JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, February 3, 1999

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[English]

The Chairman (Mr. John Maloney (Erie—Lincoln, Lib.)): Again, I wish to apologize to our witnesses for that brief delay while we took care of some housecleaning matters. I'd like to welcome, from the Royal Canadian Mounted Police, Brian T. Hodgson and Wayne Jeffery; and from the Canadian Society for Forensic Science, Doug Lucas and Louise Deheut.

Do you have a presentation you'd like to make?

Mr. Brian T. Hodgson (Chief Scientist, Alcohol, Forensic Laboratory Services Directorate, Central Forensic Laboratory, Royal Canadian Mounted Police): Yes, Mr. Chairman. My two colleagues, Madam Deheut and Mr. Lucas, and I represent the Canadian Society for Forensic Science Alcohol Test Committee.

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This committee is a national body made up of scientific personnel, like ourselves, who advise the Minister of Justice on scientific and technical matters related to the impaired driving sections of the Criminal Code. In particular, we make recommendations as to what instruments and devices may be approved under the Criminal Code of Canada for police use in Canada to combat drinking and driving. In addition to that, we make other types of recommendations.

In order to go into a bit more background on the committee and the history of the impaired driving sections, I'm going to turn it over to my colleague, Doug, who can give us some background on that area.

Mr. Doug Lucas (Member, Alcohol Test Committee, Canadian Society for Forensic Science): Thank you, Brian.

Mr. Chairman, members, my colleagues asked me to talk to you a little bit about the history of breath testing, the blood alcohol legislation, and so on. Since I've been involved in this field since 1957, I hesitate to call it history because I lived through much of it; I just prefer to call it background. Our information was that you would like to have some background on the technology, legislation, numbers, and so on, so I'll give you that. Then my colleagues will talk to you more about the technology, and particularly the advances in the technology.

We think it's important for you to have that sort of information because the technology that's available today is excellent and allows us to do many things that at one time we couldn't do. But I think it's also important that you recognize that the technology also limits what you can do, because there are limits to that technology and it's important that you understand them.

Our committee was established in 1967 because at that time very much the same sort of thing was happening that is happening now. This committee, or its predecessor, was considering proposals to change legislation that subsequently resulted in what became known as the breathalyzer laws. Because we were involved in breath testing and responsible for administering and managing breath test programs, we felt it was important for that committee to have the benefit of advice on what the technology was, what it would do and what it couldn't do.

All of the members, even today, are actively involved in breath-testing programs, primarily in Canada, but we also have one member from the United States, just so we can keep informed as to what's happening in that jurisdiction.

One of our really important functions is to develop standards for the equipment or hardware that's going to be used, but perhaps even more important, because the hardware is only part of the story, is to also develop guidelines for training the people who are going to use that equipment and the procedures they will use to ensure what they do represents good laboratory practice. There's quality control associated with results, so the courts can then have confidence in the results that are presented to them.

We evaluate equipment, as Brian mentioned, and you might be interested to know that we don't recommend to the minister approval of all of the equipment that comes to us. For example, of the evidential instruments—the breathalyzer and the successors of that—there are now 12 approved instruments, but there were also 10 that we evaluated that have not been approved because they did not meet the standards. There are five screening devices that haven't been approved.

One of the things you may be interested in that will come before you is the concept of breath containers, to provide a container to the accused person. We have so far evaluated 12 possible containers, and none of them has ever been approved. The requirements for those are quite strict, as well as for blood containers.

There's nothing new about breath testing for alcohol. It's now pretty well established in this country. On the basis for breath testing, it's been known that there was alcohol in the breath since the late 1800s. The scientific basis for doing breath tests to determine alcohol in blood was pretty well established in 1930. The first actual instrument to measure alcohol in breath, called the drunkometer, which was an unfortunate name, was actually invented and first put into use in 1938. It's nothing really new. In fact, the drunkometer was the first breath test instrument to be used in Canada, and it was used in Vancouver starting in about 1953.

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The breathalyzer is the instrument that is perhaps best known in this country and, I should say, around the world. It did really revolutionize the idea of breath testing, making it a broad program that could be used around the world. It was invented in 1954, and it's still in use today in this country. We are still using 1950s technology as we approach the millennium.

The breathalyzer was first introduced into Canada in 1956, in Ontario, and its use then expanded quite rapidly across the country. By 1969, the time when the original legislation was introduced, it was well established. There were widespread breath test programs in the country. The tests were voluntary, and the results of the tests could only be used for corroboratory purposes.

The next things that came out were electronic devices, the screening devices or roadside screeners. They really came out of the U.S. space program. The technology was developed and used starting in about the 1970s. It was first used in Canada in about 1976.

Use of what we call the more modern technology, which is based on infrared absorption—my colleagues will tell you more about that—started in Canada in about 1994. Use of this technology is expanding across the country now.

One thing that is important to keep in mind as people are telling you about modern technology and its capabilities is that when you do a breath test, no matter what kind of instrument you use, you are using a surrogate for blood. The legislation talks about the concentration of alcohol in blood at 80 milligrams per 100 millilitres. Well, you're not testing blood; you're testing something else. What that means is that there has to be a calculation made, and there are some limitations in what you can do with that calculation. The instrument makes it for you, but it's important to always keep in mind that you are making a calculation. That calculation is based on an assumption. That assumption may or may not be correct all the time.

The current instruments are based on the assumption that 2,100 millilitres of breath will contain the same amount of alcohol as one millilitre of blood. That's a pretty good assumption. I guess it's been around since the 1940s; it's pretty well established. But more recent work has indicated that it would probably be better if you used a ratio of 2,300:1. That's something that becomes an issue in the courts sometimes. It's an issue in the technology, and it's an issue that cannot be avoided when you talk about the technology.

I'll say a little bit about the development of legislation, particularly from the point of view of how science and technology has impacted on the legislation, as it will impact on your considerations if you choose to make changes. We've had an offence for driving while intoxicated in the Criminal Code since 1921. The interesting thing is that there was no real scientific basis for that. No one really knew that driving while intoxicated was worse than driving while sober. Intuitively, it made sense, however, and it was called “driving while intoxicated” because that's all you had to go by—what you could see. There were no such things as blood alcohol determinations. They weren't available.

The minimum penalty at that time was seven days in jail. In 1925, Parliament made a slight change to that. It recognized very quickly that there was a loophole, so the care and control provision was added. Also, for some reason or other, driving while under the influence of a narcotic was also added at the same time in 1925. This was added even though there was no way whatsoever of doing analyses for drugs in samples in 1925, although it was just about 1925 that analysis of blood for alcohol content did start to become available in Quebec.

In 1951, the science had changed. Research had shown that “driving while impaired” was a good choice of words, that this really represented what it was we were trying to talk about, so the legislation for driving while impaired was introduced. One of the reasons for that change was that the driving-while-intoxicated bar was set too high. By the time you could visually see intoxication, the person had a very high blood alcohol concentration.

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The second problem with it was that the penalty was perceived as being too severe. I was around during the time of driving while intoxicated. The stories we would hear from the police officers were that they didn't want to charge this guy because he was going to go to jail, or that if they did charge him the courts probably wouldn't convict him because he was going to go to jail. That was the perception that existed at that time. Whether it's the same today, I really can't say.

In 1969, of course, the legislation changed because breath testing had made it feasible to have wide-scale programs to use breath. The concept of the demand for a breath sample and the concept of a minimum level of blood alcohol concentration were introduced. The concept of a qualified technician and so on was then introduced in 1976.

One of the problems recognized with the 1969 legislation was that it didn't really change the criteria for the police. Prior to 1969, they had to have evidence of impairment before they could ask for a blood sample. The 1969 legislation didn't change that. Police still had to have evidence of impairment before they could demand a sample. The only real change was that it went from a request to a demand. The interesting thing was the refusal rate really didn't change. Prior to 1969, the refusal rate was about 5%, and it was about 5% after 1969. Before they had the right to make a demand, the police were pretty good at convincing people that it was a good thing for them to provide a breath sample.

In 1985, the final major change was the demand for a blood sample.

Finally, I thought I'd just briefly mention where the 80 milligrams come from. Is that some sort of a magic number? The answer is no, it's not a magic number; it's an arbitrary number. However, it's not capricious. There is some basis for it. It's based partly on studies that were done in the fifties. In 1955, at the University of London, in England, Professor Drew did some studies with a driving simulator. His studies showed that all of the subjects he tested were impaired when they got to 80 milligrams per 100 millilitres. That same year, the RCMP here in Ottawa did a series of tests with actual drivers on a closed course. They found similar results. About 70% of their subjects were impaired in the 50- to 80-milligram range.

But by far the most significant study that resulted in the 80-milligram number was done in 1964 by Professor Borkenstein. It's known as the Grand Rapids study, and I'm sure you'll hear other people talk to you about it. In that study, in effect for an entire year in one city, every single accident was studied, and breath samples were taken to see what the role of alcohol was. But that was only part of the story. The really significant part of that study was that they also studied people at the same locations at the same time, but who didn't have accidents. Unless they showed a difference in the role of alcohol in those, they wouldn't have really proved anything. What the study showed was that the probability of accident involvement increased very rapidly once above 80 milligrams per 100 millilitres.

In 1965, the British Medical Association recommended to Parliament in the U.K. that people should not drive with greater than 80 milligrams per 100 millilitres. In 1967, the British Road Safety Act was passed and it used the figure 80. I think those were the compelling reasons that Parliament in Canada used that same number.

Finally, to advise you, it hasn't changed a lot. That 80 is still a pretty good number. As late as 1997, the Committee on Alcohol and Other Drugs of the U.S. National Safety Council, which had long supported an offence for over 80, reiterated that long-standing position. The committee said:

Every person, regardless of that person's previous experience with alcoholic beverage consumption, is impaired in driving performance if that person's alcohol concentration is 0.08 or more.

And 0.08 there means 80.

That's my very quick attempt to bring you up to speed on some of the background. My colleagues will now talk about the technology.

Mr. Brian Hodgson: Mr. Chairman, each of us intends to make a presentation. Did you want us to carry on?

The Chairman: Yes, carry on.

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Mr. Brian Hodgson: Just following along from what Doug was saying about the criteria police have to meet in order to demand a breathalyzer test from subjects, that's clear, reasonable, and probable grounds to believe a person is impaired or over the current legal limit of 80 milligram percent.

It was shortly after the legislation of 1969 that something was done in the Criminal Code to assist police officers in detecting and determining whether or not the person was actually impaired, and that was the introduction of roadside screening devices. Later on that concept was expanded, and we now call them approved screening devices, simply because they can be used for any offence where there's an operation of railways, motor vehicles, aircraft, and so on.

For approved screening devices under the Criminal Code, the criterion police have to use to make a demand for a subject to blow is lower than that required for a breathalyzer test. The police only require a suspicion that the driver has alcohol in the blood. That suspicion can arise merely from the odour of alcohol emanating from the driver or the car, or perhaps an admission by the driver of recent drinking or consumption of an alcoholic beverage, and that's probably as low a criterion that's required.

The screening device is only intended to determine whether or not the person has a certain zone or grade of alcohol in the system. It's not designed to determine what the actual evidential level is. That is left for the breathalyzer instruments.

Our committee, though, does have evaluation standards for approved screening devices. As Doug has mentioned, not every device submitted to the committee meets the standards. We have failed devices simply because they don't meet the criteria we demand of roadside screening for a device that will give the police officer assurance to carry on to the next step and make the breathalyzer demand.

The evaluation standards determine the reliability. They also determine the stability of the device in terms of whether or not they can be used by the police officer under environmental conditions you might meet on the roadside, within certain limitations. They are designed to help the officer. The criterion for evaluation is not only to see if it meets our standards, but also to verify manufacturers' claims. Manufacturers, out of their own self-interest, tend to make claims about their equipment that don't always meet the cold scrutiny we require. On that basis we recommend or don't recommend devices for that purpose.

In the use of the devices at the roadside, there are certain criteria police officers have to adhere to, and that's done through the training of the officers. However, the training is not to the same level as that required for the breathalyzer technician. Screening devices are meant to be used by any police officer who may be engaged in traffic duties, so, generally speaking, they are very simple, straightforward devices to use.

The detections technology used in all of the screening devices approved in Canada is known as the fuel cell technology, and that's a term you may have heard used in other connections. As Doug was saying, fuel cells arose out of the NASA space program, but they are particularly good for the detection of alcohol, which is a volatile substance. They are very sensitive to that, and they can be very reliable.

But there are limitations in terms of how the device can be used. One of them is that in order to ensure with reasonable reliability that the alcohol level detected in the subject is actually coming from the subject, it requires the subject to blow directly into the device. For that reason, a demand for that screening device test was created. A refusal to blow into a screening device is an offence under the Criminal Code, but if a person fails on the test, that is, the indication is that the person is over the Criminal Code legal limit, that in itself is not an offence. That failure on the screening device simply gives the police officer reasonable and probable grounds to carry on to the next step, which is the demand for a breathalyzer test.

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I brought with me today two of the representative devices that are used here in Canada. This one is made by the Dräger company, called the Alcotest 7410. I have another one on the table called the Alco-Sensor IV. These are two of seven approved screening devices.

Some of you may be familiar with the older devices that use a light system. There's no difference in the reliability or accuracy of these devices in terms of whether you use a light, a digital display, or a letter display. It's simply a change in the technology.

On devices such as this one here, the Alcotest 7410, instead of having a red light saying failed, it has the letter F for fail. That's really the only difference.

The devices can quickly provide an answer, and they give an answer in three zones. One is the fail level, which indicates that the person is above the Criminal Code legal limit.

That beep you hear indicates that the device is ready to take a sample from someone who's ready to blow, if anybody wants to blow, and I do have some mouthpieces here if anybody wants to try these devices out.

An hon. member: To see what we had for lunch?

Some hon. members: Oh, oh!

Mr. Brian Hodgson: The other is the so-called warn region, which is an intermediate level. It's used in particular by the provinces under their motor vehicle acts, where the criterion for suspending somebody's licence is simply that they have a blood alcohol concentration usually of 0.05, or 50 milligram percent. That's the case here in Ontario. A warn reading on a screening device gives the officer grounds for suspending the licence under the Motor Vehicle Act. The third is the so-called pass region, which could be zero or it could be anything up to 0.049, or 49 milligram percent.

Now, in the pass region, on the newer devices you can get an actual readout. The reason is that some of the provinces have now introduced the so-called zero-tolerance laws into their Motor Vehicle Acts. But this level of zero varies from one province to another. It depends on how you want to define zero. Here in Ontario they define it as low as 0.003, or 3 milligram percent. In other places they may go up to 0.02 before they decide that the person has violated that particular provision.

Here in Ontario those provincial Motor Vehicle Act laws are aimed at novice drivers. In other provinces they say any driver under the age of 21 or under the age of 19, a new driver. That's done for a specific reason, which we can get into later.

With regard to any breath-testing provision, one of the very important criteria for blowing into any breath-testing device or instrument is that the test must be conducted properly. Perhaps the most crucial aspect of it is that the breath sample must be free and clear, uncontaminated from, say, alcohol from a recent drink or from breath fresheners or any other substance the person may put in their mouth that has no bearing on the actual concentration of alcohol coming from the blood. For that reason there has to be a waiting period observed if the officer has reason to believe there's alcohol in the mouth. You may have heard of this 15- or 20-minute waiting period. That is in order to give ample time for the mouth to be clear of alcohol.

In roadside screening use this has become a problematic situation in the sense that the test must be taken forthwith, which means right away. But the Supreme Court of Canada has decreed in a case called Bernshaw that if an officer has reason to believe the sample may be contaminated from recent drinking or mouth alcohol, then he or she can wait, provided the instructor tells the driver that there will be a waiting period. We feel it is absolutely essential, and we will back the officer up 100% on that type of criteria.

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The other aspect I want to mention is that there is increasing talk of the use of another type of device, called the “passive sensor”, of which some of you may have heard.

The passive sensor is somewhat similar to screening devices. They use the same type of fuel cell technology, but the idea is that instead of the person having to blow, the device is simply pointed in the general direction of the driver in the hope that there will be alcohol picked up from the driver. That can be of some assistance in the investigation of a suspected impaired driver.

The difficulty limitation—and I think Doug alluded to limitation of the technology—is that the officer has to be assured that the alcohol being picked up is actually coming from the driver and not, say, from a passenger in the motor vehicle. In order to assure that, you have to get closer to the driver with the passive sensor. In the published literature, they say the ideal situation is if you can get within two to four inches of the mouth of the driver. My comment to that would be, if you have to get that close, then why not go with the screening device, because if you want to introduce another technology into the process, it tends to complicate matters in that regard.

I think that's about all I would like to say at this point. In the scenario I've outlined here, if this had been in a roadside situation, if the police officer had demanded a roadside screening test based on suspicion of alcohol in the body and had obtained a failed reading on the screening device and on that basis had reasonable and probable grounds to make a breathalyzer or an approved instrument demand, then the next step would be to go to the evidential use and the evidential breath testing.

For that, I'm going to turn it over to my colleague, Madame Deheut.

[Translation]

Ms. Louise Deheut (Member, Alcohol Test Committee, Canadian Society of Forensic Science): My employer, the Laboratoire de sciences judiciaires et de médecine légale of Québec's ministère de la Sécurité publique has authorized me to attend this meeting solely on the condition that I clearly state at the outset that I represent neither the Laboratory nor the Quebec Government. I am simply here as a member of the Alcohol Test Committee of the Canadian Society of Forensic Sciences.

That said, we will now talk about approved alcohol tests. The instruments used are designed to measure an individual's precise blood alcohol content using his breath alcohol concentration. The technology in current use falls into three major groups. The first is chemical analysis. The Breathalyser, designed in the mid 1950s, falls into this category. It is based on a chemical reaction and uses a yellow solution. If the breath of the person being breathalysed contains alcohol, the solution becomes paler. Obviously, the more alcohol there is in the individual's breath, the greater the change in the colour. The Breathalyser therefore measures a decrease in colour intensity.

The most recent technology is infrared technology, used in this silver-tone Intoxilyzer 5,000 C, which we have brought along as an example, or in the BAC Datamaster C. These instruments are based on a completely different principle. Though they still measure alcohol levels and breath, they measure it by quantifying infrared energy absorption. The higher the alcohol intake, the weaker the infrared signal becomes.

The third instrument category is based on electrochemical fuel cells. These instruments are still based on a reaction, but in this case it is an electric reaction. They measure the production of electricity, or electrons, which here again is proportional to the individual's breath alcohol level. The higher the individual's blood alcohol level, the more electrons are produced. That is what this category of instrument measures.

Regardless of the technology used, all instruments must be assessed by two different laboratories in Canada and comply with standards established by the Alcohol Test Committee before they can be recommended to the Attorney General of Canada.

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I don't want to go into all the standards in detail, but I will mention that one of them is used to ensure that an instrument takes accurate, linear measurements. In other words, we want to ensure that the instrument is accurate, that it generates reproducible results, and that those results are reproducible at a range of levels.

The levels assessed are 50, 100, 150, 250 and 350 milligrams per 100 mL. Using this technology, we can accurately detect levels as low as 50 milligrams per 100 mL and as high as 350 milligrams per 100 mL. Obviously, these are in vitro tests. In other words, we use a devise containing alcohol at a specific level and use that level to measure the instrument's accuracy. We do not of course make people drink until their blood alcohol reaches 350 milligrams per 100 mL. Some of them might expire on us during the test. But the technology makes it possible for us to accurately measure levels as low as 50 milligrams per 100 mL.

Another aspect we check during the assessment is the instruments' specificity. Though we do not mention this very often, we should point out that the final instrument reading should in fact represent the level of alcohol in the individual's blood, not the level of some other volatile substance that may be present as well. The endogenous volatile substance most frequently encountered is acetone, which is found in the alveolar air of people with diabetes. During the test, the instrument must be able to ignore the acetone. All instruments used in Canada have been checked, and none of them will give a reading if acetone is detected in the individual's breath.

It is also important to take into account the precision of those instruments. We've already spoken about their limitations. We've told you that we use a breath sample and that gives us a result indicating the level of alcohol in the blood. Is the reading of that instrument very precise or can there be a margin of error? The machines used in Canada have a margin of error of plus or minus 10 milligrams per 100. Thus, if I obtain a first result of 100 milligrams, I don't know where the truth lies; it's somewhere between 110 and 90 milligrams per 100. If an individual has an alcohol level which is at 110 milligrams per 100, the second test that we would carry out could give us a reading as high as 120 milligrams per 100, since there is still a margin of error of plus 10 milligrams per 100. There is therefore a gap of 20 milligrams per 100 between the first result at 100 and the second at 120. If the reading for an individual is 90 milligrams per 100, we can have a second reading as low as 80 milligrams per 100, which can still be attributed to the 10 milligrams per 100 margin of error of the machine. If we have a first test reading of 100 milligrams per 100 and a second of 80 milligrams per 100, we still have a window of 20 milligrams per 100, which complies with the limits set for the precision of the instrument. Therefore we feel that when we have a gap of 20 milligrams per 100 between two tests, we have two equivalent or two equal tests.

When we use a simulator to ensure that the instrument is working correctly, thanks to new technology, we can be exact to plus or minus 5 milligrams per 100. But when we're talking about the breath of an individual, we cannot get any more precise than plus or minus 10 milligrams per 100. Furthermore, the results of an analysis cannot be better than the quality of the air sample that we get. It is important to have qualified technicians, who are properly trained and who are capable of getting air from the lungs, air from the bottom of the lungs, because it is that air which interacts with the blood. Given that there is a great deal of variability in the quality of the samples provided, even if we have two very good samples, the precision of the results cannot be greater than plus or minus 10 milligrams per 100.

Another important element, that Brian spoke about earlier, is residual alcohol in the mouth. You were told that one had to wait at least 20 minutes before making an individual blow into an approved machine. This is the case because, for one reason or another, if the individual has alcohol in his mouth, the instruments cannot tell the difference between that alcohol and the alcohol which comes from the bottom of the lungs, for example from the pulmonary system, which is why we have to wait for a period of 20 minutes before carrying out a first test. Once we have waited for 20 minutes, we are sure that any residual alcohol in the mouth has been eliminated.

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Whereas breathalysers can only be used by a qualified technician, in other words a police officer or a peace officer who has received specialized training in breath analysis, the approved detection devices can be used by a police officer with minimal training. We also require that a police officer who uses an approved breathalyser do a control test before each breath analysis in order to ensure that the instrument is working correctly. That is another important element that distinguishes this machine from other similar types of machines. We also have to do tests to ensure that there is no alcohol in the room and that the instrument indicator reads zero when the level is truly zero, which we are not obliged to do in the case of other approved detection devices.

I might also point out that the alcohol tests in Canada use a relationship of 2,100:1. In other words, the instruments are designed to multiply the alcohol content in a person's breath by 2,100, whereas recent studies point out that the real factor is more like 2,300:1. When analyzing a person's breath to find out how much is in their blood, we are generally underestimating by about 9%. Our instruments are accurate, but they tend to underestimate how much alcohol the person really has in their blood.

That ends my brief explanation of approved alcohol tests. Brian has brought a test used by the RCMP. Before you go back home, we could do some analyses and find out whether you should be driving or not.

[English]

The Chairman: Mr. Jeffery, are you going to make a presentation?

Mr. Wayne Jeffery (Vancouver Forensic Laboratory; Chair, Drugs and Driving Committee, Canadian Society for Forensic Science, Royal Canadian Mounted Police): Yes. My name is Wayne Jeffery. I'm in charge of the Drugs and Driving Committee and, like the Alcohol Test Committee, we report to the Department of Justice.

What we have are five scientific articles, which I presented to the committee. I don't know whether you have them all in front of you. I believe two have been translated already.

It's a well-known scientific fact that substances other than alcohol cause impairment. The first two papers submitted to you were “A Report on the Incidence of Drugs and Driving in Canada” and “The Involvement of Drugs in Driving in Canada: An Update to 1994”, outlining the type of drugs found in fatal motor vehicle accidents and impaired driving by drug cases where blood was obtained.

The two classes of drugs that far outnumber the rest are cannabis and the benzodiazepines. The Drugs and Driving Committee of the Canadian Society for Forensic Science supports the recommendation of the Uniform Law Conference of Canada that section 256 of the Criminal Code be amended to allow the issuance of a telewarrant for the purpose of detecting drugs where there are reasonable grounds to believe that a person committed an offence under section 253 while under the influence of such a substance.

However, we believe it does not go far enough to prevent drug-impaired driving. The current law has a charge for drug-impaired driving but precludes police officers from gathering the required evidence to support a charge that has a likelihood of conviction. The police officer must show impairment and the presence of the drugs. This can only be accomplished by, one, a roadside sobriety test and, two, a body fluid demand to show the presence of the drug in the body. The present law does not allow a police officer to demand sobriety testing or to demand a body fluid.

For impaired driving by drugs there is no per se law as there is with alcohol. So to prove drug impairment the police officer requires the sobriety testing and the body fluid demand, either blood, urine, or saliva. In the near future saliva may become a good alternative to blood.

The extent of drug-impaired driving in Canada has been well underestimated because of the handicap that the present law puts on the police officer.

The third article submitted, “Alcohol, Drugs, and Impairment in Fatal Traffic Accidents in British Colombia,” tries to answer this question. This article shows that 9% of all fatal motor vehicle accidents in British Columbia were caused by drugs alone. Another 10% were caused by the combined effect of small amounts of drugs combined with small amounts of alcohol.

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While that is what is happening in fatal motor vehicle accidents, can we make this assumption for impaired drivers? We made this correlation for alcohol. The scientific literature published throughout the world has shown that between 10% and 40% of impaired drivers with a blood alcohol concentration of less than 100 milligram percent are impaired by drugs.

The United States has answered the question of the drug-impaired driver with the solution of the drug recognition expert. This process is outlined in the fourth article, “The Drug Impaired Driver: The Drug Recognition Expert Response”. This is a process of field sobriety testing, biological testing, and fluid testing. At present, 41 states use this process to fight the drug-impaired driver.

That process has been implemented in the province of B.C. due to the support of the Insurance Corporation of British Columbia. It has had limited success, due to the lack of a demand for field sobriety testing and of body fluid testing. It has great success in removing the drivers from the road through the use of the 24-hour roadside suspension.

The starting point to prosecute the drug-impaired driver is not a blood drug level. Independent evidence of behaviour is gathered by standardized field sobriety testing and/or a drug recognition expert and a laboratory finding to support that a class of drugs may cause that behaviour that leads to the impaired driving.

It is the Drugs and Driving Committee recommendation that to combat drug-impaired driving, the following changes be implemented to section 253—and these are outlined on page 4 of the last submitted article.

A body fluid demand, blood, saliva or urine for drug analysis, should be made only when all of the following conditions have been met. A peace officer believes on reasonable and probable grounds that a person is committing or at any time within the preceding two hours has committed an offence under paragraph 253(a); that obvious and at times specific observations have been made of impaired physical or psycho-motor functions of driving behaviour such that there appears to be a marked departure from the norm with respect to the ability to operate or have care or control of the vehicle; and that either roadside screening or evidentiary breath testing for alcohol has shown that the person's blood alcohol concentration is not in excess of the prescribed limit.

In order to satisfy the first two conditions, it is felt that peace officers should undergo specific training similar to the drug recognition expert program that has been initiated in 41 states in the United States and that the law be amended to allow for roadside field sobriety testing. This legislation will not capture drivers who use medication correctly for therapeutic purposes. Ethical use of drugs prescribed by a doctor and given out and monitored by a pharmacist will not lead to impairment. This legislation will catch abuse of pharmaceuticals and illicit drugs, and therefore it should not be restricted to illicit drugs alone.

The Chairman: Thank you. At this time we'd like to have you questioned by some members of our committee. I think perhaps we'll go for seven-minute rounds.

Mr. Harris, you're up.

Mr. Dick Harris (Prince George—Bulkley Valley, Ref.): I want to thank you for your excellent presentations.

One of the things I find most frustrating is when I read in the paper or I hear reports from police officers that they've done every single thing they are supposed to do, and yet a defence lawyer will get an impaired driver or a person charged with impaired driving off on some sort of technicality, be it a technicality of the equipment, such as when it was last tested, or whether the police officer followed all of the procedures; did he not say one particular word that he had to say? It seems to me if we can send a man to the moon, and probes beyond the moon, we should be able to have a 99.9% foolproof method of testing—roadside testing, initially—for impaired driving, whether that be impaired by drugs or alcohol.

How far away are we from absolute perfection—I know we can never achieve it—in testing devices?

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Mr. Brian Hodgson: I don't think you'll ever reach absolute perfection, Mr. Harris, because we're dealing with a scientific process here, and even the best instruments in the world always have some sort of error factor associated with them, as Louise has mentioned.

We feel we've built as many quality control standards into our present system as we can within reasonable practical limits without going to the extent of simply asking Parliament to make it an absolute offence. Once you're over the legal limit, that's it; there's no recourse at all.

I'm very familiar with the arguments that come up in court, and it's difficult to reconcile what happens in those situations. As you're probably aware, one of the most popular defences against drinking and driving is that the person believes there's no way they could be over the legal limit. It's the classic two-beer defence, as we refer to it.

That's a safeguard that's been built into the section of the Criminal Code known as evidence to the contrary, and it's up to our Canadian courts to decide whether or not they are going to find that credible evidence, as opposed to deciding that the person's actually over the legal limit, which the crown, the prosecution, always has to meet.

You mentioned roadside testing. There are instruments now approved under the Criminal Code, as Louise mentioned, that could be used at the roadside, but they are not any closer to perfection than the instruments used back at the police station. They have to be subject to the same operating criteria and quality control standards as any other instrument.

I don't know whether or not you can say you'll ever reach the point where they'll be no argument whatsoever. There is always a strict procedure that the police must follow, and if the courts deem that procedure has not been followed, there's not too much we can say as scientists in that regard, other than to ask whether it's a fatal error or simply a deviation from the procedure that should not lead to a fatal flaw.

Mr. Doug Lucas: If we expect perfection, we're bound to be disappointed. We can expect to aspire to perfection, and I think everyone does.

The procedures are there and the technology is such that where the police officers follow what they're supposed to do—and I think in the vast majority of instances they do—the result is valid, and that's as close to perfection as you're going to be. That's as far as we can go.

What the court will do with that result is another issue. That is where some of the frustrations are that you refer to and that we experience, as the people who go to court every day. However, the other side of the coin is if we are to have reasonable doubt and due process, there are bound to be some that just don't meet that, or at least don't in the eyes of the court. I think we'll always have that, but we can expect a valid result when the process is followed as it should be.

Mr. Wayne Jeffery: I have just one comment on that same issue with regard to drugs and alcohol. A lot of people put impairment on a number, and with roadside field sobriety testing, which is very valuable to determine impairment, in a lot of the courts at present the accused does not have to do that. One of the steps that is very valid for alcohol, and not only drugs, is roadside testing or field sobriety testing. You can use it in a limited way under the present law. If it were mandated, it would help in many different areas of the field sobriety testing.

Mr. Dick Harris: I have just one other question. Maybe this should be to Mr. Jeffery. It's on the requirement that a peace officer believes on reasonable and probable grounds that a person has committed an offence and is justified in requesting a breathalyser test. I've checked with a lot of crown attorneys who have told me that in many cases reasonable and probable grounds have been adequately shown and the person who has been tested has blown way over the legal limit, yet because an officer has maybe been in doubt about something totally unrelated to whether the person was impaired or not, the defence has argued that if the officer couldn't remember whether there were three, four, five or six people in the vehicle, how on earth could he have reasonable grounds to request a breathalyzer test, in spite of the initial screening test that showed he did? It gets so frustrating when the testing equipment is there, everything works out, and yet some other little technicality throws the case into question.

• 1645

Mr. Brian Hodgson: It goes to the weight the court wishes to place on the relevance of how many people were in the vehicle—other than the driver—in regard to the person who is charged with the offence. I think the police officer should be concentrating on the driver, because that's the person committing the offence, and making observations about that driver, particularly in regard to indicia of impairment in the ability to operate a motor vehicle.

My own personal opinion is that it's irrelevant how many other people there are in the car. I would question the court, “Well, how can you place weight on that if you're going to make it part of your determination in the evidence?”

Mr. Dick Harris: Okay.

The Chairman: Thank you, Mr. Harris.

Mr. Brien.

[Translation]

Mr. Pierre Brien (Témiscamingue, BQ): My first question will follow up on Mr. Harris's.

When people dispute their cases before the courts, do they tend to win very often? How often? Do you have any figures?

Ms. Louise Deheut: We do not have any actual figures, but since my colleagues and I often attend court, I can tell you that when a person contests it is a matter of credibility. If the judge believes the accused and the Crown prosecutor is unable to cast doubt upon the credibility of the accused, the judge has no choice. He is practically compelled to acquit the person, unless there is proof of the person's not being in possession of all his or her faculties, but such proof is difficult to obtain.

With average levels, meaning 80, 100 or 110, the symptoms are often not very apparent. Thus, the person cannot be found guilty of impaired driving. If the judge decides to believe a person who claims to have had only two beers, which cannot result in 120, that's it: the person will be acquitted.

Many people who contest are acquitted, but I do not have any specific statistics. As you say, it is very frustrating. We of course are working on the side of the Crown. On the one hand, we see a police officer and a qualified technician who has used approved equipment, who has conducted the control tests and who has obtained two results within 20 milligrams. He has no reason to falsify the results, and everything has been done as it should. On the other hand, we see the person who, strangely enough, remembers exactly how much he drank and when he drank it. He was clearly under the influence of alcohol, but he remembers enough to recall all these events and tells them to the judge. The vast majority of these cases result in acquittals.

Mr. Pierre Brien: My second question has to do with a driver who is involved in an accident, who leaves the scene and who is located sometime later. How much time can elapse after an accident before it is no longer reasonable to subject a person to an alcohol test? Is it relevant or possible to conduct an alcohol test, or do they have to forget about it?

[English]

Mr. Doug Lucas: On the issue of how long is reasonable, from the point of view of the metabolism of alcohol, which is one issue, the current legislation provides for two hours, and again it's an arbitrary but not capricious figure. We know there will be a change in the blood alcohol in a two-hour period, but the belief was that within two hours we could be reasonably accurate. The longer you go beyond two hours, because of variations in the rate of metabolism, the more likely you are to be incorrect.

• 1650

So two hours is not unreasonable. You could go longer than that, but then the issue arises of how much weight will be attached to the estimate.

With regard to the other part of that question, though, since you mentioned that this was a fail-to-remain accident, the person has lost contact with the police. He automatically has the defence that he did all his drinking after he left the scene, and that's something technology cannot help with at all.

The Chairman: Merci.

Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): Mr. Chairman, I'm going to trade spots with my colleague, Mr. MacKay, who's so very busy and just got an important phone call, but I'm guaranteed he only has a short question, if that's okay with you.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): I thank my colleague for that. As a defence counsel, it's very kind of him to defer to a crown.

Mr. Peter Mancini: Always.

Mr. Peter MacKay: I think from the tone of the questions it is very clear that there's a lot of frustration, and I think impaired driving legislation and the advent of the charter has been a cash cow for lawyers for a long time.

The science aspect comes down, as I've seen it in a few cases, to duelling scientists and who can create the best expert and the whole interpretation of reasonable doubt. That's a long preamble.

Mr. Peter Mancini: I'm not sure I should have deferred.

Mr. Peter MacKay: My question is this. DNA is being used more and more in crime prevention and in solving crime. Do you ever see a day where DNA might enter into the equation of impaired driving? Can they detect drugs or alcohol by virtue of DNA? It's something I've always wondered.

Mr. Brian Hodgson: Well, speaking in the case of alcohol, no. There's a separate issue there altogether. DNA goes to the genetic make-up of the individual. Alcohol is a foreign substance in the body that a person consumes. It's in the body as a foreign substance and is easily detected and measured as such. I really don't see any connection between DNA and alcohol measurement at all.

For drugs, I'll pass to Wayne.

Mr. Wayne Jeffery: Yes, it's the same thing with drugs. There's no connection at all.

Mr. Peter MacKay: Okay. That's my question. Thank you.

The Chairman: Mr. Mancini.

Mr. Peter Mancini: First, Mr. Jeffery, if I understand your testimony correctly, it's very difficult to determine impaired driving that is caused because of the ingestion of drugs.

Mr. Wayne Jeffery: Absolutely.

Mr. Peter Mancini: But I just want to be clear in my own mind. My experience is that in most cases the police charge someone under the impaired driving section of the code, but they also charge them under the care and control section of the code.

I think you would be correct when you say that the statistics are skewed in that more people are impaired than would show up in the statistics under the impaired driving section. But would you agree with me that the statistics are also skewed because those people would be convicted in most cases under the care and control section of the Criminal Code? I don't know if that would skew them, but would you agree that they would fall within that category? Am I right?

Mr. Wayne Jeffery: No.

Mr. Peter Mancini: Okay.

Mr. Wayne Jeffery: You're not right in that area for the main reason that the police have a very hard time saying this person is impaired by drugs. Then if you charge them under the care and control section, it still has to be proved that the care and control was caused by drugs, and if there is no mechanism to prove what is causing the care and control, then you're not going to be charged with that.

You can still have some impairment in the care and control, but those statistics aren't really skewed to go over to the care and control. Very few drug-impaired driving cases actually go over to the care and control because there are very few drug-impaired driving people charged because of the way the present legislation is written.

Mr. Peter Mancini: Okay, that's interesting. I'd be interested to see those stats. Maybe it's just the way they do it in Nova Scotia, but in my experience—certainly as defence you always had to look at the impaired, but you could not let the care and control slip through because it was almost inevitable that conviction would follow on that one.

Mr. Wayne Jeffery: No, that's not done. That's not my experience.

Mr. Peter Mancini: Okay. Just to go back to Mr. Harris's question when he talked about the technicalities and how strict the courts are in the adherence, would you agree with me that part of the reason we have that strict adherence by the courts is because we're dealing with technology, and in fact sensitive technology, so that if the tubing is not clean, if there's a problem in the administration of the test, that would be why the court requires that strict adherence by the officer to the methodology?

Mr. Brian Hodgson: Yes, because the court is faced with someone being charged with a criminal offence here. In Canada it's a charge under the Criminal Code. So based on the technology, if the person is charged with being over the legal limit, for instance, the court is faced with evidence of numbers and convicting that person of the criminal offence. We fully support the concept that there has to be a very stringent quality control and strict standards in regard to the technology.

• 1655

The Chairman: Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Thank you very much.

[English]

First of all, Mr. Lucas, you referred to the drunkometer as being an unfortunate term. I'm sure you don't like the meter part of it, right?

I am neither a lawyer nor a scientist, so please excuse my very general vocabulary.

[Translation]

You mentioned that at the police station, you wait for about 20 minutes to make sure that the breath test coincides with the air in the person's lungs, not with the air in his mouth.

How does the 20-minute wait affect the suspect's blood alcohol level? In other words, in 20 minutes, can there be enough of a decline in the blood alcohol level to distort the final result?

Ms. Louise Deheut: Alcohol is usually eliminated at an average rate of 15 milligrams per 100 per hour. So waiting 20 minutes is not much. It makes a difference of no more than four or five milligrams. It's not significant. The problem caused by an erroneous reading is much more serious than this kind of loss. This happens only when people are in a descending phase at the time of the test, because they can also be in a stable phase, which is called a plateau phase.

Mr. Jacques Saada: A plateau phase.

I have three questions, all of them brief.

You referred to a margin of error of plus or minus 10 percent. What are the risks that this margin of 10 percent can be enough to eliminate most of the cases in this category before the courts? In other words, what does this 10 percent margin coincide with in concrete terms? Can we get an idea of the number of people who have been arrested and who, because of this 10 percent margin, get out of it, even though when they were actually arrested, there was a good chance that they were really inebriated?

Ms. Louise Deheut: In general, I can say that it is not really 10 percent, but 10 milligrams per 100. If you apply 10 percent to a rate of 150, you get 15 milligrams.

Mr. Jacques Saada: That is 10 milligrams per 100.

Ms. Louise Deheut: Yes, plus or minus 10 milligrams.

Now... I've lost my train of thought.

[English]

Mr. Brian Hodgson: Why do we have that error? What's the risk?

[Translation]

Ms. Louise Deheut: Oh yes. I do not have these statistics here, but I believe that most people who are brought to the station for a breathalyser test already have blood alcohol content well above 90 milligrams per 100.

Mr. Jacques Saada: Thus the risk of a discrepancy between the two is quite small.

Ms. Louise Deheut: Yes. Not very often do we find rates below 90 milligrams per 100.

Mr. Jacques Saada: I have one last question that is very general. Mr. Harris and Mr. Brien referred to the frustration one feels with people who should not be driving, who have been caught and who get away with it.

Can something specific be done to amend the current law, to make the job easier, or have we reached the limit of what can be done in the context of the Charter of Rights?

[English]

Mr. Brian Hodgson: No.

Did you want to bring up that work?

Mr. Doug Lucas: There are a couple of issues, but there is one I think might help. As I mentioned at the beginning, the legislation talks about blood, but we measure breath. We have that calculation we have to make, and there is that variation between whether the ratio is 2,100:1 or 2,300:1. There's a 9% difference.

What has happened in some jurisdictions, particularly in the United Kingdom and in several states in the United States, is instead of codifying the offence as a number in blood, they codify it in breath. So it is an offence in the United Kingdom to have greater than 35 micrograms of alcohol per 100 millilitres of breath. That eliminates one of the variables.

• 1700

It's a valid thing to do, because most of the research that has been done on impairment and the effects of alcohol have been done on breath, and the studies convert from breath to blood and then back again in the courts. So I think there is some merit to that.

The downside to that, of course, is it would represent an enormous public information problem, because you're changing the number now. People have difficulty enough understanding what 80 means, and now we're talking about 35, or some other number.

In the U.K., that's one of the things they did. Their law states that it's an offence to drive with greater than 80 milligrams of alcohol in 100 millilitres of blood, or 35 micrograms of alcohol in 100 millilitres of breath, the two being equivalent. They use the 2,300:1 ratio to convert. So that's one possibility I think you might want to consider.

If I pull things out of the sky as things that might otherwise be considered, another one—and I think there are considerable difficulties with this—is rather than talk about the concentration in blood or the concentration in breath, you talk about the reading on an approved instrument. That way you get around the problems of the 10 milligrams per hundred, the problem with the reading of the breath, and so on. That could be valid. It is done in some jurisdictions. But I recognize that it would be an enormous precedent to establish an offence under the Criminal Code based upon what you get from a black box. So it's something that would take some very serious consideration.

Those are two things that might be done.

Mr. Wayne Jeffery: Just to add one comment to that, in the area of the drug-impaired driver, I've recommended two things in the report. One is field sobriety testing to allow the peace officer to do standardized field sobriety testing to get the symptomology that is there for drugs. If that occurs, then have the mandated blood, saliva, or urine sample to prove the presence of the drug. So those would be the two important things for the drug-impaired driver.

[Translation]

Mr. Jacques Saada: Do I still have any time?

The Chairman: That's it.

Mr. Jacques Saada: Thank you.

[English]

The Chairman: Round two is a three-minute round, which is roughly time for a question and an answer.

Mr. Harris.

Mr. Dick Harris: I have just one question, please.

I saw an advertisement on television the other night for a new type of glucose testing if you're a diabetic. It didn't penetrate the skin. It was like a laser test, I think. I just wondered if there's anything on the horizon for possibly that type of testing that could be done in the field even, just putting an instrument to a person's skin and pressing the button, without penetrating. Is there anything coming down the tube on that?

Mr. Brian Hodgson: There possibly is in that regard, but it's very, very advanced research. It's still very much in the research stage. What you're alluding to is a system—and I've heard mention of this at conferences—of measuring the alcohol in the blood by simply taking the finger of the individual and measuring the blood alcohol concentration. That's really a radical concept in our technology, in our field, and it's very much in the research stage. I know of one particular company in the U.S. that is looking at this very closely. What will come of it, of course, at this point... When you're doing pure research, of course, you never know where it's going to go and how long it's going to take.

I think our best bet right now as far as alcohol is concerned is still breath testing. With regard to the member's comment about where can we go, if you take Mr. Jeffery's proposal to introduce the drug for having a body fluid sample, and separating breath alcohol out from that completely would assist in that regard, you would have a double effect there.

Mr. Doug Lucas: Could I add something to that answer, Mr. Chairman?

As Brian says, there might be. However, I don't think it would be a magic bullet. I think it's important to keep in mind the limitations of doing things at the roadside that are going to be used as evidence in a serious criminal case. The standards for that evidence are high, so you would have to be concerned about the environment. What's the effect of the environment on that device? It works very nicely in the laboratory, but will it work at 10 degrees below zero or at 30 degrees above zero? What sorts of power requirements does it have? Does it have to be plugged in, or can you use it with a battery, and what are the battery requirements? Can you determine the blank, because the environment... Is there anything in the air that would give an effect? Can you calibrate it at the scene, or check the calibration?

• 1705

There are all of these quality control things that I think—and I believe my colleagues agree—are important because of the importance of this evidence in a serious criminal case. So those have to be considered, no matter what device you want to use, if you're going to use it in an environment other than a confined environment.

Mr. Dick Harris: So I guess, in short, you're saying that giving more credibility to the instruments we have for testing now would be a major step ahead—to give more credibility to what's in existence as pure evidence in the case is what we need.

Mr. Doug Lucas: In the reliability of that result, yes. Now, having said that, I confess that I come from a background of science, and I happen to believe that if I do things properly with this technology the result I get is probably better than the result I'm going to get from an estimate based upon the consumption of alcohol by someone who's been consuming that alcohol. But I would also concede that there are other people coming from a different background who would not necessarily make that weight allowance.

The Chairman: Thank you, Mr. Harris.

Madam Bakopanos, do you have a question?

Ms. Eleni Bakopanos (Ahuntsic, Lib.): Thank you. Actually, it was along those lines.

We talk about air, but we also talk about different metabolisms, women's versus men's metabolism. I was reading a study recently on the way a woman's metabolism absorbs alcohol. She may have less alcohol in her system but go over the limit a lot faster. That was scientifically proven. I don't remember who the scientist was who actually did that.

I feel personally that we do in fact have a process. As you said, it's a serious crime; it is not a minor crime. I think we have to emphasize that: it is a criminal conviction. We have to put as many checks and balances in the system as possible. We don't deal under controlled situations: it's outdoors, it's in a police station, or whatever.

My colleague asked the question of what types of recommendations you would put forward in terms of making changes right now that would allow the police to have the best evidence possible in front of the judge. In the end, we have to let the due process of law take place. We have to allow for the judiciary to have a certain amount of discretion also in terms of the credibility of the witness.

That's basically a comment I wanted to make based on the fact that there is human error on both sides where there are humans involved who deal with alcohol consumption in different ways.

Mr. Brian Hodgson: Yes, that's very true. And you're right, there is a difference between men and women. It has to do with physiology. It's not a sexist thing; it's purely physiology.

Ms. Eleni Bakopanos: So you can never have the perfect test, in fact. I agree with your comments, that there is no perfect test.

Mr. Brian Hodgson: Well, I think every test is subject to scrutiny.

Ms. Eleni Bakopanos: No pink and blue boxes. That's not what I'm alluding to, no. We can't go down that road.

Mr. Brian Hodgson: I don't think any scientific test should be immune from scrutiny. It should always be subject to examination as to whether the proper procedure was followed.

Ms. Eleni Bakopanos: Okay. Thank you.

The Chairman: Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman.

I was hard put to find a question to ask, being familiar with the whole system once, though fortunately not charged. I decided to stop tempting fate and quit the nasty stuff.

Do you have any idea of the fallout between the roadside test and the breathalyzer at another point where the roadside test would indicate to the officer that this fellow should be checked with a breathalyzer and he is found to be not seriously impaired?

• 1710

Mr. Brian Hodgson: Yes, in fact, that is a crucial factor, because a roadside test is conducted at the roadside when the driver is stopped, and the test taken at that point is a reflection of the blood alcohol concentration as measured by breath at that point in time.

If there's any kind of a time delay, which could be, say, as long as an hour, before the breathalyzer test is administered, you now have an elimination of alcohol—as Louise has mentioned, one hour's worth of elimination. If that driver were simply just over the borderline level at that point at the roadside, by the time he's tested with the breathalyzer he may be down below the legal limit. He may be down to 80 milligrams, for instance, which is not over 80 milligrams.

That's one of the factors that we impress upon the police, that you can have that difference, a potential difference, occurring. But keep in mind, it's only a factor for borderline cases. If the driver is anywhere above that borderline level, then even one hour's worth may still result in an over-the-legal-limit reading on the breathalyzer or the approved instrument.

Mr. Ivan Grose: I did have another question, but it was stolen by a previous speaker, about the research on the roadside test to make it—

The Chairman: Mr. Grose, I think there may be a further comment on your first question.

Mr. Ivan Grose: Oh, I'm sorry.

Mr. Doug Lucas: One other factor, when you talk about the fallout between the fail at the roadside and the breathalyzer test, is that the roadside screening device is not always set to fail at the same level, depending on what jurisdiction you're in. In some jurisdictions, I think they do set it at 80 milligrams, and in others, at 100 milligrams. I heard recently that in one jurisdiction they set it at an even higher level than that. So the fallout between them will depend on what it was set to fail. That's really a policy decision of the particular police agency.

Mr. Ivan Grose: Thank you. That answers my other question.

Thank you very much, Mr. Chairman.

The Chairman: Mr. DeVillers:

Mr. Paul DeVillers (Simcoe North, Lib.): I have one quick question.

One of the suggestions Mr. Lucas made was possibly going from measuring blood to measuring breath instead. You talked about a public education program. Doesn't the general public look at it by number of drinks? If the limit isn't changing, don't they still think in terms of whether they can have one or two or three drinks? Would that really be that big a problem?

Mr. Doug Lucas: You're quite right. I think the public does think in terms of number of drinks—which is a very risky way to think, by the way, because it depends very much on how quickly you take it and how big they are. Louise mentioned to us last week that she found in her local dépanneur a bottle of beer that was three litres. That was one bottle of beer.

The public information I was thinking of was probably more for the people involved, particularly the courts, the judges, the police, and the attorneys involved, rather than the public, because I think you're quite right, the public does think in numbers of drinks.

Mr. Paul DeVillers: They're misinformed, but they still have a system of thinking...

Mr. Brian Hodgson: If I could add to that, the level we're thinking of in terms of breath is equivalent to the same concentration in blood, of 80. So when you talk in terms of number of drinks, it doesn't change when you're—

Mr. Paul DeVillers: That wouldn't change; you're just as wrong.

Mr. Brian Hodgson: That's right; you're just as wrong.

Mr. Chuck Cadman (Surrey North, Ref.): I would add that Chief Chambers out in Vancouver also thought in terms of three glasses of wine.

The Chairman: If I could pose a question to Ms. Deheut, you've indicated that there's a two-hour envelope within which a test must be given. If I blow way over that and it's two hours and 15 minutes or two hours and a half... why the two-hour cut-off? What happens that would throw that reading out?

Ms. Louise Deheut: I'm sorry, I didn't understand too well. Is that if we are outside that window of 20 milligrams?

The Chairman: No, it's if you're outside the two-hour limit. You must administer the breathalyzer within the first two hours after the accident or apprehension. If I still blow a very high reading, why is that thrown out? Why is there a two-hour cut-off.

Ms. Louise Deheut: Maybe Doug is the—

Mr. Doug Lucas: It's not thrown out. You can still present the evidence after two hours. What you don't get is the presumption. There is a presumption in the Criminal Code that if you do things properly and the two tests agree closely, then the result is presumed to be the result at the time of driving. That's a very big presumption, by the way, because it's a scientific fiction. The result will really not be the same, but it does permit some simplicity in the courts.

• 1715

If you go over the two hours, you lose that presumption. However, you can still prove it. You have to call a toxicologist, who would then interpret what the blood alcohol concentration was at the time of driving, and because the further away you get the calculation becomes less and less and less, you have less confidence in it. Then it becomes an issue of how much weight the court will give to that. It's not automatically lost if you're over two hours. You still can prove it, but it's harder to prove.

[Translation]

Ms. Louise Deheut: The two-hour criterion is used because alcohol is known to move around continually in the person's body. We wanted to find a value. As we said earlier, it's not a magic figure, but it is representative. We can be confident that the rate measured in a two-hour period actually does represent the amount of alcohol when the person was driving.

The best situation for the accused and the worst for the prosecution is when a person was in the elimination phase when the accident occurred. In such cases, in a two-hour period, you would have an alcohol loss of up to 30 milligrams per 100. However, when an accident happens or when an interception occurs, you do not know whether the individual did the consuming 15 minutes or two hours earlier. That's why we have the two-hour limit.

[English]

The Chairman: I have a question for Mr. Jeffery, if you could explain it to me again. I think you indicated some improvements that you would suggest vis-à-vis detection of drugs. Could you elaborate a little more on that?

Mr. Wayne Jeffery: Specifically, the two things are very important. If a person is charged with impaired driving, or if the police officer suspects him of impaired driving, he blows in their RSD or an evidentiary thing and you get a blood alcohol level of less than 100 milligram percent. What does a police officer do then? Right now his hands are basically tied.

The way the United States has done it is by, at that point, having the person at roadside do four standardized field sobriety tests. This shows physical signs of impairment. If he passes those physical signs of impairment then he's let go. If he fails those specific signs of impairment then he's brought in before another, independent police officer, called a drug recognition expert officer, who is trained in doing tests more scientifically. He can detect seven different classes of drugs through physical symptomology. Then if he detects one of those classes of drugs, that is the only time there would be a mandated body fluid demand. It's really a three-step proposal for the safeguarding of the individual. The blood alcohol level has to be less than 100 milligram percent, there have to be physical signs of impairment, there has to be the presence of the drug by another independent police officer, and then there is the body fluid demand.

The Chairman: What states have this?

Mr. Wayne Jeffery: Forty-one states have it now. This is controlled under the National Highway Traffic Safety Administration in the United States government. This was their response to drug-impaired driving. It started in 1984 out of Los Angeles, and this is mandated in almost all of the big states.

The Chairman: Mr. Saada.

Mr. Jacques Saada: If I come back to this

[Translation]

margin of error of 10 milligrams per 100, on a purely mathematical level, is this margin as significant with a limit of 0.8 as with a limit of 0.4? Is the impact of this margin the same, regardless of the limit?

Ms. Louise Deheut: Yes, because there is the question of the quality of the sample of the air in the lungs. It is difficult to obtain two samples that are identical in two given instances. The person does not necessarily breathe as heavily and does not necessarily provide the same sample quality. That's where the problem lies.

Mr. Jacques Saada: Either I fail to understand your reply, or I didn't state my question clearly enough. There are some places where the limit is 0.8 and others where it is 0.4. Does the margin of error you refer to have the same effect whether the limit is 0.8 or 0.4?

Ms. Louise Deheut: Do you mean that if there was a limit of 40 milligrams, it could go from 30 to 50?

• 1720

Mr. Jacques Saada: Is it equally accurate whether the limit is 0.8 or 0.4, or with a lower limit, does the effect of the margin result in more doubt?

Ms. Louise Deheut: The effect increases proportionately. If you have a discrepancy of 10 milligrams at a level of 50, the effect is twice as much as 10 milligrams at a level of 100.

Mr. Jacques Saada: So am I right in believing that the lower the limit, the more difficult it is to prove one's case?

Ms. Louise Deheut: That's where the problem can arise with a lower limit. As we said, the opposite is fairly easy to prove, in the case of alcohol consumption. In some cases where the person exhibits strong symptoms, you can always invoke impaired driving. A judge will be more reluctant to accept a person's claim to have had only two beers if he or she had difficulty talking or was disoriented. On the other hand, if you go down as low as 50 milligrams per 100, people with a 50 per 100 ml often do not have any apparent symptoms.

Mr. Jacques Saada: Can we follow this to its logical conclusion? I feel that it is very important. Does this mean that essentially, when you bring the limit down from 0.8 to 0.4—I'm talking generally, of course, and you have to be careful, but I'm being extreme here—you might appear to be more strict, but actually there is less of a possibility of finding the person guilty?

Ms. Louise Deheut: If the limit were lowered to 40 milligrams per 100 you would be giving more work to those specializing in defence, because it would be even easier to defend clients against such charges.

Mr. Jacques Saada: I understand. Thank you.

[English]

The Chairman: You have responded in a very excellent way to our questions. Is there any comment you wish to make to us that we haven't canvassed that might help us improve the impaired driving legislation?

Mr. Brian Hodgson: I think it's been alluded to here already, Mr. Chairman, and that's the evidence to the contrary—the section of section 258 of the code—where anything and everything goes. As Mr. Harris originally mentioned, all kinds of things can be brought up as evidence to the contrary. Perhaps your committee, and Parliament ultimately, could consider how stringent or strict an interpretation they want to put on what can be considered evidence to the contrary. Do they want to tighten that up to eliminate many of these spurious arguments that arise in court, particularly the classic two-beer defence? That's the one that I think probably causes the most headache.

The Chairman: Very good. Unless there are any other quick questions, I will conclude the formal inquisition. I appreciate the fact that you've brought a breathalyzer machine with you, and I'm sure some of the committee members would like to see how it functions, if we could impose upon you to stay.

Mr. Jacques Saada: I had lunch more than two hours ago.

The Chairman: The meeting is adjourned to the call of the chair.