I call the meeting to order.
Good morning, ladies and gentlemen. Welcome to this meeting of the Standing Committee on Justice and Human Rights, as we continue our study of Bill an act to amend the Criminal Code on passive detection devices.
For the benefit of the members of the committee, we're going to be hearing from Mr. Mayers first, and then we're going to go in camera after that.
I'm very pleased to welcome Daryl Mayers, who is the chair of the alcohol test committee of the Canadian Society of Forensic Science. We had a a lot of discussion at our meeting on Tuesday about the reliability of passive detection devices, and we're very interested to hear from an expert as to how these devices work and how accurate they are.
Mr. Mayers, welcome to our committee. It's a pleasure to have you.
Good morning, everyone. Thank you for having me.
The alcohol test committee, or the ATC, of the Canadian Society of Forensic Science has provided scientific advice to the about detection and quantification of blood alcohol concentrations for the past 50 years. We are a group of dedicated volunteer scientists with expertise in breath and blood alcohol testing who are committed to maintaining the consistently high standard in alcohol testing that has become the accepted norm in Canada.
The ATC evaluates equipment for breath alcohol testing; makes recommendations regarding the management of breath testing programs, including the training of personnel and the maintenance of equipment; and makes recommendations on the procedures to be followed in the use of this equipment to ensure that the results are both accurate and reliable.
It's clear that one goal of Bill is to increase the ability of police officers to detect alcohol-impaired drivers with the use of approved—and I emphasize “approved”—passive detection devices, which are designed to detect alcohol in the vicinity of the driver. Passive alcohol sensors have been available for 30 or more years and come in a wide variety of forms from many manufacturers. This is demonstrable for anyone who wants to try it by using nothing more sophisticated than Google.
However, Bill speaks of—and I'm emphasizing—“approved passive detection devices”, and with that characterization places them into the same arena as approved instruments, approved screening devices, and approved blood containers.
Approval of a device, as you all know, is at the discretion of the Minister of Justice. However, the minister relies on the alcohol test committee to test any new products against the ATC's published standards to determine if they are appropriate to be used in Canadian alcohol testing. Therefore, if enacted, Bill would require the ATC to develop standards and procedures for the evaluations. We would have to perform evaluations on the new equipment proposed as passive devices, and we would have to develop operational recommendations and/or best practices relating to the maintenance and use of these devices.
The scientific aspect of the approval process of such devices is going to be extremely costly in both time and resources. As I indicated earlier, the ATC is a committee staffed by dedicated volunteers. While we have the support of our home laboratories, we also have our primary duties to our employers, which as busy forensic scientists can be onerous. All of the activities of our committee, including evaluations, have traditionally relied on our membership from each of our regional laboratories and have been largely done on our own personal time. The potential influx of numerous new devices seeking approval as passive detection devices would stretch our current resources past the breaking point.
Moreover, even the existing approved devices that have the capability for passive testing—which I have brought with me today and will be happy to demonstrate for those interested—would require further evaluation to demonstrate their compliance with the newly developed alcohol test committee standards. While these obstacles are not insurmountable, they can only be overcome with time and/or additional resources.
It's clear that these devices test for the presence of alcohol. They are not a flashlight or a tape recorder, and any suggestion that the contemplated devices need not be approved is contrary to our shared goal of ensuring that only reliable and accurate products be utilized as part of an alcohol testing system in Canada.
There is little doubt that these devices can be effective if operated carefully and according to proper procedure, but since they are designed to detect alcohol in the environment proximal to the driver, there is no direct correlation with the blood alcohol concentration in that driver. This is very different from approved screening devices and approved instruments, and allows for a much greater influence from the environment if they are not properly utilized. For example, these devices have been noted to be less reliable if windy conditions exist if the officer deploying the device does not take the appropriate precautions. The above scenario could result in a false negative and allows the potential for an impaired individual to avoid detection.
With these devices, there will also be the constant spectre, real or hypothetical, of false positives arising from the contents of the car rather than the driver. Any suggestion of a false positive has enormous implications to any litigation arising from the use of a device.
There are also some further considerations. For example, once the devices have been approved by the alcohol test committee, all of our individual forensic laboratories will need time to develop region-specific recommendations for calibration, training, and operational procedures for the device picked in their jurisdiction, and all our police services will need to act upon these recommendations.
Furthermore, it's the experience of the alcohol test committee that even the introduction of a newly approved instrument can be challenging in and for our courts. The introduction of a novel type of testing with completely unfamiliar devices will undoubtedly be the subject of lengthy litigation involving scientific staff from all the forensic laboratories across the country.
In light of the concerns raised above, the alcohol test committee feels that while approved passive detection devices could offer some advantage in the detection of alcohol-impaired driving, the overall cost of implementation and maintenance of this strategy outweighs the benefits. Practically, with the current resources available, the first use of approved passive detection devices in the field could take years following the enactment of the legislation.
As an alternative, the alcohol test committee recognizes that another bill, Bill , which is currently before the Standing Committee on Public Safety and National Security, includes a provision for what is known as random breath testing of drivers for the presence of alcohol. This measure uses technology that is currently employed by police services, is supported by the regional laboratories, and has met the standards of the alcohol test committee. Random breath testing has been demonstrated to effectively diminish alcohol-impaired driving in jurisdictions where it has been implemented. This measure could be implemented as soon as the bill is enacted, with no lag time or need for additional resources.
In summary, it's the consensus of the alcohol test committee that random breath testing can achieve the goal of decreasing alcohol-impaired driving without the substantial costs involved with the implementation of a new system using approved passive detection. Finally, it goes without saying that if this bill becomes law, notwithstanding the submission from my committee, we will support its implementation to the fullest of our abilities.
Thank you very much. I'm happy to take any questions that the committee has for me.
It is a fair assessment.
I make that submission based on my knowledge of how long it takes us to do our approvals now on approved screening devices and approved instruments. Through no fault of the volunteers on my committee, it takes quite a long time to get those done. We do them by two independent laboratories, so we must have two full independent validations done prior to this committee sitting down to assess it.
I know, having been on this committee for several years and having been vice-chair and chair, that despite our best efforts, speeding that process up it is difficult while working full time and maintaining our own workloads.
Our concern is that there are numerous devices out there that purport to be passive alcohol detectors. To use an analogy, we need to winnow the wheat from the chaff there. Some of the materials will not be acceptable in Canada. However, until we have a sense of how many things are coming in the door, we remain a little apprehensive about the time it would take.
Now, since I'm in front of a government body, this is where I make my pitch. Given resources, we could hire staff and we could probably do evaluations more quickly. That has not been the traditional way that we have done it in the past, but we do have provisions in the society for that to happen. We just can't do it with our current funding.
Well, certainly I can speak somewhat to the temperature issue. That paper is American, so I think they said it was 48 degrees, which we all know to be Fahrenheit.
These devices—at least the ones I'm familiar with, and the ones I would recommend—utilize fuel cell technology as their mechanism for detecting alcohol, and fuel cells can be affected by cold weather. What will happen if they're cold is that you will get an underestimation of the actual result. That means that it will have a false negative, potentially. That's true of the approved screening devices as well, which is why we instruct our officers when they're doing snowmobile patrol, for example, to keep it inside their parka.
I don't know the specifics about some of the devices that are out there, or how they're protected against the cold, but it could cause a false negative. The alcohol sensor, as a fuel cell, will not cause a false positive, which is something that is very encouraging—to a forensic scientist, anyway—by having it cold, nor will heat cause false positives.
With regard to damp conditions, once again I think this comes back to my earlier testimony that the environmental conditions are far more important with these devices than they are with anything we've ever tested before. We'd have to turn our minds to that very, very carefully. The study you've alluded to with the windy conditions was done by NHTSA in the United States. They produced a breeze in the lab that I think was characterized at 0.5 miles per hour. We're Canadians. That's nothing up here.
These are just currently used, to the best of my knowledge, as ASDs.
In order to get this device, the one from Dräger Canada, into a passive mode, you have to get into the administrator's second-level menu, which is password protected. With the greatest respect to all of our road officers, they can't get access to that, because there's a lot of stuff that can go wrong if they get access to that second menu.
That said, once programmed, it can be used passively or as an approved screening device. With this device, you access the passive function through a menu. The officers can access it, turn it into a passive device, use it as a passive device, and then switch it at roadside themselves to use as an approved screening device.
The short answer is no. I've never seen that suggested. The actual reaction produces carbon dioxide.
I said I wasn't going to give you my lecture, but I will give you a lecture now.
The alcohol is broken down first into acetic acid, which we all know as vinegar, and in the process of oxidizing it from an alcohol to that acid, it is further broken down to carbon dioxide and water. In that process, it releases electrons. You're absolutely on point. The electrons released during that process are proportional to the amount of alcohol that is present, and that's how these things are calibrated to give you a result.
Environmental conditions could have an impact on that, as could other substances. These substances, as I said, will not react to certain compounds, but they will react to others. Wood alcohol—methanol—can cause a reaction on these devices. When you're getting it directly from an individual, the individual makes it more specific. Those of us who know will not drink wood alcohol because it makes you go blind and will end up killing you, so we know, because of the specificity of the human body, that when you're giving a direct sample into these devices, it's not going to be a methanol result.
Environmentally, at this point I won't be as confident until I do further study and until we set some standards and look at interference a little bit more closely.
The answer is that it will probably have a different standard than our others.
Our approved instrument standards are more rigorous than our approved screening device standards because they are fit for a purpose.
Evidentiary-approved instruments are the instruments that can mean an individual will be found guilty or not guilty in a court of law. Alcohol screening devices don't have that impact, and as a result we don't have the same rigour for our standards, nor are they operated with the same rigour. In the case of approved instruments, we demand that they be tested for accuracy and reliability each and every time they are used. In the case of approved screening devices, the alcohol test committee recommends that they be calibrated or checked every month, not every time they're utilized.
With the passive detectors, when my subcommittee for standards meets to develop standards, they may develop standards that are slightly less rigorous than even the ASD, but I won't know until we can look at the whole subject area a little more closely.
Well, I'll try to answer as well as I can.
My experience with police officers, and I mean no disrespect, is that if you give officers a tool with all kinds of caveats attached to it—you have to do it this way, that way, make sure the wind isn't blowing, have your back to the wind, make sure you don't have the window open, check the car for spills—and you expect the officer to do in a very rapid time frame, the more likely it is that one step or two steps will be missed, and that is a very serious thing once we come to litigate that case.
Counsel for the defence have an incredibly important role in our society, but they are extraordinarily good at looking at procedures. The minute there's a small deviation, even though it may have no implication whatsoever, they will be litigating that to the end of the earth to try to establish case law. That's fine. It's not a concern for me as a scientist. However, if we can avoid that sort of burden on our courts, I think it would be useful.
That said, it could be useful for individuals who are very conscientious and use it appropriately. I think it could probably add to the arsenal that police have to detect alcohol in people or around people who are driving.