Thank you very much, Mr. Chairman. As you indicated, I'm here with Greg Yost from the criminal law policy section and Corporal Evan Graham from the Royal Canadian Mounted Police. I just want to make sure you know that he's not here for my protection; he's here for your edification. I want to make that clear at the outset.
I'm pleased to appear before you again as you begin consideration of Bill .
I note that the bill received the support of all parties in the House, but that a number of members have expressed various concerns and look forward to the standing committee's hearings during which experts should be able to respond to their questions.
I want to reiterate that the government is open to consideration of any amendments that are consistent with the scope and principle of this bill and that you consider would strengthen the bill.
As you know, the bill deals with three components: drug impaired driving, defences to a charge of driving with blood alcohol content exceeding 80 milligrams, and amendments that respond to various problems in the Criminal Code's impaired driving provisions.
With respect to drug impaired driving, I should indicate that the provisions of Bill are almost identical to Bill as it was amended by the standing committee in the last Parliament. It will provide the legislative framework for the drug recognition expert or the DRE program.
Canada is actually behind some countries, including the United States, in this particular field. Since 1984, for instance, the National Highway Traffic Safety Administration in the United States has supported a drug recognition expert training program, which was initially developed by the Los Angeles, California, police department. DRE training has been validated through both laboratory and field studies conducted by Johns Hopkins University.
In 1987, the highway safety committee of the International Association of Chiefs of Police was requested by the NHTSA to participate in the development of a national expansion of drug recognition experts, as well as to oversee certifying of the DREs. It took until 1992 for all the work to be done on the first set of IACP standards to be adopted. Those standards have been revised over the years based on the advice of medical and other experts.
In Canada, DRE-certified officers only use DRE where a suspect voluntarily participates in the testing. Once our legislation authorizing police to make DRE demands is in place, we expect Canada to continue to look to the IACP process to ensure we are always using the most up-to-date, scientifically validated practices and procedures.
Of course my officials and I are not the experts on the pharmacology of various drugs, their effects on the ability of a person to drive, or how long the drug lingers in the body, but we will endeavour to respond to any questions that members have. I'm pleased to have a couple of experts with me.
I would point out that we have been guided by the advice of the drugs and driving committee of the Canadian Society of Forensic Science. In 1999, when it was examining the impaired driving provisions, it suggested that there was a need to have legislative demands to perform sobriety tests and DRE evaluations.
Some members of this committee are likely familiar with the DRE program from previous hearings. Therefore, I will outline just the main steps.
First, the officer must suspect the presence of a drug in the body before demanding sobriety tests. That suspicion could be based on a number of factors, including the smell of marijuana or physical symptoms such as eyes that do not react normally to light. This is similar to the suspicion of alcohol in the body based on the smell of alcohol or watery eyes, which is the requirement for a demand for a breath test on a screening device at roadside.
Second, it is only if the driver has failed the roadside sobriety test that the officer can demand further tests at the police station. That the driver is unable to walk a straight line or stand on one foot and hold the other six inches off the ground--the usual tests--the officer now has reasonable grounds to believe that the impairment may be caused by a drug or a combination of drugs and alcohol. This is similar to the officer who has reasonable grounds to believe that the person is impaired by alcohol can take the person to the station for a breath test, the result of which can be used in court.
I believe that members will agree that a person who can't perform the simple roadside sobriety tests should not be driving. If the impairment is caused by alcohol or a drug, the person's impairment is a criminal act. The person has voluntarily consumed a substance that reduces his or her ability to drive.
If the impairment is caused by a medical condition, the person will be sent for medical attention. It is then a matter for provincial driver licensing authorities.
The DRE-trained officer will examine the person and have the person perform certain prescribed tests, including, for example, eye examinations in different lighting, muscle tone, blood pressure, and pulse. Before the DRE expert can demand that a bodily substance be analyzed for the presence of a drug, the expert will have formed the opinion that the person's ability is impaired by a family of drugs or a combination of drugs and alcohol.
Third, the analysis of a bodily sample will either confirm or refute the presence of the drug that the DRE has identified as causing the impairment. This is a check on the officer's identification of the involvement of a specific drug family.
Ultimately the court will have before it evidence of erratic driving or behaviour, failure to complete simple physical coordination tests, a DRE report on the physical symptoms observed that lead to the conclusion the impairment is caused by a family of drugs, and proof by analysis that the person had the drugs in his or her body. It's my understanding that the courts in Canada have found that sufficient evidence to found a conviction in cases where the DRE has proceeded with the voluntary participation of a driver. What Bill will do is compel the person to participate in the physical coordination tests and in the DRE process.
I now turn to the current use of evidence to the contrary in the courts. I note that during the debate at second reading, reforms we are proposing received strong support. In particular, Mr. Comartin, who has studied this issue quite extensively and has seen the consequences of impaired driving, has said a number of times that the way the two-beer defence has been used is almost a “scandal”.
I agree with him. A two-beer defence is a scandal. It may have had merit in an era when breath test instruments used a needle that had to be read by a technician and the results written down. But with modern electronic instruments that have built-in operability checks and that print out the results, these reasons to accept a two-beer defence no longer apply. The two-beer defence makes all the care that goes into testing and approving instruments, and training operators to use them, close to a waste of time.
One question that was raised was whether it was appropriate for the Criminal Code to restrict the kind of evidence that can be brought forward. I can tell you that Parliament has done so in the past--for example, in the rape shield provisions that restrict the cross-examination of a victim of sexual assault regarding past sexual conduct. It is altogether appropriate, therefore, for Parliament to limit the evidence to the contrary to evidence that has scientific merit. The accused will still be able to bring evidence of consumption, but unless there is evidence either that the approved instrument was malfunctioning or was not operating properly, the evidence of consumption will only be relevant if it is compatible both with the BAC recorded on the instrument and also with the person being under 80 milligrams at the time of driving--for example, because the person had a drink after the driving and before the testing.
I would like to refer to a few other particularly notable reforms proposed by Bill . The bill proposes to increase the current penalties in several ways. I think the higher minimum of $1,000 for a first offence, up from the current $600, reflects the seriousness of the crime. We also propose to come down harder on the repeat impaired driver by increasing the mandatory terms of imprisonment, including raising from 90 to 120 days the minimum for a third-time offender.
We do not believe it is appropriate--and I trust the committee will agree--for a person who has two previous convictions to be able to seek to serve the sentence on an intermittent basis, as they now do. Moreover, we are proposing that the maximum term of imprisonment, if the prosecution proceeds summarily, be increased from six to 18 months.
Our provincial colleagues tell us that there are currently many cases where they will ask for more than six months of imprisonment. They have to proceed by indictment, a more serious and more expensive procedure, even though they know they will not be seeking more than 18 months. Eighteen months' maximum on a summary conviction is the same as that provided for a number of offences, including uttering threats to cause death or bodily harm, assault causing bodily harm, sexual assault, and forcible confinement. So the government believes that the threat of harm caused by the impaired driver merits the same maximum punishment on summary convictions as those offences.
In addition, the bill proposes creating new offences of being over 80 milligrams or refusing to provide a breath sample and causing bodily harm or death. These new offences reflect the general approach of the Criminal Code to treat impaired...or being over 80 milligrams and refusal in the same manner.
Currently the Criminal Code only has the offence of impaired driving causing bodily harm or death. In an accident situation, there may be no direct evidence of the person's driving. The symptoms ordinarily used to indicate impairment, such as being unsteady on one's feet, may be attributed to the effects of the accident. There is, therefore, an incentive for the person involved in an accident not to provide a breath sample, and because the certificate establishing BAC can be crucial evidence to establish that the person's ability to drive was in fact impaired....
I believe Bill C-32 is a balanced legislation that will greatly assist the police, prosecutors, and the courts in dealing with impaired drivers. I urge the committee to deal with it expeditiously.
Mr. Chairman, that concludes my remarks. I'd be pleased to answer any questions that the committee may have.
Thank you, Mr. Minister.
I don't have a huge problem with what you have said. I have more of a problem with what you didn't say. In the House you've used terms like the opposition has “obstructed” or “delayed” some of these Justice bills. I might point out for you that there have been 11 bills--including Bill C-35 that was just sent up--or projects completed by this committee in just over 30 weeks of actual sitting.
I hoped you would open your remarks by complimenting at least the chairman in running a very nice committee. He obviously didn't get the big manual that we read about, because this committee has been working very well.
If the minister won't compliment you, Mr. Chair, I will.
Now to the heart of the matter. The essence of the bill...it's been kicked around for a long time. I've read the notes. The intent is good. As I said in the House, in my notes, or my speeches, I think the devil's in the details, and we have to make sure we have a law that works. To that end, the principal question here is, why did the Prime Minister announce in September 2006 that the $4.6 million RCMP drug impairment training budget would be eliminated because it didn't work? Why didn't it work? What are you going to replace it with to make sure this bill is effective?
Just as a contingency here, if I may, Mr. Chairman, perhaps the minister feels more comfortable in having Corporal Graham answer the question as to what the $4.6 million program was. And while he was involved--if he was involved--did he believe it didn't work and was not effective, in the Prime Minister's words?
This question is to either of you or both of you. What is going to be put in place to make sure the police have the tools to detect impaired driving to make this law efficacious?
Thank you, Monsieur Ménard.
To be fair, you didn't get much on the bill itself because it's not what the question was directed towards. But that being said, I should indicate to you that as with all bills, this bill is respectful of provincial jurisdiction.
As you know, if a person is found with less than 80 milligrams of alcohol in his or her blood, for the most part, it is regulated by the province. I appreciate that in the province of Quebec there isn't a specific provision with respect to the 50 and 80 provisions. But there are nonetheless a number of provincial statutes on the books that, in my opinion, are actually complementary with respect to the Criminal Code powers.
With respect to your question and your example of a person driving down the street, we're not proposing any changes for the basis upon which you would be pulled over. The same indicia that are in place now as to when and how a police officer may pull you over would continue to apply.
With respect to the training and the individual, I'm going to ask for comments from Corporal Graham.
In my opening remarks, you heard about the regime we are suggesting be put in place. As I indicated to you, Canada is actually playing a bit of catch-up on this. We all recognize that it's not only alcohol; it's drugs and/or alcohol.
I'm really interested in this particular bill. I doubt that there's anybody sitting around this table who hasn't been affected one way or another through a tragedy of some sort, some family that you're acquainted with, in regard to impaired driving. We know how serious a problem it is.
I want to ask you a couple of things. There's a family in my area, good friends of mine, who lost a 16-year-old daughter to a wreck when she was sitting on a two-lane highway trying to turn left. A gravel truck was coming and while she was sitting there, she was rear-ended by another vehicle and, unfortunately, her wheels were turned to the left and she was knocked in front of the gravel truck. Needless to say, it killed her.
During that process, her body was immediately taken to an area and tested in every way, fashion and form, but the driver of the other vehicle--I might point out, it was in a kind of remote area and it took a good 40 minutes for police and ambulances and everybody to get to the scene--who wasn't injured and didn't get hurt, was never tested in any way, fashion or form. It was suspected by the firemen who were the first to get there that the individual, who was a 40-year-old fellow, should have been tested because they suspected he was impaired.
How will this bill change that kind of scenario?
My second question is this. I watch a lot of court cases.... Well, if you want to respond to that first one, I'll get into this in a minute.
The reason I asked the question is that for the deceased no permission was given, yet she was thoroughly tested. Yet the other individual wasn't. I just never could quite figure out why that was the case.
As far as the $1,000 fines go, I appreciate doing what we can. Personally, for impaired driving—I'm pretty radical, though, of course—I do happen to know that 35 years ago in the county I lived in, in the States, if you were caught driving impaired you lost your vehicle--no questions asked. It became the property of the county immediately. Now, you want to talk about deterring impaired driving; that did it. I know of a couple of fathers who were very unhappy with their sons, because it didn't matter if it was your vehicle or the company vehicle or your dad's.
But I'm really concerned about a $1,000 fine. I'm watching the court cases in my riding and there are some pretty hefty fines, but it doesn't seem to slow it down. Every week there are more of the same types of charges. Nowadays, in pretty nearly every case where they have an impaired driving charge, they also have a possession charge of a drug; they find drugs within the vehicle. Most of these are young people, and that really disturbs me because I thought you had to be 18 to buy booze, but these are 16- and 17-year-olds, a great deal of them.
I'm wondering, where's the investigation on who bought them the booze? If they're too young to even have it, how did they get it? These kinds of problems seem to keep multiplying.
My question is, does the penalty from this bill apply to young offenders 16 and 17 years old? If not, could we do that?
There are currently 2,428 police officers who have received training in standardized field sobriety tests. They run the gamut from every municipal, provincial, and regional agency, as well as the provincial police forces in Ontario and Quebec, the RCMP, and the Department of National Defence police. The same goes for those trained as DREs.
In 2003, when we took the program national--previous to that it was just in British Columbia--the decision was made to ensure that we trained police agencies right across the country regardless of what organization they're from. I can give you the exact numbers; I don't have them with me. I have a breakdown by province and whether they're municipal, regional, or provincial, as well as the RCMP.
The numbers are highest for the RCMP. The program started in British Columbia and ran there for 10 years before it went national. The RCMP are the provincial police in B.C. The split there is about two-thirds RCMP and one-third municipal, and the same would go for those who receive the training.
Nationally, it's the opposite. We're sitting around 18% to 20% in the RCMP who are trained, whereas the rest are made up of other agencies. Depending on what province it is, the numbers are different. The RCMP don't police here in Ontario, so we have very few people who are trained as DREs or are SFST trained.
Quebec has one DRE. She is with the Gatineau police. Over the years we've trained members of the SQ as well as the Montreal city police, but they didn't follow through with the training. Last year the Province of Quebec took the stand that until the legislation is passed giving us the authority to have a demand for the drug evaluation, the police forces were not to participate in the training. That's why there's nobody trained in Quebec. We are prepared to do the training there, but for reasons that are beyond our control, we can't.
There was a needs assessment in 2003 as well. Every police agency was asked to submit the questionnaire. The onus was on them to let us know what they thought, because that's what we use to prioritize the training. Those agencies that said they wanted the training are getting it; those that said they don't are not on the priority list. When we have a demand for training, we go to that list to ascertain who should receive priority training.
I would guess the defence counsel, when they come here, will not be big fans of this particular legislation.
We've been struggling with the issue of evidence to the contrary, and drugs. Basically, in 1999 a parliamentary committee, which reviewed all of the impaired driving laws, identified these as things that we should be working on. We went down what I'd only call the wrong path, as it turned out, with respect to evidence to the contrary.
We were going to try to follow what they do in Australia and New Zealand, which is basically that you fail, and that's very nice, but now if you want to challenge it, you'd better go and get yourself a medical test. When we took that out beyond our policy types and talked to the police, they said, at 2 o'clock in the morning in rural Saskatchewan, you're going to send somebody out to try to get a blood test? It wouldn't work. It would be an ineffective defence.
That's why we then, working with the experts from the Canadian Society of Forensic Science, came up with the machines as they are now, which are reliable. The machines produce printouts, and the legislation allows these printouts to go in, which will show that the machine was working before it took the sample and it was working right after it took the sample, so it was working when it got the sample. I'm not aware of any others who have been opposing it.
As for the drug recognition part, this is the third time we're trying to get this through Parliament. I believe it's accepted pretty well everywhere that this is the only reliable program we can find now. There is no magic technological bullet yet.