Good afternoon, everyone. It is a pleasure to welcome you to the justice and human rights committee's meeting on Bill , which we finally can refer to as an “impaired driving law”.
I am absolutely delighted to welcome our witnesses today.
We welcome Mario Harel, who is president of the Canadian Association of Chiefs of Police, and the director of the police service of the city of Gatineau.
Good afternoon, Mr. Harel.
Also, I welcome Charles Cox, the co-chair of the traffic committee, chief superintendent, highway safety division, Ontario Provincial Police; Gord Jones, superintendent, traffic committee, in Toronto; Lara Malashenko, member of the traffic committee and legal counsel for the Ottawa Police Services; and from DUID Victim Voices, Ed Wood, president.
We're going to start with the Canadian Association of Chiefs of Police.
Distinguished members of this committee, as president of the Canadian Association of Chiefs of Police, I am pleased to be given the opportunity to meet each of you today. This is my first time as president of the CACP to appear before you, and I am privileged to see so many familiar faces.
You just introduced my colleagues here at the table. I'd like to point out that Chief Superintendent Charles Cox is our chair of the CACP traffic committee, and Superintendent Gord Jones is from the Toronto Police Service. He's our immediate past chair of the same committee. Madam Malashenko is the legal counsel for the Ottawa Police Service and a member of our law amendments committee.
We are here to provide our expertise on this very important issue. The mandate of the CACP is safety and security for all Canadians through innovative police leadership. This mandate is accomplished through the activities and special projects of some 20 committees and through active liaison with various levels of government. Ensuring the safety of our citizens and our communities is central to the mission of our membership, which represents municipal, regional, provincial, and federal police services.
Bill is a very detailed and technical bill, and as a result, I will address it from a high level on our opening statement. In addition to our appearance here today, we are providing you with a more detailed brief, which outlines our position on the bill.
I would like to make some general comments to provide perspective as to the impact of this bill on policing. Our role from the beginning has been to share our expertise with the government to help mitigate the impact of such legislation on public safety. Extensive discussions within the CACP membership and various committees formed the basis of our advice. We participated in a number of government health consultations and provided a submission to the federal task force. Members of the CACP also were involved in the oral fluid drug screening device pilot project.
We produced two discussion papers entitled “CACP Recommendations of the Task Force on Cannabis Legalization and Regulation” on February 8, 2017 and “Government Introduces Legislation to Legalize Cannabis” on April 28, 2017. Both discussion papers can be found on our website.
The recommendations we are providing here today are not intended to dispute the government's intention of restricting, regulating, and legalizing cannabis use in Canada.
There is no doubt that the primary concern of policing in Canada is impaired driving. This is a significant issue today. It is our belief that it will become an even greater issue with the legalization of cannabis.
In fact, I want to be clear. We certainly commend the government for its commitment to consultation of stakeholders and the public. We commend the efforts of ministers, all parliamentarians, and public servants at Public Safety, Justice, and Health Canada who are dedicated to bringing forward the best legislation possible. All share with us a desire to do this right, knowing that the world is watching.
The government has put forward strong legislation not only focused on impairment by drugs but also addressing ongoing issues related to alcohol impairment.
Steps that have been introduced to reform the entire impaired driving scheme are seen as much needed and very positive. The CACP has called for such changes in the past, specifically in support of modernizing the driving provision of the Criminal Code, supporting mandatory alcohol screening, and eliminating common loophole defences. Tough new impairment driving penalties introduced in this legislation are strongly supported by the CACP.
We also acknowledge funding announced recently to support law enforcement for cannabis and drug-impaired driving. The government has been listening.
The natural question would be why those in policing would have a concern with the July 2018 start date. The problem exists today; what will be different with legalization? What does policing need in order to successfully implement and operationalize legalization?
The question many in policing have is what level of readiness the government, and more importantly, our communities, expect law enforcement to deliver. We can be ready at some level July 2018, but are we delivering on the public safety objectives Canadians would expect of us? We are 10 months away, so allow me to put this into perspective.
We have 65,000 police officers in Canada who require training to understand the new legislation once it is passed into law. Standards for oral fluid drug screening devices are being developed. Devices are yet to be screened against standards approved by the Attorney General of Canada and made available to law enforcement to allow for implementation and training. Provincial governments for the most part are still developing regulatory and delivery schemes, which directly impact law enforcement.
While funding has been announced, details regarding how the funding will be allocated through the provinces and into the municipal police services' hands remain unclear. We need that to meet the training and implementation objectives. We clearly require many more officers trained in standard field sobriety testing and as drug recognition experts. Quite frankly, the capacity currently is not there to deliver the amount of training required.
Although the RCMP has recently conducted pilots in Canada, DRE accreditation currently involves sending officers to the United States at significant cost and based on availability of courses. We asked the government to come forward with a commitment and details to develop Canadian-based training for our officers, including reducing or eliminating the reliance on the practical training portion that is predominantly only available in the United States. We need to increase forensic laboratory capacity to process bodily fluids and sustain our ability to enforce this legislation.
This represents just a snapshot of what confronts law enforcement as we move forward. We remain hopeful that many of these issues will be clarified and/or resolved over the coming months, laying the groundwork needed to support effective and efficient enforcement of these new laws. What really concerns policing overall is that, quite frankly, Canadians have not been getting the message when it comes to impaired driving, whether that be by alcohol or drugs, and it remains a leading criminal cause of death in Canada.
We recognize and commend the government's tougher legislation in this area. However, current perceptions and attitudes toward drug-impaired driving must change, especially among our youth. Greater education in this area should have started long ago. We need to drive home the message that alcohol and/or drugs and driving don't mix.
We are crossing new territory. Like you, we want to see this comprehensive legislation implemented successfully and recognize that doing it right is more important than doing. We all have a responsibility to mitigate the impact on public safety. That is our foremost goal from a policing perspective.
Again, our written submission flags some of the challenges, considerations, and recommendations that we hope will assist in making this bill even stronger. In all, we support the proposed measures, with some amendments. We continue to stress the importance of public education, and the policing community is eager to advance training incentives so that it can effectively support enforcement and public safety goals.
Sincere thanks are extended, Mr. Chair, to all members of this committee for allowing the Canadian Association of Chiefs of Police the opportunity to comment and make suggestions on Bill . We look forward to answering any of your questions.
Ladies and gentlemen, marijuana's THC does not impair a driver's blood; neither does alcohol, for that matter. Both of these substances impair a driver's brain, making the person unsafe to drive. We only test blood as a surrogate to try to learn what's in the brain. For alcohol, blood is an excellent surrogate. THC is not like alcohol. It's different biologically, chemically, and metabolically. For THC, blood is a terrible surrogate to learn what is in the brain.
Bill is based in part on the report from the Canadian Society of Forensic Science issued earlier this year. I largely concur with their findings, but I strongly disagree with their THC per se recommendations. I will confine my remarks to only that topic.
The two-tier structure in Bill perpetuates the myth that blood levels of THC correlate with levels of impairment, and they don't, as specified in the CSFS report itself. Drivers testing below five nanograms per millilitre of THC can be just as impaired as those testing above five nanograms. I submit that impaired drivers who kill or maim innocent victims and then test below five nanograms do not deserve protection from criminal prosecution.
Alcohol is unique among impairing drugs in that there is documented correlation between blood levels and impairment levels that simply does not exist for any other drug and has been shown to not exist at all for THC.
I point your attention to slide 1, which is before you right now. Much has been made of the fact that THC remains in the body for an extended period of time. It does not, however, remain in the blood very long at all. Since THC is fat-soluble, it is quickly removed from the blood as it is absorbed by the brain and other highly perfused fatty tissues in the body. The charts all demonstrate how rapidly THC is cleared from blood in both chronic and occasional users of marijuana.
Dr. Hartman's work, as shown in the two right-hand charts, showed that the peak level of THC declined an average of 73% within just the first 25 minutes after beginning to smoke a joint.
With a per se law, if you are above the limit, you are guilty of a per se violation, even if you can drive safely. Conversely, and this is something often overlooked, if you are below the limit, you are innocent of a per se violation even if you are seriously impaired. This latter point is the real problem with any THC per se quantitative level.
On slide 2 are frequency distribution histograms from four different forensic laboratories showing that the vast majority of cannabinoid-positive drivers arrested on suspicion of driving under the influence of drugs test below five nanograms. The largest of these studies showed that 70%, in more than 10,000 cases, tested below five nanograms. These drivers would not be criminally prosecuted under a five nanogram per se law.
There are two reasons for this phenomenon. First is the previously noted rapid depletion of THC from the blood. Second is the time required between arrest and taking a blood sample for testing.
This third chart superimposes the decline, shown earlier, of THC in blood on the elapsed time between dispatch of an officer to the scene of a crash and the time of taking a driver's blood in Colorado in 2013. What this chart shows you is that in the theoretical worst case, over one-half of cases of a driver smoking marijuana at the time of a crash, that driver would likely test below five nanograms, and that's for heavy users. For occasional users, the median level is just two nanograms. But wait. It gets worse.
In Colorado now, dollar sales of marijuana edibles exceed those of marijuana bud. Slide 4 shows THC levels found in blood on the left and in oral fluid on the right. Of users who consumed up to five times the standard 10 milligram THC dose of edibles, none of the subjects ever reached a five nanogram level in blood and very few even reached the two nanogram level. Drivers impaired by marijuana edibles would not be prosecuted under Bill .
The relationship between blood alcohol level and impairment has been well established, perhaps most convincingly by the Borkenstein relative risk curve, shown on the left. As you have more alcohol in your blood, the chance of having a crash is increasing. By the way, this is only valid if alcohol is the only impairing substance in a driver's blood.
The largest similar study for THC was done by the European Union's DRUID project, which found no difference in propensity for crash risk based upon THC levels. Of greater utility, perhaps, are studies of physical impairment assessments versus blood THC levels.
Declues et al., in the right-hand chart of slide 5, found no relationship in “walk and turn”, “one leg stand”, or “finger to nose” assessments versus blood THC levels ranging between two and 30 nanograms per millilitre in whole blood.
Dr. Logan's study last year evaluated 15 different impairment assessments, none of which could distinguish between drivers testing above and those testing below five nanograms. Dr. Logan concluded, “A quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported.”
I submit further that to do so and to adopt Bill threatens to not only destroy credibility in the law but also to ensure that the majority of innocent victims of THC-impaired driving in Canada will not see the drivers who committed crimes upon their person brought to justice, and if that's not a crime, it should be.
We know that relying upon roadside impairment assessments alone is problematic. StatsCan figures bear that out. You have now seen that quantitative per se levels for THC also won't work. A combination called tandem per se, however, might be the answer.
Tandem per se requires a sequence of events to prove a driver guilty of driving under the influence of drug per se. Number one is that the driver was arrested by an officer who had probable cause, based upon the driver's demeanour, behaviour, and observable impairment, to believe that the driver was impaired. Number two is proof that the driver had any amount of an impairing substance in the driver's blood, breath, or oral fluid.
You can do better than what you currently have with Bill . I hope you do.
I look forward to your questions.
Mr. Wood, thank you for your very troubling testimony today. You have testified that the per se levels approach to cannabis, the two nanograms per millilitre or the five, are, I think in both cases, you've suggested, simply not going to do the job, based on the experience of your research in Colorado. You pointed out that if someone has less than the per se limit, they will no doubt be found innocent, even though someone may have been affected, unless of course they were found impaired through field sobriety or some other measure, because they will not have violated the per se limits.
I'd like, therefore, to explore your recommendations with you further. You talked about tandem per se limits a moment ago. I'd like you to spend a little more time explaining how that might work in practice.
Of course, you distinguished, I think properly, between heavy users and occasional users. Some of the heavy users will have a level of cannabis in their system that will last for a long time. To your question about those who have less than the per se limits in their system, does that mean your ultimate recommendation is that they be banned permanently from driving? Is that the implication of what you're saying?
I'll talk first of all about this issue of tolerance between the heavy users and the occasional users, which is the fundamental part of your first question. We know that some studies show that people do develop tolerance to all drugs: alcohol, opioids, THC, and so forth.
The level of tolerance that can be developed with THC is on about the same order of magnitude as what can be developed with alcohol, according to Dr. Harold Kalant, a professor at the University of Toronto, so there is some tolerance for THC. What we find is that those people who are chronic daily users of cannabis develop a level of THC in their body that is there durably, and they are impaired for an extended period of time even when they stop taking cannabis. Studies have shown that these people can remain impaired over a three-week period of total abstinence, even when they show zero THC in their blood.
The issue is impairment. If you have somebody who is an addict, basically, which is what these people are, they develop a tolerance, they will be impaired and, yes, they should be banned from driving.
On your question on the issue of tandem per se, I've put forth a concept that needs to be fleshed out and based upon Canadian laws, norms, and values. It's just a bare-bones concept at this point. It is very similar to the zero tolerance laws that are already in place in many states in the United States.
The difference is that zero tolerance laws typically require reasonable grounds to collect a blood sample, and if a person has any level of these impairing substances, that person is then guilty of a violation. What I'm proposing is not reasonable grounds but rather probable cause, which is a little higher level, and also requiring that the probable cause be based upon behaviour and impairment assessments, not simply on finding some weed in somebody's glove compartment. That would not suffice as probable cause.
What I'm suggesting is a concept. It is very similar to an extension of the zero tolerance laws that are already in place and have been working for many years in many states in the U.S.
First of all, I'd like to begin by thanking all the witnesses for appearing before us today.
In particular, if I may, I'd like to acknowledge the very collaborative and collegial work that has gone on with the CACP, particularly with their traffic committee. Their expertise, their advice, and their advocacy for public safety have been very influential, and I want to commend them for their work.
I want to assure you of our commitment to continue to work with you and learn from your experience on the street. We're very grateful for your attendance here today.
I want to ask you about a couple of things. In your resolution in 2014, which was brought forward by your law amendments committee, the CACP urged the Government of Canada “to improve the safety of Canada's roadways by approving a drug screening tool”. In that resolution, you acknowledge that “advances in technology drug screening tools are readily available” and that, although Canada doesn't currently have a tool, they are widely “used effectively in other countries, including Australia”, as you've noted.
Because you urged us to do this in 2014, could I ask you why you felt a sense of urgency to make that tool available to law enforcement to keep our roadways safe?
Thank you, Chief Harel. I want to assure you that this government is listening to the advice and the sense of urgency conveyed by the CACP in that resolution.
I'd also like to take you back and canvas your experience. I know that there are people who've spent much of their professional careers in road safety and traffic enforcement. In 2008, the Government of Canada, in the second session of the 39th Parliament, passed Bill C-2, which authorized the use of drug recognition experts and the conducting of standardized field sobriety testing. That law went into effect on July 2, 2008.
About a month later, the CACP, again by resolution, noted that they had received $2 million in allocated funding for the training of DREs and standardized field sobriety testing. They also indicated in 2008 that they felt they were short by about 27,000 officers trained in standardized field sobriety testing and by about 2,600 officers trained as drug recognition experts.
My question is, in the nine years that have followed, what progress have you made with that allocated funding in ensuring that those officers were trained? I would ask you to contrast that with what we hope will be a very positive experience with the $161 million that has been allocated for the training of police officers and also to provide access to the technology you urged us to provide, to ensure that police services across Canada have the training, the technology, the authority, and the resources they need to keep our roadways safe.
Could you could tell me about your experience from 2008 to the present and perhaps talk about how we might more effectively address the priorities you've identified?
The drug recognition evaluator program is administered by the International Association of Chiefs of Police. Within that, it directs the national police service of whatever country is responsible for a DRE program. In Canada, that falls to the RCMP, of course.
The funding Mr. Blair speaks of would have gone to the RCMP in order to support and look after the training for the DRE program. I believe the RCMP is speaking before this committee next week. At that time, in 2008, the DRE program across the country was in its infancy. We were just starting it and were three or four years into it. There were some struggles in getting it started. It was very intense training. We were able to finally get things headed in the right direction.
As a result, we have trained upwards of close to 600 individual officers as DRE evaluators. We do have some issues with attrition of officers, as any organization does, but we have not sat dormant on either the DRE training or the SFST training. Individually, our organizations across the country recognized that the incidence of drug-impaired driving was increasing and that we had an ability through the SFST and the DRE to do this.
From an SFST perspective, since the announcement of the legislation in November 2015, in Toronto and elsewhere across the country we've done seven SFST courses and have another three planned. That's put 107 Toronto officers and 40 other officers from other jurisdictions on the road for the SFST.
The Ontario Police College has taken this under their wing. Between now and July 2018 they've committed to 63 SFST courses for training to be provided to the officers in the province of Ontario, with an additional 32 courses between July of 2018 and the end of 2019. That's close to 100 courses, with roughly 20 students on each course. The goal is to have approximately 2,000 additional SFST-trained officers.
Personally, my experience has been that when we send out a whole group of brand-new SFST officers, there's an uptake in the number of arrests for drug-related impaired driving. I see that on my morning reports every day, so it is working. We haven't sat idle. We are continuing with our ongoing training and, as Directeur Harel says, very aggressively, recognizing that we need this.
Having said that, we're ready. We have a capacity now. Will it meet the demand? I would hazard a guess not, but we are not starting from zero with this legislation. Depending on the day of the week, we have 500 or 600 fully trained DREs across the country. When someone makes a bad decision to get behind the wheel of a car when they've been using drugs, we have that ability to hold them accountable and to keep our roads safe.
With regard to the DRE, Mr. Blair, this year there are two more courses planned. At the moment, between April of next year through February 2019, there are six additional DRE courses that are being planned and are being coordinated by the RCMP.
Thank you, Mr. Liepert.
Are there any other short questions? If not, I have one, colleagues, if that's okay.
I have a short question for you, Mr. Wood. I want to understand your testimony a bit better.
You're aware, Mr. Wood, that Mothers Against Drunk Driving has stated that they're very disappointed with your recommendations. They say, first, that your assertion that Bill may make matters worse for drug-impaired driving victims is unfounded, and second, that your proposed alternative, the tandem per se drug-impaired driving legislation, would pose major enforcement problems and would likely be subject to serious legal challenges under the Canadian Charter of Rights and Freedoms.
You spoke about something concrete, though. You said, and I want to get your words absolutely correct, that it was “very, very rare” that there would be a prosecution if you were under the per se limit. Did I get that right? I believe you stated that in Colorado you had spoken to a number of prosecutors and they said that was very rare.
What I don't understand there is that, as Mr. Nicholson rightly said, proposed subsection 320.14(1), in paragraph (a), says this:
Everyone commits an offence who
(a) operates a conveyance while the person's ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
It's a totally different offence from the ones that have the per se limit. I'm wondering about this. Have you done any study in Canada or do you have any information about people charged in Canada under this section or under the preceding section that related to this in today's Criminal Code when they were charged? Do you have evidence that such a prosecution very rarely succeeds if they actually do a test and they fall under the limit?
My name is Michael Spratt. I'm a criminal defence lawyer. I practise here in Ottawa, and I'm here for the Criminal Lawyers' Association.
In typical defence lawyer fashion, I filed a written brief, and I'll have to ask for an extension of time so that this committee can consider it. It was sent in today, but I'm sure it will be translated and distributed to you, so I won't go into more depth about the organization. That's all in the written submission.
The Criminal Lawyers' Association supports legislation that's fair, modest, and constitutional. While we support the very important objectives of protecting society from the dangers of impaired driving, we're not able to support this bill in the current form, given some of the legal and constitutional problems with it.
Now, in my written submissions, you'll see that we fully adopt the written submissions of the Canadian Bar Association and the brief from the Barreau du Québec, which are available to the committee. There are matters in there that I'm not going to touch on orally or in my written submissions, but we fully agree with them.
I'd like to touch on three areas. The first is the new offence of operating a vehicle or conveyance and being impaired within two hours after operating it; the second area is the method of taking the samples and demanding samples, and the last area is the random breath testing.
I think a bit of history might be important. I'm sure this committee knows it better than me, but this bill, Bill , very closely resembles a private member's bill introduced last year, Bill . I would commend the committee to examine the testimony presented at the public safety committee on that bill, given the overlap.
Of course, Bill is virtually identical to a bill introduced by the former government, Bill . The reason I bring up that history is that the public safety committee found, for Bill C-226, that the legal problems presented by the bill far outweighed the potential benefits that the bill could deliver. The committee was also not convinced that the majority of the measures in Bill C-226 were appropriate. Much of the same problems exist in this bill.
Now, the first of those problems is the new offence itself. Currently, as you know, it's an offence to operate a vehicle while impaired or over the legal limit. In Canada right now, it's not an offence to drink alcohol, to drive a car, or drink alcohol after you've driven a car. It's an offence to be impaired or over the limit while you're operating the vehicle. Unfortunately, the proposed new section 320.14 dramatically changes that, and dramatically shifts how impaired law is going to play out on our roads and in our courts. That section extends the prohibition to being over the legal limit within two hours after ceasing to operate the vehicle. That is designed to combat what is not really a problem—but the bill says it is—bolus and post-driving drinking.
I can tell you that even the litigators who specialize in impaired cases bring these defences very rarely, and they succeed on an even rarer basis. It's not a problem that is plaguing our courts, but the solution to that problem as proposed by this bill is very problematic. This section is overly expansive and, as I said, it comes with little benefit.
What we're going to see here are constitutional challenges to overbreadth, but, more importantly, constitutional challenges to a reversal of the burden of proof. Under this section, if someone goes to a wine tasting or a cocktail party, drives there with no blood alcohol level, tastes some wine or drinks some scotch, and then comes under police scrutiny for whatever reason, a breath sample is demanded and ultimately that person blows over the legal limit, then it's going to be incumbent on the accused to present evidence about their state of mind, to in effect testify under the second prong of the exception that they weren't operating while impaired, and to call evidence from a toxicologist to read back their consumption to the readings.
This is an unprecedented and very dangerous aspect: reversing the burden of proof. It's even more problematic when this bill requires that the accused present scientific or toxicology evidence. Of course, that puts this defence, this exception, this reversal of the burden, out of the reach of individuals who experience poverty or are even part of the middle class. The court system is already out of the reach of those people, and this only makes the problem worse. It's ironic that the bill reverses that burden and puts that burden on the accused person, at the same time eliminating that burden completely from the crown to call that sort of expert evidence.
The second problem here is in proposed section 320.28, regarding a police officer's reasonable grounds to believe that a person has operated a vehicle or the conveyance with an impairment to any degree under proposed paragraph 320.14(1)(b). Currently, the police officer needs to have the reasonable belief that the vehicle was operated in the last three hours, and of course, the rationale for that is apparent. When you do the tests on the person and when you take the breath samples from the person, you want to do that as close to the time of driving as possible so you can relate the two. With no time requirement here, police officers with reasonable and probable grounds can demand samples from an individual hours or even days after that individual operated a vehicle. It's even more absurd when that provision is combined with proposed subsection 320.31(4), the section that alleviates any burden on the crown to call scientific evidence if the samples are taken outside of two hours to read back.
I'll pause to say that calling of this scientific evidence adds virtually no time to a trial. It can be done through documents. It's often done by calling a witness on video, and defence counsel needs the leave of a court to cross-examine. So this isn't a provision that frustrates justice or impedes the crown in any way, but this new section, which eliminates the need to call a toxicologist and mathematically add up five milligrams of alcohol for every 30 minutes, is a problem, because if an officer demands a breath sample from somebody, say a day after they drove, and that person provides a sample and blows zero because they have no alcohol in their system at all, then through the operation of proposed section 320.31 and the read-back mean that the person is deemed to have blown 240 or deemed to have an alcohol concentration of 240 even though he blew zero a day after driving. It doesn't make any sense. I've had various people look at this, because it can't be right. But that seems to be the reading of it, and that's deeply problematic, and, I would wager—and we'll see if I'm right—unconstitutional.
Now, in the last two and a half minutes, I want to deal with what I think is the most important problem of this bill, and that is the random breath testing. Let's just cut to the chase here. There's nothing random and there will be nothing random with this breath testing. What we know now, from right here in Ottawa and the 2016 Ottawa police traffic data race collection program—arising out of a human rights complaint for racial profiling—in which the police collected race data about everyone they stopped for every traffic violation, is that if you're a visible minority or part of a marginalized group or living in an overpoliced area, you are stopped disproportionately compared to the rest of the population. In simple terms, if you're black, if you're Arab, if you're a visible minority, you get pulled over more often than a white person does. That study went on to find that those people actually were not committing offences at any higher rate than anyone else was; in fact, the rate was lower.
So when you put those things together—and this is what the Ontario Human Rights Commission has done—it means that visible minorities are pulled over by the police more often for no reason. That's what is going to happen here. We've seen it in the enforcement of the current marijuana laws, which disproportionately affect minorities. We've seen it with the carding and street checking programs, which disproportionately affect minorities. This is just legislative carding in a car. That's how it's going to play out.
Now, there has been some constitutional analysis, and I'm sure you'll point me to Professor Hogg's analysis. That analysis, in our opinion, fails to take into account the reality of how this is going to play out. We're talking about people who are already disproportionately stopped, who are taken out of their car, denied right to counsel, and sometimes handcuffed. Their movements are definitely controlled; they are detained, and their car is searched for weapons by the police. They can be questioned and they are searched. If that happens to you or me once in a lifetime, it might be a slight inconvenience. The charter analysis isn't going to look at you and me; it's going to look at the young black man who is stopped five, 10, 20 times. Go and read Desmond Cole's piece in Toronto Life about carding and the effect that has on someone. That's the analysis that will take place, so it's a big problem.
Imagine you are a young black father picking up your kid from school and you're pulled over and subjected to this testing for the fifth or sixth time. That is the analysis that will take place. We know that some of these impaired laws already on the books are saved by section 1. They violate the Constitution and are saved by section 1. When we add how this is going to play out on the ground and look at the realities of how it's going to play out, I wouldn't be as confident as Professor Hogg, as respected as he is, to say that it is going to pass a section 1 analysis.
I'd be pleased to answer any of your questions. Of course, there are more expansive comments in my written brief.
My colleague Ms. Lee and I would like to thank the committee for providing us with the opportunity to appear before you today.
Ms. Lee and I are both criminal defence lawyers. We practise primarily in British Columbia and also deal primarily in impaired driving law.
The amendments embodied in Bill are both unconstitutional and unnecessary. They are contrary to the fundamental charter rights and freedoms that are afforded to citizens. The most significantly offending amendments are the sections that deal with mandatory alcohol screening, the prohibition on disclosure and on arguing post-driving consumption, and the increases in punishment.
To begin, limitation on disclosure is extremely problematic. Impaired driving is a highly scientific area of the law. It operates on the presumption that instruments and procedures are accurate; however, that is not always the case.
An accused person has the right to know the entirety of the case against them, and that includes whether or not instruments that were used in the course of the investigation were faulty. They require access to maintenance records in order to determine that. The court has already ruled that these documents are necessary and should be provided to an accused person. This amendment seeks to eliminate this.
The rationale for doing so appears to be in line with attempts to combat the perception of delay in the criminal justice system. The irony here is that this is more likely to contribute to delay. Defence counsels like me will be required to make time-consuming applications in order to access these documents. Crown counsel will have to speak to those, and court time will be allotted to do so.
Instead of limiting disclosure, I would suggest that we adopt measures similar to those seen in some U.S. states, such as Washington, and publish historical Breathalyzer records online. That will allow for free and easy access for the public and will also help to curb delay.
Similarly, the increases in penalties that are contemplated by this bill are likely to exacerbate delays. Increasing punishment while simultaneously introducing a plethora of new, aggravating, and quite frankly unnecessary factors will have the effect, in my view, of deterring accused persons who may otherwise do so from entering early guilty pleas. That will be out of fear of elevated punishment in a more rigid sentencing environment.
Our current penalties are sufficient in order to deter and denounce impaired driving. Moreover, sentencing is best left in the hands of a presiding judge. Open sentences strike an appropriate and meaningful balance between the interests of the community and the individual circumstances of an offender.
Perhaps the most troubling aspects of this bill, however, are the provisions that provide for arbitrary and mandatory breath testing. The justice minister has described this scheme as “minimally intrusive” and has said that providing a breath sample is the same as providing a driver's licence or other documents to police.
With respect, this is not the same thing. The production of a breath sample is physically invasive, it is conscriptive evidence, and it's compelled from a person by law for the purposes of self-incrimination. It is a significant infringement on individual liberties.
We have to remember international comparative examples. Australia, for instance, does have a mandatory breath-testing scheme and does not have a charter equivalent. In that country, there is no bill of rights like the one we have here in Canada to protect citizens.
Moreover, there are legitimate concerns about how this law will be applied, and they cannot be overlooked. There is a real risk that implicit racism will cause visual racial minorities to be disproportionately subject to detention by police for the purposes of these so-called random breath tests.
Quite simply, police officers do not need these measures in order to combat impaired driving. They are already armed with the tools necessary to identify impaired drivers and to remove them from the road in a prompt manner. They require only reasonable suspicion, which is an exceedingly low standard, and of course that's just a suspicion of alcohol in the body, not even that a driver is impaired. As long as they have that suspicion, they are able to compel a roadside breath sample.
It seems that a majority of Canadians also agree that random breath-testing is not necessary. A recent poll I reviewed, conducted by The Globe and Mail and Nanos Research, found that only 44% of Canadians support these provisions.
Constitutional compliance is about striking appropriate balance between individual rights and the interests of society. There is absolutely no doubt that if this legislation is passed as is, it will be vigorously challenged. It is going to cost taxpayers millions of dollars.
The role of our government is to pass good, responsible, socially responsible, and constitutionally sound law.
In my view this bill, as it stands today, is not measuring up.
I will now pass the floor to my colleague, Ms. Lee.
I want to thank the other presenters for their comments, and I certainly echo what they've said about random breath testing. As a Métis I am very concerned about how this is going to affect people from the aboriginal community. We see in B.C. already basically an offence of driving while native, and that's only going to get worse.
We also don't need this law. Statistics Canada has been tracking impaired driving rates since the 1980s, and there has been a consistent decline over the years. The laws we have are working. There is a correction in this issue. It is taking place. Provinces also have adopted administrative measures that are working, or so they say. I take issue with that, but they do say they're working.
Dealing with the administrative laws in British Columbia, which is one of the areas our office handles frequently, I see first-hand every day the way that giving police unfettered power causes abuses of that power. In British Columbia there is no practical ability to challenge the demand for the breath sample under our administrative scheme, so we have de facto mandatory random breath testing in British Columbia already, and all it has led to is a reduction in policing skills and a reduction in respect for charter rights from police that invades other areas of criminal law.
If we pass this law in its current iteration and allow police the ability to conduct random breath tests and to engage with drivers for the purposes of random testing, all we are going to be doing is saying that the charter doesn't matter if we worry about the type of offence. That can't be what we are supposed to have in a legal system in a free and democratic society. Living in a free and democratic society means we have to strike a balance between individual liberties and protection of the public. Sometimes that balance is going to lead to cases where people are put at risk, but that's a risk we take to protect the rights and fundamental freedoms we have as Canadians, and we need to keep that in place.
It's also illogical. There's a significantly concerning aspect about this law to me, and that is that there is a reasonable suspicion for saliva testing for the drug-impaired scheme, but there is no reasonable suspicion standard for alcohol-impaired driving. There's no justification for having one standard for drugs and a different standard for alcohol. Do you have more rights because you use drugs than if you drink? It doesn't make sense.
Not only does this law fail to strike a balance, but from my perspective it will almost inevitably lead to convictions. This law is designed to convict people charged with impaired driving, rather than to let them have the right to a fair trial. My colleague has spoken about the limits on disclosure that will impede an individual's ability to get the evidence necessary to prove their innocence. Mr. Spratt has spoken about the limits this law creates on the ability to challenge the breath test results in the absurdities of the law. This law is designed to convict, and that's not what our legal system is supposed to do. It is supposed to create a process by which a person can have a fair trial.
Because we have an introduction of random breath testing, we're going to see the end of things that the Supreme Court of Canada has tried to put to rest earlier this year. The recent case of Alex, talking about how issues related to the presumptions aren't related to the validity of a breath demand, is just going to go back to the court. We're never going to put other issues to rest, because we're going to have less to challenge as defence counsel and less for accused persons to challenge.
I'm particularly concerned about the elimination of a defence of post-driving consumption. I can tell you that I probably run more impaired driving trials in British Columbia than any other lawyer right now, and I have never in all my time practising run a bolus drinking defence, a post-driving consumption defence. Mr. Spratt is quite right that it does not come up. It is not a frequent thing. We also have laws in place that address this problem when it's used to obstruct an officer's ability to investigate. We have seen police officers in British Columbia convicted of obstruction and sentenced to jail time for engaging in post-driving consumption to skew breath test results.
We don't need this law. We don't need this change. We have a system in place, and it creates a “guilty until proven innocent” mechanism. Again, dealing with the roadside prohibition scheme in British Columbia, I have seen the way that “guilty until proven innocent” works. You have triers of fact who end up distrustful of the evidence of the so-called “guilty party”. It's difficult to have a fair hearing. I can only predict that this pervasive attitude will infect the court system as a whole, and it has the danger of creating an unconscious bias against accused drivers.
These proposed changes will not work. Our justice system depends upon safeguards against wrongful conviction, respect for charter values, and an overall desire to create laws that make sense to address real problems and not imagined ones.
Thank you to the witnesses.
It's good to see you back, Mr. Spratt. I know you've become a thoroughly frequent witness before our committee.
On the issue of random breath testing, let me just say at the outset that I'm quite skeptical about random breath testing.
To play devil's advocate, Ms. Leamon, you mentioned that police already have all the tools they need to combat impaired drivers. You correctly note that the standard of reasonable suspicion is a low one. It's merely the suspicion that someone has alcohol in their system, and not that they're at .08, and not that they're impaired.
On the other hand, we have heard from multiple witnesses, including from the law enforcement community, who have cited statistics indicating that somewhere in the neighbourhood of 50% of the time that someone is impaired and is stopped at a routine check, or in the course of a traffic stop to check insurance and so on, they pass through.
How would you respond to that assertion, when law enforcement officers say they need this because 50% of the time someone who is impaired is going through and nothing further is done?
Certainly that could be a concern. However, in my practice, I don't see it.
Police officers have the training, and if they don't have the training and they feel they can't detect impaired drivers with the resources, the tools, and the skills they already have, then we have a problem.
Police officers are able to stop a vehicle for almost any reason in this country, and they're able to engage with the motorist. They can make observations of that motorist about how they look and how they're acting. They can even go so far as to have the motorist blow in their face, or blow into their hands and put breath into their face. That has been ruled by the B.C. Court of Appeal to be a valid measure to be deployed by police officers.
Once they detect an odour of liquor on the breath, no matter what that order is—faint, moderate, strong, stale, or fresh—that, according to the Alberta courts, is enough to make that ASD demand at the roadside. Couple this with the fact that police officers can also ask questions of drivers. They can ask them whether they have been drinking and when their last drink was.
More often than not, drivers are forthcoming. I certainly see that when it comes to my clients. They're more than willing to start talking to a police officer and explain to them, “Oh, but I only had a drink two hours ago.” Well, guess what. Now the officer has a reasonable suspicion and they are able to issue that ASD demand.
Thank you, all of you. Who knew that constitutional law could be such exciting testimony and very lucid as well?
I want to jump in where my colleague left off. I was there on Monday when Professor Hogg testified. He did a report, a legal opinion, several years ago, but it was about checkpoints, where everybody is treated the same. I said to him that here we have random breath tests, where we can arbitrarily, at whim, choose people whom we want to go after. I asked him, if the evidence were like the evidence in Toronto where 8.3% of the population is black yet 25% of the cards police wrote in a three-year period were against blacks, or if the evidence in the context of Ottawa's data race collection program were as you say it was, if that would change his section 1 analysis. His answer was yes, it might. He also concluded that in his judgment, to be fair, that section 8, which is on unreasonable search and seizure, didn't need to go to section 1. He didn't think there would be a problem; he thought the courts would be sympathetic. But he did say the section 9 and 10(b) analysis would go to section 1. If this evidence, the kind that you've described in Ottawa and I've indicated in Toronto were present, he suggested the courts might conclude there would be a constitutional problem.
I needed to put that on the table. That's what he said, in my memory, anyway.
I want to ask you how you would feel and what your legal advice would be vis-à-vis everybody getting stopped at a checkpoint as opposed to randomized breath tests. Would that be satisfactory to you, or would you treat it exactly the same way?
Mr. Chair, honourable members, we welcome the opportunity to address this panel and to comment on the amendments to the Criminal Code, particularly as they relate to drug-impaired driving. Drug Free Kids Canada is a non-profit organization devoted to educating parents about drugs, raising public awareness issues surrounding drug use, and facilitating open conversations between parent and teen, in order to ensure that all young people will be able to live their lives free of substance abuse.
Since we are not legal or policy experts, nor do we have experience in law enforcement, we have chosen to focus our comments on the critical need to change how society in general and young people in particular perceive the risks involved with high driving, that is, cannabis-impaired driving. Although drug-impaired driving can involve more drugs than cannabis, our comments today mainly relate to Bill , the proposed legalization of cannabis.
DFK’s position on drug-impaired driving is simple. We need to make the laws and ensure that our enforcement is as strict as possible within the Charter of Rights and Freedoms. A strong deterrent to driving while impaired by drugs must be in place, particularly when we’re about to legalize this psychotropic substance.
We have learned many lessons over the years related to alcohol, lessons that we need to consider with cannabis.
The first lesson was that wide distribution and intense marketing and promotion of alcohol created a normalization of this substance. We need to strictly control the sale of cannabis and definitely forbid any form of marketing or promotion, especially to minors.
Second, no matter what laws are in place, if we don’t educate and sensitize the public to the risks inherent with drug-impaired driving, we will continue to see carnage on our roads. Education at an early age needs to begin as soon as possible, before we legalize. People who are currently driving while impaired tend to be less impacted by public education messages. What influences their behaviour is when others, particularly their children, intervene.
There’s a great example of that from 50 years ago, when seat belts were first introduced. Early public safety messages on buckling up for safety were having poor results. Only when the focus was put on keeping kids safe by buckling them up did we see a change in societal behaviour. A positive change happened as a consequence of the child-centred focus of the new messaging. It’s when the kids asked the parents, “Why aren’t you buckling up, Dad or Mom?” that society began to see a shift in attitude and, ultimately, driving behaviour.
Last, the great and consistent work that has been done over the past 30 years by organizations like Mothers Against Drunk Driving and Students Against Drinking and Driving Alberta have contributed significantly to making drinking and driving socially unacceptable. We need to do the same with drugs now, especially cannabis. Impaired is impaired. The message has to be clear most importantly to our youth.
Our national tracking studies have consistently shown that teens don’t see driving under the influence of pot as being as risky as alcohol. This is particularly worrisome since these are young, inexperienced drivers who believe that smoking a joint and grabbing the car keys is okay.
Studies show that 16-year-olds to 34-year-olds represent only 32% of the Canadian population, but 61% of the cannabis attributable fatalities. This group also disproportionately represents 59% of the cannabis attributable injuries, and 68% of the people involved in cannabis attributable property damage-only collisions. This means that we have serious work to do with today’s young drivers and the future generation of drivers.
Another aspect parents need to be concerned about is that kids are getting into the car with a driver who is high. In a recent Ontario study, almost a quarter, 23%, of grade 12 students, admitted to having been a passenger driven by someone who had consumed drugs.
We are here to tell you that public education messaging works. In the past six years of doing national multimedia campaigns, we have seen that more parents are talking to their kids more often about drugs. We are seeing changes not only in attitudes but also in the behaviour of teens.
Drug Free Kids Canada has been creating impaired driving prevention education campaigns on our own for the past four years, but much more work will be required.
I would like to share with you our latest high driving campaign. It’s an innovative campaign using new technology to reach parents and kids. The Call That Comes After has been internationally recognized in Cannes and New York, as well as in Canada. More importantly, it has been viewed or downloaded over 40,000 times by parents and kids from coast to coast. The Call That Comes After was designed to help parents open up the conversation with their kids by using the most common communication tool between parents and kids, the mobile phone.
This campaign ran from January to June and will be repeated again next year for 17 weeks. If we don’t take preventative steps right now to educate the public, by July of next year we could be facing an increase in drug impairment on our roads, creating a significant hazard for the public. We must remind the government of its pledge to allocate a portion of the revenues towards prevention and education. To ensure that our youth and the public in general are protected, we need to provide effective education and prevention awareness strategies well before legislation takes effect.
Consistent messaging has worked for safety belts, anti-smoking, and drinking and driving. We can and must do the same for driving while high. This is the only way to make sure that young people and their parents understand that cannabis does not belong behind the wheel under any circumstance. It’s a substance that, like alcohol, causes serious impairment to driving capabilities even though it will soon become legal. Drug-impaired driving is but one aspect to consider when looking at legalizing cannabis, but it is a very critical one.
I would like to thank this committee for allowing us to present our point of view.
Good evening, honourable members of the committee. My name is Arthur Lee. I am pleased to be here today to speak on behalf of the Students Against Drinking and Driving of Alberta.
SADD Alberta, as we're more commonly known, began almost 30 years ago, with a goal to eliminate impaired driving among the youth of our province. With a focus primarily on high schools, SADD has worked with student-led chapters at hundreds of schools across the province since its inception. Through educational resources, workshops, presentations, and conferences, we strive for prevention and to achieve our goal of uniting and motivating the students of the province to stand up against our country's number one criminal cause of death: impaired driving.
Over the years we've learned that changing perceptions, attitudes, and decision-making about impaired driving can be slow, difficult, and at times very discouraging. Our message has not always been well received and is sometimes, to our dismay, met with ambivalence or even resistance.
Bill proposes several alcohol-impaired driving laws that we believe are long overdue and will make a significant difference in reducing the number of alcohol-related injuries and fatalities on our provincial roadways. There are too many changes and proposals in this bill for me to go into detail about; however, there are a few that I'd like to speak to specifically.
First and foremost is mandatory roadside screening. While we understand that there may or may not be legal challenges facing this proposal, we want to echo the pleas of other witnesses and MPs who have gone into great detail about the effectiveness and evidence of positive results seen by other jurisdictions that have already implemented this measure.
We are are aware that mandatory roadside screening is a very contentious issue and has been widely debated for many years. However, in discussing this idea with licence-holding students from Alberta, we have come to realize that this really is a non-issue for many of today's new drivers. To specifically quote a group of students who we asked about this topic, they said that if you have been pulled over by a police officer, you should follow their instructions, and if you have nothing to hide, why would you refuse a breath sample?
Now, many a lawyer would likely have a rebuttal argument for these students, but we think they have simply highlighted why mandatory roadside screening should be socially acceptable in today's society, Alberta's society, and Canada's society. They do not see how providing a breath sample should be any different from producing a valid licence and registration upon request by law enforcement. It's time to make a change for the better. W e sincerely hope that we see our police officers utilizing mandatory roadside screening in the very near future.
Second, Bill , generally speaking, proposes stricter fines and penalties for individuals convicted of alcohol-impaired driving. Again, we've told our students about these changes, and the responses were unanimous. While some commented that the current fines were already quite substantial from a high school student's perspective, all agreed that increased fines and penalties will aid our mission to discourage all drivers from risking their safety and the safety of others by driving impaired.
These changes are also nothing new. They have been proposed time and time again, yet we are always left with the status quo. It's time to take a strong stand against impaired driving and make the penalties more representative of the crimes that are being committed. I recently spoke with a police officer who shared a brief story with me. He had pulled over a vehicle with two youths in it and asked them if they had been drinking. They emphatically said no, as they knew how bad drinking and driving was. He then asked them if they had been smoking any marijuana, to which one of them replied, “What's wrong with driving high?”
While I was encouraged by their attitude toward drinking and driving, I was shocked at their response to driving under the influence of drugs. This brings me to the second part of Bill as it relates to drug-impaired driving. With Bill C-46 coinciding with the legalization of marijuana, it is crucial that we recognize the fact that our country is home to a very high number of underage cannabis users. With such high usage rates comes a nonchalant attitude about operating a motor vehicle after doing drugs.
Student feedback we received specifically about drug-impaired driving indicated that students believe the fines and penalties for drug-impaired driving should be similar to those for alcohol-impaired driving. However, they admitted that the general sentiment among their peer groups was that driving under the influence of marijuana was—quote—“better” than being impaired by alcohol.
In just nine short months, Canadians are going to be hit by a tidal wave of new laws, new changes, and most certainly new tragedies as they relate to drugs and drug-impaired driving. As a group that has spent many years working to educate students about the dangers and risks of alcohol-impaired driving, we feel like weary mountain climbers who have almost reached the summit only to peer through the clouds and see another whole range of mountains needing to be scaled just off in the distance.
While we support the penalties and fines proposed in Bill for drug impairment, we believe they are only a beginning. We anticipate that roadside saliva and drug testing will face contentious legal battles for years to come. We urge the government to invest in technology and research so as to provide enforcement officers with the best tools, training, and resources they need to combat drug-impaired driving and make our roads safer.
Other jurisdictions that have legalized the use of marijuana have seen spikes in drug-impaired driving offences, and we feel that these policies should be given careful consideration in order to provide safeguards for all Canadians. SADD's focus in the future will almost certainly have major drug-impaired driving education and prevention components. The initial education effort surrounding the new laws will be one of the biggest challenges we have ever faced. There is already confusion, misinformation, and a lack of knowledge among students, teachers, and parents about cannabis and drug-impaired driving. How the different levels of government communicate these new laws and changes to Canadians will be crucial to our campaign of keeping our roads safe. We need to draw as many parallels between drug-impaired and alcohol-impaired driving as we can. Otherwise, we will be starting at square one when it comes to changing perceptions and attitudes towards drug-impaired driving.
In closing, I would like to thank the honourable members of this committee and have them ask themselves: is this enough? Is this enough time to properly educate people, train officers, and implement new drug-impaired driving laws? Are these laws tough enough to effectively change driving behaviours? What else can be done? Where is the mandatory education component? Where are the mandatory fines and penalties for passengers in a vehicle when a driver blows over the legal limit? What other safeguards can we put in place? Again, is Bill enough?
The mothers, fathers, grandmothers, and grandfathers of this country are begging you to help protect their children and make our roads a safer place for all. For decades families, friends, and communities have been devastated by the destruction that impaired driving has caused. A new generation of drivers are pulling onto our roadways, and we have an opportunity and a responsibility to get it right this time.
Sure. I have only a couple of points.
Going back to your previous point about “Just say no” or what the dangers are, in the past we kind of walked the same grey line. Do we talk about underage drinking or do we really focus on what the dangers of drinking and driving are? That's where we've chosen to focus our attention.
We found that students will simply tune out. They will not listen to it. As you said, if you start talking about “Don't drink” or “Don't do cannabis”, you really have to change the conversation to what the risks are and what the dangers are in that context.
As for funding and timing, we work on a shoestring budget as well with whatever resources we have. If there is more money available, we'll definitely be looking to use some of it and provide resources to our teachers and advisers, but the main thing is really to get buy-in at the schools as much as possible.
We work with many different groups, whether it's principals, counsellors, teachers, advisers, even community members. We look for champions who want to really help out on these subjects, and we try to find those people who are willing to dedicate their time and we provide them with the resources they need in the schools and the communities.