Thank you very much, Mr. Chair.
Thank you for the invitation to appear before you today on Bill . I'm accompanied by Madam Kosseim. As you may be aware, we appeared before the public safety and national security committee, SECU, on a similar private member's bill, , a year ago. I would stress from the outset that our office fully understands the severity, societal impact, and clear dangers of impaired driving. For governments and law enforcement, combatting impaired driving is clearly a compelling state objective, given the tragic impact on Canadians each year.
In our testimony before SECU last September on the other bill, we acknowledged the pressing nature of the state objective but also posed three questions related to the necessity and proportionality of the new provisions. Those questions included consideration of how invasive this new power could be, how necessary it is to move away from the suspicion standard, and whether there is any concrete evidence as to how effective the proposed changes might be.
In the interim, since our last testimony and the introduction of this bill, the government published a charter statement and a legislative backgrounder, which attempt to deal with these questions. While we might disagree on some particulars, for instance on the reasonable expectation of privacy of individuals subjected to new mandatory roadside testing, on the whole we find these explanations satisfactory.
For instance, these materials provide information on the limitations of the current system in Canada and the effectiveness of models outside Canada in reducing deaths due to impaired driving. On the whole, we think that the government's answers to our questions on necessity and proportionality, if not perfect, are in most ways adequate.
All that said, however, there are some other substantive privacy issues we would like to raise, including the broadening of purposes for which test results and analyses of bodily samples can be shared and how this sensitive data would be handled.
Clause 15 of the bill, which would add subsection 320.36(2) to the Criminal Code, permits the sharing of the results of any evaluation, physical coordination test or analysis of a bodily substance for the purpose of the administration or enforcement of a federal or provincial act.
Currently, the use and disclosure of this type of information is restricted to specific Criminal Code, Aeronautics Act or Railway Safety Act offences, or to the administration or enforcement of provincial law.
As a consequence, the bill would widen the potential uses and purposes for which such results may be put by authorities.
While road safety is clearly a compelling state objective, we do not see how the numerous other administrative objectives would justify the sharing of test results.
In your study, we recommend that the committee examine which specific laws are contemplated here and consider restricting sharing to the enforcement of statutes with sufficiently compelling state objectives that justify sharing sensitive information originally obtained without grounds.
If you are not convinced, you could limit sharing under the system in the subsection in question only to federal or provincial laws dealing with transportation security.
We would also ask whether testing results are retained on individuals who are not found to be in violation of the regulatory limits.
Unrestricted retention of negative test results or false positives would represent a privacy risk if clear ground rules around their required destruction are not set in advance.
Thank you for the invitation. I look forward to answering your questions.
Let me first thank you, the chairs and the members of the committee, for this invitation to present the most recent statistics on impaired driving in Canada.
Today, I am going to give you an overview of the most significant and most recent indicators, derived from various sources of data on the issue.
First, let me highlight some of the key and most important findings in relation to impaired driving in Canada.
Only a very small proportion of people drive while being impaired, but of those who do most are doing it recurrently. Impaired drivers also more often adopt other at-risk behaviours such as being a passenger of another impaired driver, driving faster and more aggressively, not fastening their seat belt, and using a cellphone without a hands-free device. Police report that statistics show a sharp decline in impaired driving over the last 30 years. Recent declines were more pronounced among categories frequently targeted by campaigns and policies, for example, among young drivers, males, and during the night.
Finally, drug-impaired driving incidents are less likely to be cleared by a charge, they take more than twice the time to be completed in courts than other alcohol-related cases, and they are less likely to result in a guilty finding.
First, I am going to talk about self-reported data from a sample of close to 32,000 Canadians in a sample survey.
Self-reported data on drug-impaired driving are very limited at the moment. That is why I am going to focus here essentially on impairment by alcohol.
The table on slide 3 shows the proportion of drivers who report having driven after consuming two drinks in the preceding hour, at least once in the preceding 12 months.
Overall, a little over 4% of Canadian drivers report having driven after consuming two alcoholic drinks in the hour before getting behind the wheel. That figure rises to 5% when motor boats, ATVs, or other recreational vehicles are included.
As an indication, in 2015—this is not on the table—almost 3% of Alberta drivers, the only place where that kind of data is available, reported that they have driven after consuming drugs and 9% reported doing so after consuming alcohol. In other words, in Alberta, drugs were at the origin of about one-quarter of impaired driving cases self-reported in this survey. That could indicate that current police data significantly underestimate drug-impaired driving, since they represent only 4% of cases recorded by police services.
In slide 4 you can see the number of times impaired drivers reported driving while impaired in the 12 months preceding the survey. A relatively small proportion of drivers reported that they had driven while impaired in the past 12 months, but of those who did, the vast majority did it more than once. On average, impaired drivers reported six occurrences of impaired driving in the previous 12 months. Our court data also show that high proportions of offenders had been previously accused even more so for the most serious offences.
Slide 5 shows the proportion of drivers who report having driven while impaired, broken down by age group. You can see that young adults between 25 and 34 years old are more likely to drive while impaired.
Impaired driving is not a behaviour in isolation. It is often one of a number of at-risk behaviours. Those who drive faster and more aggressively, without seatbelts, or while using a cellphone without a “hands free” function and, above all, those who ride as passengers of an impaired driver, all report driving while impaired in significantly higher numbers than others.
Moreover, other research also shows that the risk of accidents increases when passengers are intoxicated too. So it makes sense to target the other on-road behaviours first; being a passenger with an impaired driver could be an effective way to target impaired driving.
Slide 6 deals with police-reported data. The table traces the impaired driving rate from the mid-1980s. You can clearly see that the rate of impaired driving has declined sharply in that period, as has already been mentioned.
In 2016 about 67,000 impaired-driving incidents were reported by police forces. That translates to a rate of 186 incidents per 100,000 population, a rate that is three times lower than 30 years ago. By contrast, drug-impaired driving is on the rise, although still accounting for a small proportion of all police-reported impaired driving. Even though impaired driving has decreased sharply over the last 30 years, it remains one of the most frequent criminal offences reported by the police. In fact, when taking into consideration crimes that do not come to the attention of the police, impaired driving is likely the most frequent crime. It is one of the leading criminal causes of death.
Slide 7 shows a graph of police-reported impaired driving rates by province and territory. Like crime in general, we note important variations in impaired driving across the country. The lowest rates are recorded in Ontario and Quebec, and the highest in the territories and in Saskatchewan. As for police-reported drug-impaired driving, the variations are relatively similar, with the highest rates being recorded in the Atlantic.
In slide 8 we have a chart showing the impaired-driving rates by age of licensed drivers for 2009 and 2016. As you can see, impaired-driving rates declined amongst all age groups, but the opposite was observed for drug-impaired rates, which increased for all age groups. The greatest declines in overall rates were among the youngest age group. It is worth noting that some provinces recently implemented zero tolerance for young drivers. Coincidentally, these provinces are where the largest declines in youth impaired driving occurred.
Another large decrease was observed at night. Although almost half of all of the impaired-driving incidents still happen between 11 p.m. and 4 a.m., about 70% of the overall decrease in impaired driving in the past six or seven years occurred during that time period. Targeting peak period is known to be one of the most effective ways to combat impaired driving. Of note, though, is the fact that our data show that drug-impaired driving does not have strong peak periods. There are just about as many drug-impaired driving incidents early in the evening as there are during the night, which may cause a potential challenge in addressing the issue of drug-impaired driving.
In slide 9 you can see a chart on the clearance status by type of substance causing impairment. As you can see, alcohol-impaired drivers are more likely to be charged than drug-impaired drivers. However, it's interesting to see that the gap between alcohol and drug impairment has narrowed, especially since the implementation of drug recognition experts in 2008.
We now move to slide 10. I would like to draw your attention to the impaired driving cases brought to court. The cases represent a significant part of the courts' workload. In 2014-2015, actually, the figure was about one case in ten, making it one of the most frequent offences brought to court.
On slide 11, you can see that the median time needed varies enormously with the type of case to be heard. You can see here that the median time for alcohol-impaired driving is 114 days. This is shown by the pale blue line. The dotted red line, showing all other offences, shows a similar level. However, a median time of 245 days, more than double, is required to settle a case involving drug-impaired driving. That is the dark blue line.
On slide 12, you can see that in addition to taking longer to be completed, drug-impaired driving cases are also less likely to end with a guilty verdict. At the national level, 60% of those in drug-related cases are found guilty, while it was 80% for alcohol-related cases.
Our data show that a small number of those driving while impaired do so repeatedly. Impaired driving is associated with other at-risk behaviours on the road, such as being a passenger of another impaired driver on other occasions.
Although a significant decrease in impaired driving can be seen in the police statistics, it is still one of the most frequent offences and the second highest cause of criminal death. The largest declines were recorded among young drivers, an age group often targeted by prevention campaigns. Drug-impaired driving could be more difficult to combat, given that there is no peak period during a day that could be easily targeted. In addition, cases lead to a guilty verdict less frequently, and take more time to be dealt with by the courts.
That concludes my presentation.
I'd like to begin with a video. They always say a picture is worth a thousand words.
I'd like to thank you for inviting me to speak to you on what to me is one of the most important decisions a government can make. I speak to you today not as a legal expert or an organization with vast resources, but as an ordinary citizen, a real victim, and a mother.
Thank you very much for watching that video. That video means a lot to me. It goes with my presentation. It's not only my heartbreaking story, but it's also the story meant to represent what four families go through every single day here in Canada.
On November 26, 2011, my young son Brad and his two good friends were violently killed by a drunk driver. Their fender mowed through my son's car from behind at well over 200 kilometres an hour in a 70 kilometres per hour zone. He drove through Bradley's little car. There was nothing left of my son. He had to be identified by his dental records.
The impaired driver was charged with three counts of impaired driving causing death, three counts of driving over .08, and three counts of manslaughter, for a total of nine charges. He was found guilty, convicted on all nine charges, and sentenced in August 2014 to an eight-year prison term.
Attaching manslaughter to this crime is extremely rare. My son's case was only the 13th time in Canada. The offender was eligible for parole on October 28, 2016. He became eligible for full parole in April 2017, which is only a fraction of his eight-year sentence.
The Canadian public has seen that sentences are already extremely low for impaired driving crimes causing death, and I strongly believe that we are deceiving Canadians with such a reduction of sentences. An eight-year sentence equates to 2.2. That's a mere fraction, considering the severity of the crime that resulted in the horrific death of three innocent young men. Most Canadians don't know that. They believe what they read in the newspapers or see on TV. Eight years, he went to jail for eight years. That's not how it's supposed to work.
It's very difficult for me to write or speak about my son Bradley. Every parent's worst nightmare is that knock on the door by that stranger in the uniform with his hat off.
I assume that you read my “new normal” in my written presentation. I am the mother of a murdered child and there is nothing normal about my life now. It's bad enough to lose your child through absolutely no fault of their own, but to lose your young son so horrifically is something beyond words.
The pain for my loss was in itself very difficult, and it took almost three years and 31 court-related appearances to get from the date of this tragedy to the date of sentencing. I knew that I could never bring my young son back, but I thought I could possibly do something positive that would prevent other mothers from going through a similar tragedy.
I hope everybody is able to read my written brief. My written brief is very thorough in explaining my strong arguments regarding mandatory minimums and deterrence. My focus is on impaired drivers who cause death.
As I see it, our existing situation is four to five deaths a day. We all know those stats. We all know almost 200 injured every day. I try to think why. I think those who know they shouldn't be driving imagine they will get home. The fact is, they most often do get home, and this only reinforces that behaviour.
The chances of getting caught are very low, and if they do get caught, the punishment is very lenient. That's why people who drive impaired think the risk is worth taking.
The probability of being charged if you are a driver who caused death is only 22%, and out of the 22% of people who get charged with impaired driving causing death, only 11% are convicted. I fell into that 11%. I'm considered lucky. I don't feel that lucky. I'll be honest with you. But 78% who cause death are never even charged. They walk free because of loopholes. The case is thrown out of court in the first five minutes. Sentences, on average, are between two and three years.
It seems our justice system perceives these tragedies as just that, an unfortunate tragedy or an accident. When you compare that with other crimes that cause death, it just doesn't make any sense to me. You would be hard pressed to find a Canadian who thinks that our sentences for drunk drivers who cause death are anywhere close to where they should be.
To me, it's very simple. The time does not fit the crime. Somewhere, somehow, accountability should play a part for such a serious crime, loss of life, and not only for the victims but for the general public.
I'll turn to Bill and what I see as deficient in this bill. What I find and what is most noteworthy to me is Bill C-46 contains most of the contents of former Bill and former Bill by filling in some of the loopholes, but it has completely removed the stiffer penalties for impaired drivers who cause death. It also reduces the punishments considerably for the first, second, third, and subsequent offences from what was proposed in these former bills. A $1,000 fine is considered a credit card fine in this day and age, and that's where this bill remains.
In Alberta, if you take one more fish than you're allowed or if you go fishing without a licence, the mandatory minimum is a $1,000 fine. It's the same for impaired drivers.
Essentially, this is the same legislation as our existing legislation from 2008, Bill C-13 regarding impaired drivers who cause death. Shouldn't the first instance be harsh enough so there is no second and third and fourth and until possibly a death occurs?
Bill C-46 does add a small increase depending on your blood alcohol, a raise of $500, and they did add in mandatory breath testing. On random breath testing, I recognize that there is a 20% reduction in deaths quoted by MADD and Dr. Solomon regarding other countries, but this is over a very long period of time, 10 to 20 years. I would suggest that there is more to it than just the component of random breath testing. To me, there are many sides to this coin and over all those years there have to be many other variables included that have factored in.
I would like to know what the sentences are for drunk drivers who cause death in these countries. I believe other variables over such a long period of time such as cultural change really factor in too. With the legalization of marijuana, is this government prepared to give our police forces the resources they need? How will it affect the civil liberties? How will it affect our already overflowing courtrooms? These are the questions that I wonder about.
I will tell you random breath testing would not have helped in many cases that I know. It would play no part to me in hard-core drinkers. The offender who killed my son and his two friends admitted in his parole hearing he drove drunk over 300 times in a five-year period. He drove once or twice a week. When he killed my son and his two friends, he was considered a first-time offender. First time caught is what I call that, and most hard-core ones are like him.
We can't expect random breath testing to be the only answer. We can't assume our police will catch everyone. In 2012, only 5% of impaired drivers who were caught tested at .08, but 64% of those tested at double or more, and those are the ones who kill. There is no certainty or severity in this bill to recognize loss of life or to deter others.
Overall, Bill is considered to be very deficient in changing the behaviours of hard-core, habitual impaired drivers. It would not significantly reduce deaths, at least not until there's a cultural change, and that could take decades. This bill does not recognize causing one or multiple deaths as a serious crime.
Because I know my time is almost up, I'll speak briefly on mandatory minimum sentences.
Five-year mandatory minimum sentences would greatly strengthen the deterrence goals in sentencing. It would provide a level playing field for judges, prosecutors, and defence lawyers, while still leaving a wide area of discretion between minimum and maximum for consideration, such as mitigating and aggravating factors, rehab, etc. A five-year mandatory minimum sentence would not be considered too severe or cruel, considering parole and statutory release dates. Sentences for impaired driving causing death would be commensurate with other serious offences, so it would not be viewed as an accident or an unfortunate tragedy.
On deterrence, the five-year mandatory minimum sentence for impaired drivers causing death is needed, because I believe it would provide a strong general deterrent example to the public that saving the lives of our loved ones is significant, and both the certainty and the severity of the punishment are effective in deterring crime. Deterrence is critical.
Finally, we all know that impaired driving is the number one cause of criminal deaths in Canada: four a day. A car is a deadly weapon. Safety is a non-partisan issue and protecting Canadians should be our government's priority.
On June 16, 2015, the day that Bill was introduced, the former justice minister, the Honourable Peter MacKay, sat me down in a private office here in Ottawa, looked me in the eye, assured me he did not anticipate much opposition to this legislation, no matter who formed government in the fall, and said, “It's a good bill, Sheri.”
I was very optimistic when the new government was formed in 2015. I wrote to all 184 Liberal MPs in January 2016 by email and I hand-delivered a letter. I even blogged my optimism on my website. I have this letter and my blog to hand out. I received six replies. Truthfully, that alone was heartbreaking.
To me, it's inconceivable that impaired driving causing death is not taken more seriously when it comes to punishment. I ask that you review Bill with an open mind and with a particular reflection on the impacts: the deaths, the injuries, the victim impacts, the costs on our society, and the respecting of Canadians' clear demands for harsher penalties. I strongly recommend that the committee support an amendment for the reinstatement of the mandatory minimum sentence for impaired drivers who cause death, as was provided in Bill and Bill . We are all just sitting ducks, every one of us here, including our children and our friends. We are candidates for the next horrific death at the hands of an impaired driver. This is 2017, and it's a choice. In fact, it's wilful.
Sadly, I feel like a nobody. Every day I wake up with the realization my son is gone and it seems that victims don't matter. We have no accountability, no justice, and no deterrence.
I'll close with the hope that special attention be paid to the words of the late , MP for Scarborough—Agincourt, who stated that all MPs should forget their ideologies and work together to get things done for Canadians.
Thank you very much.
Thank you very much, Mr. Chair.
Good afternoon, honourable members. I'm very pleased to be here today on behalf of the Insurance Brokers Association of Canada, or IBAC, to contribute to our public discussion on Bill . As a former member of the House of Commons, I must say it's a pleasure to be here although somewhat strange being on this side of the table. Let me also take the opportunity to thank each of you for your public service.
IBAC is the national voice of property and casualty insurance brokers and a strong advocate for insurance consumers. Through our 11 member associations, we represent over 36,000 brokers who are small-business owners and community builders in virtually every city and town across the country. IBAC also has the important role of advocating on public policy issues that affect insurance brokers and consumers, and it is through this lens that we appear before you today.
I would like to state at the outset that IBAC strongly supports the objectives of this bill: reducing impaired driving and improving road safety. Every day insurance brokers deal with the aftermath of traffic accidents caused by impaired driving and they can attest to the physical, emotional, and financial devastation that result from such incidents. Ms. Arsenault has just shared her own very personal and powerful story.
We are optimistic that the measures contained in Bill will make a difference in road safety. Bill C-46, as you know, proposes mandatory alcohol screening, which has proven to be very effective in several jurisdictions, for example, Australia, which brought in random breath testing over 30 years ago. The results speak for themselves. In the state of Victoria alone, the proportion of impaired driver fatalities has dropped dramatically from 49% in 1977 to 15% in 2014.
We are also in favour of measures to close loopholes, which allow some impaired drivers to avoid penalties, and in favour of the enforcement of stiffer penalties to act as deterrents. The legalization of marijuana of course raises a number of concerns with respect to drug-impaired driving. Many in society expect that marijuana use may become more prevalent and socially acceptable, so there could potentially be a corresponding increase in drug-impaired driving.
There are still many questions surrounding the impact of drug-impaired driving on the insurance industry. Specifically we look forward to seeing further research and testing of reliable detection tools to support the enforcement of this legislation. As the policy picture becomes clearer, the insurance industry will make the necessary adjustments.
Again, we support the initiatives that will reduce the number of deaths and injuries caused by impaired drivers and believe that the following considerations will be of utmost importance: one, increased penalties and the removal of defence loopholes; two, further research into roadside tests for drug impairments; and, three, public awareness campaigns. We are confident that with stronger laws and regulations in place, real progress can be made.
Thank you for your time and your attention. It is now my pleasure to pass the presentation to Mr. Scott Treasure, the president-elect of IBAC.
Before I start, I want to thank Sheri for sharing her difficult and moving story in relation to the topics we're discussing tonight. It puts my own trepidation about coming before you guys into the proper light, considering the challenges that she goes through every day.
I'm here today representing IBAC as president-elect. I've been an insurance broker and active in my professional association in Alberta for many years. Our members see first-hand what our clients go through as a result of impaired driving. That's why emphasizing road safety and driver responsibility is an important part of the work we do.
Brokers in Alberta and across the country participate in a number of initiatives against impaired driving of any kind. For example, many brokers support and volunteer with Operation Red Nose during the holiday season, ensuring that drivers have access to a safe and sober ride home. Since its creation in 1984, Operation Red Nose has become the most important road safety campaign against impaired driving in Canada.
In Ontario, brokers sponsor the Ontario Association of Chiefs of Police drive safe campaign, aimed at increasing public awareness on impaired and distracted driving. In addition to the devastating injuries, loss of life, and serious criminal penalties, there are also significant financial and insurance-related consequences, which provide additional deterrents.
While auto insurance coverage varies from province to province, if you are illegally operating a vehicle, as is the case with impaired driving, all policies limit the liability to the statutory minimums and accident benefits. All other coverages are denied. You will also be subject to drastically higher insurance premiums, and in the case of repeat offences, you may find it hard to even get insurance coverage at all.
When coverage is denied, it is important to have supporting evidence. Alcohol-impaired driving is relatively easy to quantify through a Breathalyzer test. Drug impairment is more subjective. It is not clear that there is an accurate and reliable test currently available, and until the science evolves and precedents are set, there could be a period of uncertainty in the insurance world.
I only call a couple of examples into play here. Obviously, you're aware of other jurisdictions that have legalized and have gone slightly different ways when it comes to the blood concentration level of THC. Within those, I believe the fear is that there could be significant court challenges with that blood concentration level. Oregon, I believe, is not using the blood concentration level at all. I think Colorado is looking to more roadside safety.
The other pieces are statistical uncertainties and stressing the importance of accurate data collection in those jurisdictions where it has been legalized. On the idea of of marijuana-related deaths or marijuana-related accidents, in my industry the more important piece would be who's at fault in those accidents. That's an important piece that we need to keep in mind.
In the meantime, education is critically important, and I encourage the government to put as many resources into this as possible. I know that brokers will continue to actively contribute to increasing public awareness of the dangers of both alcohol-impaired and drug-impaired driving. Like everyone else, we want to get impaired drivers off the road and, better yet, prevent them from driving in the first place. We believe the proposals contained in Bill will contribute to that outcome.
Ultimately, whatever the legislation is, our industry and the thousands of brokers across Canada are equipped to help Canadians with these changes.
Thank you for your time. We would be happy to answer any questions you may have.
Mr. Chair, vice-chairs, and members of the committee, good afternoon.
The Quebec Bar thanks you for inviting us today to share our views with you on Bill .
My name is Ana Victoria Aguerre. I am a lawyer and secretary to the Quebec Bar's criminal law committee. Today, I am accompanied by Pascal Lévesque, the president of the criminal law committee, and by Benoît Gariépy, a member of the criminal law committee, but also a lawyer who specializes in impaired-driving cases.
As you know, Bill introduces a series of major amendments to the Criminal Code, specifically by proposing a new impaired driving offence, new powers for the police in order to test for it, and new rules for the administration and admissibility of evidence in such cases.
At the outset, we must stress that the Quebec Bar supports the lawmakers' intent that led to the introduction of Bill . Impaired driving is a major issue of public safety that clearly must be addressed. Nevertheless, the solutions that Bill C-46 proposes in this respect seem to us to be problematic in their implementation and, in our view, go far beyond what is reasonable in terms of the basic rights of the accused.
Given the amount of time we have been allowed for our presentation, we will move directly to the crux of the matter.
The Quebec Bar is opposed to a number of the proposed amendments in the bill and is concerned that some of those amendments will be challenged in the courts. We are concerned about the potential impact of these amendments, the majority of which seem disproportionate against the background of deterrence and awareness that the bill seeks. The concerns are specifically about the fundamental rights that everyone enjoys to be presumed innocent and to make full answer and defence.
I will now step aside to allow Mr. Lévesque to continue.
Our analysis of Bill focused on part 2. We identified two themes. I will deal with the first theme and Mr. Gariépy will deal with the second theme.
My theme deals with the reliability and precision of results from the approved screening devices, and with issues related to admissible evidence and defence.
First of all, we understand the lawmakers' intent in clarifying the status of the law in the light of the Supreme Court of Canada's decision in St-Onge Lamoureux. Nevertheless, the implementation of that intent is problematic: it could have the effect of unreasonably limiting the defence on the reliability of the results of the devices and, ultimately, on the right to be presumed innocent.
The bill establishes the premise that, when certain conditions are met, the results of the test of the samples conclusively demonstrate the person's alcohol level at the moment the test was taken. The bill requires prosecutors to disclose only information related to those conditions. For other information, the accused have to apply to the court and demonstrate the likely relevance of the information they wish to obtain.
This mechanism concerns us. First, it reveals a fragmented reading of the Supreme Court's teachings in St-Onge Lamoureux. Of course, information about the maintenance and the operation of the devices at the moment of the tests is relevant and must be disclosed, but there is also information on the maintenance and use of the same devices in the past, which can also raise reasonable doubt as to the reliability of their results.
By placing the burden of demonstrating to a judge the likely relevance of other information on the shoulders of the accused, we risk requiring expert testimony in order to have the evidence communicated, which is a fundamental right to justice recognized in the charter. As the law currently stands, judges have previously required expert testimony to obtain that communication. The bill runs the risk of worsening that trend. The risk is that the result will be two tiers of criminal justice: the accused who can pay for expert testimony, and everyone else. Basically, the results would be so difficult to challenge that there would be a danger of ending up, in practical terms, with a presumption that is impossible to refute.
I will now let Mr. Gariépy talk to you about the second theme.
The second theme pertains to the modified offence of driving while impaired to any degree, the new mandatory screening power for police, and the new power allowing the police to take samples of bodily substances on the basis of suspicion alone.
According to the Quebec Bar, the modified offence of driving while impaired to any degree is for all practical purposes a disguised zero-tolerance regime. The notion of impairment to any degree is tantamount to saying that, unless the person is sober while driving a motor vehicle, they can easily be accused of driving while impaired. If the person has consumed even a single glass of wine or one beer, a police officer can stop them and lay charges if they have observed what they deem to be less than perfect driving. This criterion is therefore much too broad and, in our opinion, is clearly excessive as regards the stated objectives of public safety and deterrence. It leaves too much room for subjective opinion of what constitutes impaired ability to drive a motor vehicle.
In this regard, I would like to mention two points made by the Court of Appeal of Quebec. First, the court noted, roughly translated, that:
|| [...] poor judgment on the part of an automobile driver does not necessarily indicate alcohol impaired driving [...]
The court goes on to state, roughly translated, that:
||The criminal offence is not driving while impaired—impairment which can be caused by fatigue, stress, a physical or mental disability, etc.—but rather driving while impaired by the consumption of drugs or alcohol.
Through its criminal law committee, the Quebec Bar, which as you may recall is made up of lawyers as well as crown prosecutors, has expressed concern that such a broad and subjective criterion could lead to a criminal record for an individual, with all the attendant negative life consequences.
Still with regard to clause 320.14 of the bill, the Quebec Bar has reservations about this amendment owing to the period of time during which a person may be accused of this offence. The bar notes further that driving while impaired by drugs or alcohol can be evaluated up to two hours after the person has driven. Once again, we question how proportional this new criterion is as regards the presumption of innocence, in particular, since subclause 320.14(5) significantly reverses the burden of proof.
Moreover, in addition to this new zero-tolerance regime, there are provisions for screening and sampling that are just as worrisome for the rights of accused persons. The bill gives police mandatory screening powers in exercising their power to intercept a vehicle. Clearly, the police officer has full discretion to ask any driver to submit to a breath test.
The Quebec Bar is once again very concerned by the extent of the discretionary power afforded police officers under this new regime. Of course, we take it for granted that police officers receive and will receive the necessary training to manage this formidable discretionary power, but the fact remains that there are still risks of profiling, be it racial or demographic, based for instance on the lifestyle or consumption habits of a certain part of the population.
To properly express our concern, we refer to the Supreme Court of Canada decision in Bain, 1992, which says the following.
|| Unfortunately it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively. The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control.
If this undertaking applies to the crown, in our opinion it applies equally if not more so to police officers in the field.
Finally, in addition to this power, police officers will also be able to require a blood sample if they have reasonable grounds to believe that the person is driving while impaired to any degree owing to the effects of a drug, therefore even if the driver is nearly sober.
Once again, we are worried about the possible consequences of the exercise of such powers, but also about the consequences of how law enforcement views this amendment. Clearly, driving that deviates to the slightest degree from what the police officer deems to be normal driving could be considered an offence and open the door to the exercise of major and very intrusive sampling powers on the part of the police, as well as, ultimately, charges being laid against persons for conduct that is incompatible with the perception of a criminal offence.
Thank you once again for this opportunity to share our thoughts on Bill . We hope they will be useful to you in your considerations.
We are of course available to take your questions.
Mr. Chairman and committee members, thank you for the opportunity to address you today.
My name is Doug Beirness. I am a senior research associate and subject matter expert on impaired driving with the Canadian Centre on Substance Use and Addiction, known as CCSA. CCSA was created by Parliament as a non-governmental agency to provide national leadership and evidence-informed analysis and advice to address substance use in Canada. I am also a member of the Canadian Society of Forensic Science's drugs and driving committee, the DDC. The DDC will make a presentation to this committee separately next week.
Today I speak to you from my position with CCSA and my many years of experience in research in the area of impaired driving. Rather than concentrate on statistics, just let me say that over the 35 years I have been doing research in this field, I have witnessed tremendous reductions in the number of Canadians killed each year in motor vehicle crashes involving an impaired driver. Still, a third of traffic fatalities in this country involve alcohol. In addition, as we have developed the tools and the means to investigate appropriately, a great deal has been learned about the dangers associated with the use of drugs by drivers. Today drug use rivals alcohol as a major contributor to serious crashes in this country.
In the time I have today, I would like to address several issues that are mentioned in Bill . I'll start with mandatory alcohol screening.
Forty years ago, Parliament gave police the power to stop vehicles to check drivers for alcohol use. However, the power to demand a breath test was contingent upon the officer having a reasonable suspicion that the driver had consumed alcohol.
Although the threshold for suspicion is not high, it's been demonstrated that police officers vary considerably in their ability to detect alcohol and assign the symptoms of alcohol use. I don't say this to discredit the work of our police officers. I raise it to illustrate the fact that the detection of alcohol can be difficult, especially in a brief checkpoint at the side of the road. If a driver escapes detection, it serves to reinforce the behaviour and increases the likelihood of its reoccurence.
As you heard earlier today, the Australians pioneered the concept of random breath testing, or RBT, as part of a large-scale effort to reduce drinking and driving that included a very intense year-round program of police checkpoints, during which virtually every driver was tested for alcohol. The goal was, and remains, to test every driver in a state at least once a year.
The strategy worked. When used in this fashion, mandatory breath testing increases the rate of detection of impaired drivers and serves to increase the perceived and the actual probability of apprehension, both of which are key factors in general deterrence.
In the past, any suggestion of random or mandatory breath testing was quickly dismissed as a violation of our rights. Perhaps it's time to reconsider that position. Think for a minute of what we go through to simply board an airplane. By comparison, providing a simple breath test at the side of the road is a small sacrifice to help ensure the safety of all road users. The need is great, the benefits are substantial, and the sacrifice is really minimal. The evidence strongly supports providing police officers the opportunity to test drivers for the presence of alcohol at any time, regardless of suspicion.
Oral fluid drug screening is the next topic I'd like to address. Approved alcohol-screening devices, that is, portable Breathalyzers, have been widely used throughout Canada since the 1970s to provide a quick and valid assessment of drivers who have been drinking. Over the past few years, there have been increasing calls for a similar device that could be used at the roadside to quickly and reliably assess drug use by drivers.
Such a device simply does not exist. Oral fluid screening provides a partial solution. A small sample of oral fluid can be collected and screened in a matter of minutes to provide an indication of whether a driver has ingested a potentially impairing substance. The Canadian Society of Forensic Science's drugs and driving committee tested three such devices, and determined that they were able to detect cannabis, cocaine, and methamphetamine with a high degree of accuracy.
Oral fluid screening devices have the potential to be a valuable tool for officers engaged in drug-driving enforcement, but they're not the solution to the problem.
Although oral fluid screening can reliably detect three of the most common substances used by drivers, there are many other substances that are not detected, for example, opioids and benzodiazepines. More important, the devices only provide an indication of drug presence, not a drug concentration nor an indication of impairment.
As is currently the situation for alcohol, the officer would need to have a reasonable suspicion of drug use before requiring a driver to submit to oral fluid drug screening. Establishing suspicion of drug use can be significantly more challenging than it is to detect the presence of alcohol. It requires that officers be trained to recognize the signs and symptoms of various types of drug use.
The current training course for the standardized field sobriety test should be expanded to include training in the common signs and symptoms of drug use as well as the use of oral fluid screening devices. These training programs need to be developed and implemented as soon as possible to help ensure that our police are prepared for the legalization of cannabis.
The implementation of oral fluid screening devices will not eliminate the need for the drug evaluation and classification, or DEC, program. In fact, providing officers with oral fluid screening devices and enhanced skills in the recognition of signs and symptoms of drug use may actually enhance the need for the DEC program.
An important point I would like to convey is that a strong DEC program is an essential component in the enforcement of drug-impaired driving laws. More officers will be needed to ensure that all suspected drug-impaired drivers can be evaluated within a reasonable time following arrest.
Bill also reaffirms the recent Supreme Court decision on the admissibility of evidence provided by a DRE on impairment by type of drug without the necessity of qualifying the officer as an expert. This strengthens the value of the DEC program and reinforces the requirement to maintain the stringent standards established for the program by the International Association of Chiefs of Police.
We believe the DEC program is an important element in the enforcement of drug-impaired driving laws in Canada. It requires strong national leadership to ensure the fidelity of the program, to coordinate and facilitate training with provincial and municipal police agencies, to share information, to monitor progress, and to ensure that there's ongoing education and training.
In essence, per se limits such as 80 milligrams per decilitre for alcohol are a legal shortcut. In theory, they negate the necessity to prove the driver was impaired. Showing that the driver had an alcohol or drug concentration in excess of the prescribed limit is usually sufficient. Such laws rely on the scientific evidence demonstrating the relationship between the concentration of alcohol or drugs in the blood and the extent of impairment and/or risk of crash involvement.
The value of alcohol per se laws, however, goes beyond the apparent advantages to adjudication. Per se laws have been shown to have a general deterrent effect as well, reducing the likelihood that people will operate a vehicle after consuming too much alcohol. There's no reason to believe that a general deterrent effect would not be evident with drug per se laws as well.
Unfortunately, the research on which to base per se laws for drugs is not as definitive as it is for alcohol. Drug effects can be quite variable. Studies assessing the risk of crash involvement also reveal variable results.
Our current focus is on cannabis. Cannabis is also the substance about which it is most difficult to make definitive statements on the relationship between concentration, impairment, and crash risk.
Whereas breath testing has become the standard for assessing the concentration of alcohol in drivers, blood samples are required to measure the concentration of drugs. Because the concentration of some drugs, particularly cannabis, decreases rapidly, it's essential that blood samples be drawn as close as possible to the time of the offence.
Currently, blood draws require the oversight of a licensed physician in a hospital emergency department, where collecting blood samples from suspected impaired drivers may be given low priority, resulting in substantial delays. Allowing blood samples to be taken by licensed technicians provides the opportunity for police to obtain samples in a timely manner. We support the inclusion of qualified technicians among those who will be able to draw blood for analysis.
Regarding alcohol ignition interlocks, 10 years ago, in a report for Transport Canada and the Canadian Council of Motor Transport Administrators, it was recommended that impaired driving offenders be given the opportunity to participate in an interlock program at the earliest opportunity, in particular, immediately upon conviction. The recommendation was based on evidence that convicted offenders often continued to drive while prohibited, and often under the influence of alcohol. The earliest possible entry into an interlock program would allow offenders the opportunity to drive legally with insurance while providing the public with the assurance that these individuals will be unable to drive after consuming alcohol.
To sum up, over the years we've learned a great deal about the issue of driving while impaired by alcohol. Still we continue to deal with this complex problem. The legalization of cannabis poses additional challenges. Although many of the lessons learned about dealing with drinking and driving can inform our approach to drugs and driving, we must recognize and take account of the fact that the issues involved in drugs and driving differ in many ways from those involving alcohol.
We'll need new strategies and tactics. The public, for one, needs to be informed of the dangers. The police will need new training and tools. While the measures included in Bill will assist in tackling the problem, they're not a solution but the beginning of a solution. In this context, we'll need to collect the appropriate data to monitor and evaluate the various elements of the legislation to enable evidence-informed decisions regarding the impact on the system for dealing with impaired driving, and ultimately, on road safety. These data would greatly enhance the value of the database and would allow investigations of the role of cannabis and other drugs in all deaths, provided we have the toxicology data available to us.
In closing, we would like to reinforce the statement in the legislation that recognizes that driving is a privilege, not a right, and as such, it's subject to rules, regulations, obligations, and responsibilities. The public expects a safe and effective roadway system, free from the risks imposed by drivers who use impairing substances. Bill takes the next steps to meet this expectation.
There are many parts to that question.
Way back when the 80 limit was introduced, there was very clear evidence that was very consistent across studies that when you looked at experimental studies that looked at impairment, there was very little doubt that people who were over a limit of 80 were impaired. You could demonstrate it on virtually any task you wanted to.
The other piece of that is the epidemiological literature which showed that at the point of 80, the risk of crash involvement increased exponentially. It was very clear, and that's been demonstrated repeatedly over the years. There is no question about the alcohol limit. We can play with the actual number a little bit, but there's no question about the evidence that supports it.
When it comes to other drugs, in particular, cannabis, it's a little more difficult. We can do studies where we give people cannabis and watch their performance, but the first thing we have to recognize is that the impairment due to cannabis doesn't look like the impairment due to alcohol. It can be very, very different. In particular, cannabis has a lot of cognitive impairments that are very difficult to see. In that context what we're looking at are things like decision-making, risk taking, executive functioning, memory, concentration. People who use cannabis will often say they concentrate better when they use cannabis, and maybe they think they do, but they're concentrating on one thing. Driving is a multi-modal task that requires you to concentrate on numerous different things at the same time. You need to pay attention, and they're unable to do that very well. They do not show the same kind of impairment as alcohol-impaired people do. At some point, you will see the kind of physical impairments, like the loss of balance and the inability to touch one's nose and fine motor discrimination, things like that, but we have to recognize that they're very different.
The other problem we have is that the epidemiological literature is a bit mixed when it comes to at what point cannabis increases the risk of crash involvement. In fact, we really don't have any information on that at all. What we have is a number of studies that look at the difference between non-cannabis-using drivers and cannabis-using drivers, so it's a positive or negative thing. Most of those studies, most but not all, show that there's increased risk associated with cannabis use while driving.
The situations are very different. There's a lot of work to do to help refine that scientific evidence over the next several years.