the same regime in which they're stopping the individuals on a regular basis to check their insurance or their licence, or would the sole purpose of stopping these people be to test for impaired driving? You seem to say that it's both of them. If they have a lawful reason to stop the person, which has been decided, in that they can check on things like your insurance and licence, is the next step, then, that they can or will have the mandatory testing, or are you suggesting and is this bill saying that you can be by the roadside and just start pulling people over, and it's strictly about alcohol and has nothing to do with licences or insurance?

  (1545)  

    Thank you for the question. I appreciate the enormity or the length of this particular bill.
    In terms of the mandatory roadside screening, as you quite rightly indicate, it does not provide law enforcement officers with any additional powers, but certainly to pull people over on the roadside in compliance with the current laws.... In terms of how the mandatory alcohol screenings will be administered, certainly we have to continue to work with law enforcement and to support law enforcement officers with regard to the ability of having the screening devices available to them and having the training and testing with respect to various jurisdictions in terms of law enforcement officers.
    How the screening will unfold, I suspect, would be a combination of the situations you speak to, whether it be the random roadside stops or the roadblocks at Christmastime. I know that other jurisdictions, in having these conversations, have discussions and do research around situations where there's an increase in terms of impaired drivers driving, whether that be in the early morning hours or around a specific location in a city or a town, but again, this is—
     Do you envision that it's in combination with stopping people to check their insurance and their licence, or is that necessary under this? The deputy may have a comment.
    A police officer can pull somebody over lawfully, as you quite rightly say, to check their driver's licence, to check their registration, to check if they are impaired by alcohol, and in any of those stops a police officer, if they have the screening device, can administer that screening device.
    This bill is in conjunction with Bill C-45, which is with respect to the legalization of cannabis, but this specific section just refers to alcohol. Is that because you don't believe that the technology is in place to immediately check whether the person is also drug impaired? It just refers to alcohol.
    In terms of the mandatory roadside screening?
    This bill with the mandatory roadside testing refers to alcohol. It doesn't refer to drugs.
    You're quite right. Bill C-46, the impaired driving in terms of drug impaired and alcohol impaired, is a companion piece to Bill C-45, which is the cannabis act. In terms of the mandatory roadside screening, it only applies to alcohol. We are ensuring that we continue to work with the best scientists and experts in this area who are helping and providing us advice in terms of the detection of drug-impaired driving. We've benefited greatly from the drugs and driving committee that has been working on the development of tools.
    As I said in my comments, the science will continue to evolve, but as with other jurisdictions throughout the world that have followed similar processes in terms of approved devices for the oral fluid screening that is articulated in part 1 in terms of drug-impaired driving, we have benefited from the tests that Minister Goodale has undertaken. We are confident that we have an oral fluid screener that will, on the roadside, enable the first test in terms of drug-impaired driving. If there is a reasonable basis for a police officer to think that somebody has been influenced or impaired by drugs, they will be able to administer the test, which would register a positive or a negative.

  (1550)  

    Let me ask you about the defence of bolus drinking. Do you anticipate that there may be some challenges, some difficulties with that?
    I've seen cases over the years that an individual may or may not have been drinking, but after, for instance, an accident, have consumed some alcohol ostensibly to calm themselves after the accident. I suppose this would come within the definition here whether the person drank or not. I wonder if you see problems in terms of proving, because it's what the condition of the individual is when the accident takes place or when they're pulled over that's the key moment in the amount of alcohol in there, not the amount of alcohol they consumed afterwards. Do you think that this could be part of the challenges that this particular section is going to face?
    I think that simplifying or repealing some of the defences around bolus drinking or around the intervening drug offence will significantly speed up trials around impaired driving. Adding the two-hour time frame in terms of the offence does this. In terms of the intervening consumption, there is a defence to that if there was no anticipation that a police officer would come to one's home or an anticipation that there was a presumption that they would be under the influence of drugs. The two-hour time limit put around the time of driving is to eliminate the possibility of those defences moving forward.
    We need something like that. When we were government we got rid of the two beer defence for just the same reason here, so people aren't manipulating the situation to allow themselves to get off which is otherwise a very serious matter.
     Thank you, I think I probably ran out of time.
    You did, but they were very important questions.
    Thank you.
    Thank you very much, Mr. Nicholson.
    Mr. Fraser.

[Translation]

    Thank you, Mr. Chair.

[English]

    Thank you very much, Minister, and, ladies and gentlemen, for being with us today to answer our questions on this important bill. I appreciate the work that has gone into this, Minister.
     You touched on some of the elements dealing with the charter that you address in the charter statement that was put out. I'd like to ask you about the difference between random breath screening at a roadside checkpoint, which you touched on, and any sort of traffic stop. Peter Hogg, a leading Canadian constitutional expert, offered an opinion that actually only refers to checkpoints. He talked about how in that situation there would not be a stigma or humiliation, or irrelevant considerations, such as race, going into who it is who's being chosen to actually take a random sample.
    I'm wondering, and you touched on it briefly in your statement, if you could explain why it was decided that it would not be just the roadside checkpoints, but that it would be at any traffic stop that a random sample could be taken.
     I appreciate the question and certainly welcome the views and opinions of this committee and other experts who may or may not come before the committee.
    The decision to have random mandatory breath screening was made based on experiences and practices in other jurisdictions that have been very successful at reducing the number of impaired drivers on our roads and significantly reducing the deaths on the roads. It provides another tool for law enforcement officers to be able to identify whether an individual is impaired by alcohol, either at a roadblock such as we see at Christmas, for example, or through a random stop.
    We've learned from other jurisdictions that it also acts as a significant deterrent for individuals who think there is some opportunity for them to calculate how much alcohol they can drink before getting behind the wheel of a car. We have learned from other jurisdictions that people will not want to take chances in terms of drinking before they get behind the wheel of a car. In our view and with that broad public policy reason in mind, we are putting forward mandatory screening to ensure that we do everything we can to keep our roads safe. Based on that public policy objective and the concept of reasonableness in terms of a very regulated environment, we deem it entirely appropriate to achieve its objective.

  (1555)  

    Do you think it will be important to follow how this is actually being implemented in real life when people are being stopped, to ensure that it is not impacting, for example, more greatly on racial minorities who could be stopped for irrelevant considerations? Do you think it's important that we follow statistics on this and make sure that proper training is in place to ensure that it is being effectively utilized?
    I would take into your question that this bill does not provide law enforcement officers with additional tools. They are, however, lawfully able to pull drivers over on the roadside for the reasons we have discussed, and those reasons, whether they be questions about a driver's licence or questions around the impairment of an individual, have been upheld by the courts. I think that ensuring that we arm law enforcement officers with all the necessary tools and the necessary training and ensure that—and this is a different issue but a very important issue that we need to continue to address—we are looking at implicit bias and have training around that are things that I entirely support and, I know, that my colleagues in government support.
    Ensuring that we monitor, however we can, and collect data, I think, is an important thing that we should do with respect to any new piece of legislation that comes into place. We'll continue to work with the provinces and the territories as we see the rollout of this important piece of legislation.
    Jurisdictions need time to understand the impacts of part 2 of this legislation, and so the coming into force has been delayed.
    That's very good. I think it will be very important to work with provinces and territories and to have a continuous dialogue to understand how this is actually affecting people on the roads.
    With regard to training and tools and working with the provinces, what do you think about additional resources being made available for training and tools, which the provinces are asking for, to ensure that this law has the intended effect on the ground and that it can be properly implemented?
    I think it's an incredibly important question. Having looked at submissions by members of all parties around this bill, I know this is something that all parties on every side of the House of Commons deem to be important.
    As well as ensuring that law enforcement officers have the appropriate training, we are also going to continue to ensure that we have and maintain our public communication and education around the dangers of impaired driving, whether it be by drugs or by alcohol.
    I was pleased to have the $9.6 million in the budget to go towards this education and communication, but I have also worked with my colleague the Minister of Public Safety, and we have had substantive discussions around the realities and the necessity of providing tools to law enforcement officers, the provinces, and the territories. We have to ensure that we're able to provide them those tools, including providing them with the necessary training and the necessary resources in order to do their job to achieve the ultimate objective of this bill, which is to keep our roads and highways safe.
     Thank you very much.
    My deputy has a comment, too.
    Very briefly, I would encourage you to speak to witnesses as they come forward.
    The current law is imposing a series of resource constraints right now on police, crown attorneys, and the judiciary. As Mr. Nicholson noted in his comments earlier, some of that's related to defences that are being brought forward, archival history, scientifically irrelevant evidence that is being demanded. The effort in this bill to streamline the procedures associated with what is either the highest or second highest volume case occupying provincial court time generally across the country right now, to the extent that streamlining those prosecutions to get to fair justice more quickly, more efficiently, and eliminating defences based on dangerous behaviour or other things that we think are scientifically irrelevant, has to be a saving to the system as well. I just note that. I think that's worth exploring as it goes forward.

  (1600)  

    Thank you very much.
    Mr. MacGregor.
     Welcome back, Minister, and it's good to see your officials again.
    I want to concentrate my line of questioning specifically on proposed section 320.27 because you have made some comments about the mandatory versus random nature of this law. When police exercise their considerable powers under the Criminal Code, they usually have to show a reasonable suspicion that an offence has occurred in order to administer those powers, either to detain someone or bring him or her in for further questioning. The way this proposed section is written, yes, a police officer has to lawfully stop someone on the road, either through speeding or a broken tail light, but then the decision on whether to administer a breath sample is entirely up to the officer.
    The real danger here is what whims will affect the police officer's decision to administer that breath sample. How is the Department of Justice going to implement that training to ensure that we are not disproportionately affecting certain groups of society more than others?
    The way the law is written, there's no real follow-up allowed with the officer to ask, “What made you administer the test?” It seems to be entirely discretionary on the part of the officer, whereas before they had to prove a reasonable suspicion. I'm just wondering, how is the Department of Justice going to make sure that this training is instituted in a proper way and that officers are acting with the best intention for all their actions?
    Thank you for the question. It's similar to questions that have been asked, and I think it's really important.
     We've had this conversation around racial profiling and whether this mandatory breath screening will impact racial minorities more than others. I will say that, again, mandatory roadside screening acts as a deterrent. Officers, as you quite rightly point out, and others can continue to lawfully pull individuals over. I have to go back to the confidence I have in law enforcement officers and the necessity for law enforcement officers in various jurisdictions to continue to get the necessary training that's required, and that includes how we deal with marginalized communities, how we deal with implicit bias.
    What's the Department of Justice going to do in this regard, in terms of the application, ensuring that law enforcement officers apply this screening device in a fair way? I've continued to have discussions with my counterparts in the provinces and territories, the attorneys general. We've had discussions about this particular piece of legislation and the impact, whether that be around training...and that includes resources. As well, my colleague, the Minister of Public Safety, has indeed had conversations with his counterparts. In fact, we have federal, provincial, and territorial meetings together on many occasions.
    I am committed to ensuring that we continue to have these discussions with our counterparts, continue to ensure that we provide the necessary support so that law enforcement officers in their jurisdictions have the ability to access this training, have the ability to ensure that they can continue to improve on their training. We need to understand and recognize that separate and apart from the training around what's required in terms of the ministry, the screening, racial profiling is also a serious issue that law enforcement officials, all people, actors in the criminal justice system need to be very aware of. That's inherently part of my commitment in terms of my mandate letter from the Prime Minister, to be mindful of the realities that marginalized individuals face in our country.

  (1605)  

     My next question is with regard to the per se limits of THC. I know this will be set by regulation, but your department has already identified some numbers. Bill C-46 can't be seen in isolation. Of course, you introduced it on the same day that Bill C-45 was introduced, and I know you want to have this law in place before Bill C-45 becomes law, but the changes to Canada's marijuana laws will be quite a revolutionary thing. I agree with the approach, the overall goal that Bill C-45 has, but if cannabis is legal in Canadian society, it needs to be accompanied by that public awareness campaign, because I don't think a lot of people see the strong correlation between how much you can ingest or inhale and what constitutes impairment.
    What studies or evidence does your department have correlating these specific numbers to impairment? Whether you eat something or smoke something, whether you're a habitual user or first-time user can have a different effect on how much of the drug is in your body, and it also could be very different to what constitutes impairment. How has your department examined that particular issue?
    From the outset, in terms of drug-impaired driving, as I said in my comments, we're taking a precautionary approach, the premise being that no level of drug impairment or no level of ingestion of drugs is appropriate if you're planning on getting behind the wheel of your car. As you quite rightly point out, the science with respect to impairment by drugs is not as clear as it is with respect to impairment by alcohol, which is why, with respect to Bill C-46 and the per se limits we have been taking and continue to take expert advice from the best scientific evidence that the drugs and driving committee present to us. They are part of the Canadian Society of Forensic Science. We're going to continue to empower and embrace recommendations that come from them as the science continues to evolve in terms of the levels that have been set. We have taken advice from them, as well as from levels that have been set in other jurisdictions.
    Thank you very much, Mr. MacGregor.
    Ms. Khalid.
    Thank you, Chair, and thank you, Minister, for coming in today.
    Minister, I think the committee has really expressed today the importance of equality when it comes to administering this type of justice. In Toronto we have the issue of carding, where between 2008 and 2013, 2.1 million cards containing information on law-abiding citizens were filled out by Toronto police. This involved one million people, and the majority were African Canadians. Racial profiling is definitely an issue that I hope you will consider in this legislation going forward.
    Could you please talk about the distinction between medical versus recreational marijuana in the regulations and whether there will be a distinction with respect to impaired driving?
    Just in terms of your comments around racial profiling, I take the point incredibly seriously, again, ensuring that law enforcement officers have the appropriate training and implicit bias training, recognizing that if a lawful stop happens and there's a perception of an overt bias of a law enforcement officer to an individual, that individual can challenge that reality.
    In terms of medical marijuana and what would be a legal source of marijuana, we have not made a distinction in this bill with respect to being impaired by medical marijuana or by a legal source of cannabis as in Bill C-46. Any impairment, whether that be from a medical source or a licensed distributor in a province or a territory of legal marijuana to an adult over the age of 18...it's not appropriate to use cannabis and get behind the wheel of a car. We haven't made any distinction between the two. The public purpose is to ensure that anybody who's impaired by drugs or alcohol does not drive their car.

  (1610)  

     If I could add one point, it's equally illegal now to be behind the wheel driving impaired by alcohol, as it is to be behind the wheel impaired by a prescription drug you're taking for medically necessary purposes completely legally and lawfully. We know many over-the-counter drugs say that they could impair you. Lawful or illegal, if the substance causes impairment, you shouldn't be driving.
    Thank you.
    Minister, paragraph 8 of the preamble of Bill C-46 notes the importance that “federal and provincial laws work together to promote the safe operation of motor vehicles”. To what extent do provincial and federal laws complement each other to promote the safe operation of motor vehicles, and will provincial laws need to be changed once Bill C-46 comes into effect?
    In terms of Bill C-46, we have worked and will continue to work with the provinces and territories in ensuring that the Criminal Code is applied in their jurisdictions. Certainly the provinces have highway traffic acts and have instituted various measures to do their part within their jurisdiction to ensure their highways are safe. A majority of the provinces have instituted a lower level of alcohol concentration to 50, as opposed to what is federally within the Criminal Code at 80. We're gong to continue to ensure that we work with the provinces and territories to provide them with the ability to adapt their current approaches. Provinces and territories have been quite innovative in impaired driving, instituting administrative penalties like in the province of British Columbia, for example, that have significantly reduced delays. They take a car away from a driver who's impaired and have various other means to prevent or deter people from driving.
    Thank you.
    Will there be a financial assistance component for the provinces and territories in helping provide training and equipment, etc.?
    Again, it's an important question. We're putting in place a very strong regime around impaired driving and introducing new tools. In my conversations with the Minister of Public Safety, in addition to the money that's already been provided to provinces and territories, we need to ensure that we provide the necessary resources for law enforcement officers to have access to tools, and have the necessary training around the administration of those tools, to ensure we achieve the objectives laid out in Bill C-46.
    Thank you.
    Thank you very much, Ms. Khalid.
    We'll now move to the second round of questions, and we're going to start with Mr. McKinnon.
    Thank you, Minister and officials, for being here.
    I was going to talk about per se limits, but Mr. MacGregor did a fine job with that, and I appreciate your answers to him, so I'm going to do a bit of a change of pace here.
    It appears that a lot of the work done in this bill is to substantially rewrite a major section of the Criminal Code to clarify and streamline things, as it were. It seems that in that process a number of offences have been eliminated, such as street racing, failure to keep watch on a person being towed, and so forth. I wonder if you could speak to those matters, and whether they're going to be reintroduced in some other fashion or whether they're no longer relevant.
    I think any reasonable examination of the history of impaired driving laws would show that they have been around for a long time. They have been adjusted quite often, and at the end of that, like many carpenters working on renovations to a house, it may not be that the golden thread is as evident throughout. Partly the effort here is to make sure that where there are duplicate offences, where needlessly specific offences are covered by more general provisions, we should streamline and simplify that.
     I think the Law Reform Commission at one point described parts of this law as virtually unintelligible even to senior lawyers and crowns. That's not good for anyone, for ordinary Canadians, for those who want to help address this, or for those who are involved in the administration, the ordinary police officer or the judge or the lawyer. The effort here is to ensure that the harms to be addressed are covered by appropriately descriptive provisions, but also to streamline and reduce where there's overlap, or in some cases frankly, needlessly specific offences, where the more general would be sufficient.
    I think that's a fair summary of the effort to try to streamline and simplify this and to make the law more effective and more easily applied. This is one of the most heavily litigated areas of criminal law, and we think we can streamline and make the law equally effective without leaving a public harm that ought to be addressed outside the law.

  (1615)  

     To add to the deputy's comments, and I understand there's a robust group of witnesses coming in, we would benefit from your thoughts around whether we've hit the mark, and from the contribution to the discussion of experts who are fundamentally involved in prosecuting and defending impaired driving.
    I guess what I'm understanding from this is that offences such as street racing might be encompassed now in something more general like dangerous driving.
    That's the broader offence, so dangerous driving would encompass that.
    In this vein, there's also an offence that seems to be being repealed, which is offences of flight causing bodily harm or death. That seems to be a very serious offence.
    I'm wondering if there is really an offence that encompasses that.
     In fact, the offence as written today is that a person commits the offence who, while fleeing from the police, drives dangerously and injures or kills someone. The only purpose of that specific offence was to raise the maximum penalty, in the case of bodily harm, from 10 years to 14 years and, in the case of death, from 14 years to life.
    By raising the maximums for dangerous driving causing bodily harm and death, there's no need for those particular offences. The actual flight from police simpliciter, if I can call it that, remains as an offence. If people fleeing from the police drive dangerously and injure someone, they would face a charge of dangerous driving causing bodily harm and would face a separate charge of flight from police under the new provisions.
    Thank you.
    I want to go back now to the testing for per se limits. There is an alcohol test committee that has, for 50 years, been doing testing relating to alcohol impairment. I'm wondering if there is going to be a similar committee for drug impairment. I'm also wondering if there are objectively determined standards for impairment that we can measure these drugs against. Maybe these are questions to ask the experts later.
    There is the drug-impaired driving committee that we are continuing to hear from. They're scientific experts, so we take advice from them.
    Maybe I could ask Greg to speak to the second part of your question.
    The drugs and driving committee has been examining standards used in other countries, for example, in the United Kingdom, to validate the technology and authorize drug screening devices for use. It is developing standards, looking at those to see if they're applicable to Canada. That work is ongoing. We expect the report in time for us to be able to approve certain roadside screeners for use by police in Canadian conditions, which are somewhat different from those in the United Kingdom for weather and such like. The work is ongoing.
    It is also, like the alcohol test committee, a subcommittee of the Canadian Society of Forensic Science. It's at arm's length from government.
    Thank you.
    Thank you very much, Mr. McKinnon.
    Go ahead, Mr. Cooper.
    Thank you, Minister and officials, for being here.
    It's a big bill. There are a number of good aspects to the bill, and there are other areas I have concerns with. One of the areas I have concerns with, which I want to discuss and drill down a little more on, is random breath testing. Right now, the standard is one of reasonable suspicion, not that someone is impaired or that they are over the .08 limit, but rather a reasonable suspicion that they have alcohol in their system.
    That's a pretty low standard. Wouldn't you agree, Minister?

  (1620)  

    In terms of the alcohol testing and in terms of the mandatory breath screening that we're proposing, it would enable officers to do it as a matter of the practice within their responsibilities.
    Right.
    You had indicated that one—perhaps the only—reason why the choice has been made, as a matter of policy, to authorize random breath testing is the alleged success it has had in other jurisdictions. Is that the basis?
     We've inserted, not random breath screening but mandatory breath screening, and there are many reasons that we've done that. Certainly it's based on what we've learned from other jurisdictions in terms of preventing the number of accidents on the highways, significantly reducing the number of deaths. It certainly acts as a deterrent factor. What we've also learned from evidence is that a significant number of drivers, up to 50%, whether it's at a roadblock that has been erected by police officers...manage to drive through the roadblock while they have been impaired by alcohol. Mandatory screening was also proposed in private member's Bill C-226.
    As you know, Mr. Cooper, the public policy reason for the mandatory roadside screening is to ensure that we prevent deaths, and that is entirely reasonable in the circumstances.
    Madam Minister, one of the concerns I have with some of the studies in other jurisdictions is that no jurisdiction is the same. In addition to that, in many jurisdictions, mandatory breath testing or random breath testing, whatever you want to call it, was instituted as one of the first measures taken to crack down on impaired driving. In Canada we have had selective breath testing and we have seen a significant reduction in the number of people who are driving impaired and deaths as a result of impaired driving, although the carnage is still too high, and everyone agrees on that point.
    I'm not aware of any study that actually directly assessed the impact of mandatory breath testing with selective breath testing. Are you aware of any studies?
    Everybody is turning to me.
    There have been a lot of studies in Australia when this was introduced in the mid-1980s to early 1990s. In many cases, as I understand it, they had already tried what we would call an approved screening device test, and that wasn't having the results they wanted. However, I'm not an expert on the state of Australian law in the 1980s when they brought in RBT, random breath test.
    I do believe that Ireland, which had such excellent results when they brought in mandatory alcohol testing, as they call it, already had the “over 80” offence and already had the ability to check people at the roadside. I know nothing about European laws when they brought it in because my knowledge of other languages....
    Thank you. Certainly I would be very interested in any studies.
     Sorry, I would like to add that when Bill C-226 was also being studied previously by the SECU committee, the issue was asked there as well.
     If you look at the successes in addressing impaired driving over the years, you see it's probably a combination of many things. Public education is huge. Training for law enforcement is also important, as is a new law, legal framework, to provide new tools to detect and to better address the issue. Also a combination.... On the mandatory alcohol screening, where random breath testing, as it's called elsewhere...it's also probably related to a function of how many police you put at different points to do the random testing, or as proposed for mandatory alcohol....

  (1625)  

    I'm sorry, I know we're prolonging this. I have just one other point, which is that it's mandatory if the police ask. We hope that police use a whole variety of innovative techniques to ensure that the deterrence effect that we're seeking is achieved by the application of the law. We're not saying that every police officer who stops every person for a broken tail light might ask, but we are saying that everyone who gets pulled over for whatever reason and whatever context should know they might be asked, and if asked, they have a legal obligation to comply.
    We know with social media and otherwise, the capacity of Canadians and others to defeat this needs to be...and we would expect it to be taken into account by the way in which the police administer this. A variety of techniques to try to make this effective is what we hope for in the application of the law.
     Certainly, I would be very interested in any study, because let's not underestimate the fact that this is a significant infringement on individual liberty when we're talking about taking a bodily sample with even the slightest hint of suspicion that someone is breaking the law.
     I think Mr. Yost brought up the point about the success that Ireland has had. The system in Ireland differs from what is proposed in Bill C-46 in the sense that the mandatory breath testing can only take place at regulated check stops. I would be curious as to why that was not considered. It would seem to me that a lot of people would be a little more comfortable with that than a mandatory roadside testing system whereby a police officer can stop any vehicle, anywhere, under any circumstances, albeit a lawful stop to check registration, insurance, etc.
    Before you comment on that, I would just note, Madam Minister, because you had mentioned and the point had been raised by others, that right now police can stop a vehicle to check insurance, registration, or sobriety by engaging in a conversation with an individual, and if they have a reasonable suspicion, they can take further steps. I would note that when we're talking about taking a breath sample, a bodily sample from an individual, we're talking about something that's much more significant. To that point, I would draw your attention to the Goodwin decision from the Supreme Court wherein Madam Justice Karakatsanis stated that taking breath samples remained “more intrusive than a demand for documents” and clearly amounts to what Justice La Forest said, “The use of a person's body without his consent to obtain information about him invades an area of privacy essential to the maintenance of his human dignity.” That is a fairly significant statement for the Supreme Court.
    There are huge practical differences between Ireland, a small country with a population of about four and a half or five million, and Canada, a huge country. Large parts of our country have small detachments and the resources required to run full check stop programs are enormous. They're so enormous that even in large cities like Toronto, they're reserved for a few seasons of the year. If it was required that it be at a check stop, it probably would not have much effect at all.
    The other thing is in Australia, a review of the random breath testing program said you can't be in the same place all the time, using the same resources, because people will drive around you, so it's essential that you be unpredictable. That's what this would be.
     I appreciate the thoughtful nature of your questions, and I know that you likely have read the charter statement that I was able to table with respect to this bill. It answers some of those questions. I would encourage all members of this committee to read it, as well as the backgrounder that provides more information as well as substantive background in what the drugs and driving committee has recommended in their executive summary. There's information out there.
    Thank you.

  (1630)  

    Thank you very much.
    Mr. Bittle.
    Thank you so much.
    Thank you, Minister, for coming today to testify.
    I know you and your officials have talked about the mandatory alcohol screening in other jurisdictions, but I was wondering if you could expand on the benefits in a bit more detailed way to explain which jurisdictions have shown the success, and the numbers that have backed that up.
    Sure. We worked very closely with MADD on this. There is a lot of information. According to MADD, more than 40 countries worldwide have authorized mandatory alcohol screening, and as I said, these include Australia, New Zealand, Austria, Belgium, Denmark, Finland, France, Germany, Ireland, the Netherlands, and Sweden, to name a few.
    Mandatory alcohol screening came into force in Ireland in July 2006, and it was credited by the Road Safety Authority for reducing the number of people being killed on Ireland's roads by almost a quarter, 23% in the 11 months following its introduction. In 2005, the last full year in Ireland without mandatory alcohol screening, road fatalities were 398, and by 2009, fatalities on Ireland's roads had declined to 238, a reduction of 39.9% from 2005.
     Thank you so much.
    I didn't practise in the area of criminal law. We've heard a lot about delays in the criminal justice system. I saw it in the civil side, and I've heard from my family law colleagues that even delays within the criminal law system have spillover to the abused spouse seeking a divorce, or a small business owner looking to get back an unpaid debt; these delays have an impact even beyond the criminal justice system. They impact middle-class Canadians who depend on the justice system in times of need.
    As one of the most litigated matters before the court, could you explain how this bill would ease the delays of our justice system as a whole?
    Well, I think it's a really good question. The deputy touched on it and you did as well. In terms of one of the most litigated areas that contribute to delays, we believe that the efficiencies and the redrafting of the transportation provisions in this bill will significantly reduce or assist in the reduction of delays in and around eliminating defences, and clarify the disclosure realities for prosecutors and the proof of the blood alcohol concentration, to name a few.
    Court delays generally are something that we certainly need to combat. In terms of impaired driving, we're seeking to eliminate some of the delays by virtue of this bill.
    If I could just add, I think that the B.C. experience, for example, shows that a more effective law and a more effective deterrent.... Ultimately, we shouldn't be having any prosecutions for drunk driving, because nobody should be driving drunk. That will be the ultimate reduction in delays. What British Columbia has shown, with immediate roadside prohibition and the deterrent effects associated with that is that you should be able to see a reduction in charges proceeding.
    We would hope to see less impaired driving, more use by provinces of their tools to more immediately deal with first-time impaired drivers, and fewer cases going to court. The two elements are streamlining and also a deterrent effect. We should be looking for fewer cases going to court because fewer people are driving impaired.
    Have you heard support for these provisions from your provincial and territorial colleagues on these points?
    I've had the opportunity to continue to engage in discussions with my counterparts, but certainly, discussions have been ongoing at the officials level, and what we've put in here is reflective of those discussions.
    Perhaps it is a bit unfair to put you on the spot, Minister, and maybe your departmental staff have this statistic, but I'm just curious. What is the percentage of impaired driving cases that go to trial versus other charges? Do you have that statistic available to you?

  (1635)  

    We can certainly get you that. What we do know is that the mandatory nature of the associated penalties means that more cases with MMPs go to trial, but we can certainly get you the percentage, as well as the percentage of cases having gone to trial resulting in a conviction.
    Thank you.
    Very quickly, you talked about mandatory minimums. As a government, we have often discussed the constitutional issues with mandatory minimums, except for certain particular types of offences. Can you explain the importance of mandatory minimums and keeping mandatory minimums with impaired driving offences?
    Thank you for the question. I know that the discussion around mandatory minimum penalties is going to be an ongoing one that we're having. In terms of mandatory minimum penalties and maintaining them with respect to impaired driving, there isn't a significant factual difference that one can be charged with in terms of impaired driving. Mandatory minimums have acted as a deterrent with respect to impaired driving. Unlike other mandatory minimum penalties that the Supreme Court of Canada has weighed in on, where there is a significant difference in terms of the factual circumstances that can lead to a conviction, mandatory minimums are in line constitutionally.
    Thank you, Minister.
    Thank you very much, Mr. Bittle.
    We have two more questioners. We next go to Mr. Falk and then Mr. MacGregor.
    Are you pressed for time, Minister?
    We were supposed to go until 4:30, but I'm happy to take one more question.
    Thanks.
     Thank our chairman.
    The question will be from you, Mr. Falk.
    Thank you, Minister. I appreciate that.
    I'm sure the minister was eagerly awaiting my question.
    I want to change direction just a little, Minister.
     Alcohol impairment is often fairly easy to detect on people. Drug impairment is less visible and less easily detectable. I'm thinking specifically of the transportation industry and the construction industry, where individuals may decide that once cannabis is legal, they will experiment recreationally with it or even become recreational users. At the moment, I know there are employers, whether they be in public transit or a commercial goods carrier or the construction industry, who have methods of determining whether their employees are impaired from alcohol.
    Have you considered, at all, how employers will be able to work with individuals who may be drug impaired?
    I guess I would say as a general comment, impairment in the workplace is something that, from all accounts, I think is seen as unacceptable. The regulation or the implications of an individual who is impaired in a workplace would be determined by the employer and the jurisdiction that activity would fall within.
    I understand that. However, there are some employers who buy very affordable breathalyzers and require their employees to submit a breath sample when they are suspicious that there could be impairment. In a situation where they are suspicious of impairment due to the use of cannabis, I'm wondering whether there's an affordable means available to them to make those determinations.
    I'm not sure I have an answer to your question, or that I can provide an answer to your question. I mean, if we're talking about cannabis impairment, we are working to develop approved devices to enable us to ensure we can provide accurate roadside fluid screening.
    These devices would be made available if it is the desire of employers or other jurisdictions to be able to, within the confines of the law, administer and screen their employees. That's their prerogative. I wouldn't speak on behalf of an employer about engaging with their employees.
    This is certainly under active discussion.
    For example, in respect to transportation, there are industries now where drug testing is already the norm. There are other countries that have that experience. Other ministers, other departments, and other processes are certainly looking within federal jurisdiction and provincial jurisdiction at ways in which employers who have a legitimate safety concern can decide whether they want to undertake testing, and what would be the legal framework around that.
    That would be a combination of presumably federal regulation in respect to, for example, airline pilots or railway engineers, and provincial regulation in respect to certain construction or transportation trades, as you have talked about.

  (1640)  

    I think it's an important issue that also needs to be addressed.
    There needs to be mechanisms that employers can use to help identify risks. I mean, that's the whole objective of this piece of legislation, to make sure we can reduce traffic fatalities, reduce the levels of impaired driving, and that should also apply to public transportation. There should be ways we can address that, because typically the police officers aren't involved in enforcing those unless there's an incident.
    I guess I could end by saying that this is a point on which we agree.
    Doing everything we can to reduce the risk and increase safety on our roads, to ensure we do everything we can so that negative impacts of drug impairment or alcohol impairment do not impact the public, is something that the federal government is committed to.
    I'm sure that our counterparts in the provinces and territories, as well as employers, want to ensure they have safe workplaces, safe roads, and safe spaces for individuals to be protected.
    Minister, I think you're maybe misinterpreting what I'm saying a little.
    Many of these things are in the environment of public transportation, and heavy equipment is rolling down our roads. Trucks weighing in excess of 100,000 pounds are much different from a vehicle weighing 3,000 pounds. I think we need to consider all these different aspects of reducing ways—
    Thank you very much, Mr. Falk.
    Minister, I understand you need to go. I appreciate your staying a little longer.
    Mr. MacGregor hasn't finished his round. Would the officials be able to stay?
    A voice: Yes.
    The Chair: Thank you. I very much appreciate that.
    We really appreciate your testimony today.
     Thank you.
    Mr. MacGregor, I'll turn the floor over to you, and I'm sure Mr. Pentney and his colleagues will very ably answer the questions.
    Thank you.
    I want to go over the comparison between Canada and Australia. I know, Mr. Yost, that you gave testimony before the public safety committee, and you said that the State of Victoria is hard to compare because in the State of Victoria they do three million breath tests out of a population of six million.
     Just following up on what Mr. Cooper was talking about, setting up a police road check where everyone is checked, I have been through one of those in the State of Tasmania. It was a large sporting event. Everyone coming down the highway was made to blow on a device, and then the plastic tip was changed. It was like an assembly line. Everyone was going through really quickly.
     Australia is a very large land mass with a small population. It's very easy to compare to Canada. I'm just wondering, when you look at the enforcement resources being put into three million breath tests out of a population of six million, and you look at Canada's rates of drunk driving, which have all been going down, thankfully, due to that increased awareness and more police resources, could you not make an argument that, with putting more resources into selective breath testing, we would see that trend go downward with more education, more enforcement, and perhaps mechanisms where everyone is being treated equally with breath tests. Also, the randomness is gone, so we're not subjecting them to the whims of a police officer anymore.
    Well, the State of Victoria is a relatively small state, and the city of Melbourne has about 80% of the population, if not more. They have booze buses they set up that are regularly pulling everybody off the major highways. A situation like that might apply in Toronto or Montreal, perhaps. I don't know.
    Or Vancouver.
    Possibly, yes.
    It's more difficult in many other locations, but that is also the state I was referring to regarding the review of random testing time, which can't be in the same place all the time. Doing those tests over and over, if people are driving around you, is not going to achieve the goal you are seeking.
     I would never argue against more enforcement, and it would be wonderful if we could have more enforcement, but police have stretched resources in many ways. We're hoping they'll put more resources into drug-impaired driving and get more DREs trained, etc., but individual police forces and their municipalities will have to decide what resources they want to put into it.
    The reality now with the evidence we have is that under the current approach a significant number of people who are impaired behind the wheel are not being detected by police. We have, as you've said, a very easily available scientific method of determining that, with little intrusion in a regulated environment where they are exercising a privilege.
    As Mr. Yost is indicating, our hope is that there's a whole variety of different techniques and tools used by police to try to enhance the deterrents. Some of it may be just as you experienced in Tasmania, but there will be a variety of other circumstances, given the challenges associated with the current situation and notwithstanding the successes.
     I think, in looking at drug-impaired and alcohol-impaired driving, that wider perspective is hugely important and, as Ms. Morency said, with the combination of education.... I grew up in a generation when my parents had very different views about it from those of my children. That's a huge success for Canada, but we're looking at what the next step would be to try to improve and reduce the carnage and the human toll that exists on the road now.

  (1645)  

    Mr. Pentney, just on that point, you cited that 50% of people are getting through under current methods. Just for the committee's record, what is that figure based on? Do you have an actual study, and how was it conducted to find that specific—
    I would encourage you to look at the legislative background, and we're certainly happy to provide more in terms of the information.
    Mr. Yost can speak to it, if you would like.
    The study is a footnote to one of these documents. I will get it to you.
    The reality is that people will lie to the police as to whether they have been drinking. On the subject of checking things, I do know that in Quebec, the person I deal with there says that they set up outside such things as rock concerts. They can't make everybody blow, but just the fact that they are there gets people thinking that they aren't sure they want to be one of those suspected of drinking or using drugs.
    Thank you.
    Since we still have the officials here, I just want to make sure we've exhausted the questions. If anybody has some short questions, I'm going to allow them, if it's okay with you and your colleagues, Mr. Pentney.
    Mr. Nicholson.
     Thank you very much.
    You've done extensive studies on the effect of mandatory sentencing. We all have a stake in doing what we can to reduce the carnage on the road.
    What is the result of your study of those jurisdictions that have legalized marijuana? How does that affect the carnage on the road? What have you found in your analysis of that?
    The studies we've seen have all shown that there has been a higher percentage of people with marijuana in their system involved in fatal accidents. This is a problem in that we do not have causation studies. We do not have what level they were at, only “presence of”. They are not anywhere near as good as the studies we've had with respect to alcohol.
     It is certainly a major concern and one reason we hope this legislation will be in place before the legalization of cannabis. I believe that's the government's aim.
    Mr. Chairman, I'll take this opportunity to say that there's a study that's just been released by the Canadian Centre on Substance Use and Addiction that we would highly commend to the committee. We'll be happy to provide it to you. The title is “Collisions Attributable to Cannabis: Estimating the Harms and Costs in the Canadian Provinces”. The top line of the report indicates that cannabis-related collisions right now, in terms of death, injuries, and property damage, are amounting to about $1 billion a year. This is a study that has just been released. It's the first, that we're aware of, in Canada. We highly commend it to the committee.
    We'll be very interested to see what happens, what's going on in the jurisdictions in the United States, for instance, that have legalized marijuana. As you say, we want to do everything we can to reduce the carnage on the road. We'd like to know just what happens or what we can expect in this country when we legalize marijuana.
    Thank you very much
    Thank you very much, Mr. Nicholson.
    Are there any other questions from anybody else?
    Would you like to make a final statement, Mr. Yost?
     It's hardly a statement. It's that the study “Drinking Drivers Missed at Sobriety Checkpoints” is referred to in footnote 21 on page 18 of the backgrounder. Annex 5 of our backgrounder has about nine studies from around the world on the effectiveness of mandatory alcohol screening. I refer those to the committee.
    Thank you very much. We'll read them very attentively.
    Thank you very much, all three of you, for coming before the committee today.
    Thank you.
    I very much appreciate it, and I know my colleagues from all sides do as well.
    We're going to take a short recess and come back to an in camera session after the room clears out.
    [Proceedings continue in camera]
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