Bill C-16 (Historical)

An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts

This enactment amends the Criminal Code to clarify that the reference to impairment by alcohol or a drug in paragraph 253(1)(a) of that Act includes impairment by a combination of alcohol and a drug. It authorizes specially trained peace officers to conduct tests to determine whether a person is impaired by a drug or a combination of alcohol and a drug and also authorizes the taking of samples of bodily fluids to test for the presence of a drug or a combination of alcohol and a drug in a person’s body.
The enactment also makes consequential amendments to other Acts.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

On a point of order, Mr. Chairman, it's the frustration that I'm feeling. I listened very carefully to Corporal Graham when he testified the first time on this issue. Part of my frustration is that we're, in my opinion, rushing this bill through. I would have wanted to hear from other witnesses.

I fully respect Corporal Graham. He testified extensively when we had Bill C-16 before us in the last Parliament. He's a very impressive witness. But he does come, I would say, with some ownership in the program. There's nothing wrong with that at all, but I believe there are counter opinions we could be hearing.

So if we hear him today, are we going to call other witnesses to come back? For instance, I don't know if they've tried to do this anyplace else. As Ms. Jennings was suggesting before you ruled her out of order, Mr. Chair, there may be some amendments to this so that, for instance, when the testing is going on in the darkened room, the videotaping wouldn't have to take place then, or maybe there's a way of doing it using other types of light.

In any event, I'm concerned that we simply hear from Corporal Graham at this point and then not hear from other individuals who also testified that in their belief the videotaping was practical in the station.

[Kirk Tousaw, Chair, Drug Policy Committee, B.C. Civil Liberties Association]

Thank you, Mr. Chair, members of committee. My name is Kirk Tousaw, and I'm from the British Columbia Civil Liberties Association. The association is the oldest and most active defender of civil liberties in the country, and we thank you for the opportunity to make some remarks on Bill C-32.

Like my colleague Mr. Brayford, I feel compelled to begin my presentation by saying that the association—as I think is the case for all persons who will testify before this committee—opposes impaired driving for any reason. All too often, persons who speak out against pieces of legislation like Bill C-32 are unfairly characterized as not caring about impaired driving, but that's not the case. We oppose impaired driving. But what the association also opposes is the imposition of new and intrusive laws that will diminish civil liberties, particularly when those laws are not necessary to and will not achieve legislative goals. We believe Bill C-32 is such a piece of legislation.

There are roughly five components to this bill: the increased penalties for impaired driving, including fairly significant increases in mandatory minimum sentences and fines; a new mandatory and highly invasive drug testing process; the creation of the new offence of driving while in possession of a drug; the creation of new offences related to causing injuries while impaired and refusing to provide breath or bodily samples to police after being involved in an accident, whether or not there's an issue of impairment; and restrictions on the right of the accused person to call evidence in his or her defence.

I'm going to focus my remarks on the new offences and the drug testing procedures. I will briefly speak about the evidentiary restrictions related to blood alcohol concentration tests, and there are really three points I'd like to make.

My first point is similar to what Mr. Brayford indicated. These restrictions are based on what I believe to be the faulty assumption that the blood alcohol test is infallible. Two, the evidentiary restrictions are undue restrictions on the charter right to full answer in defence. They will certainly be challenged. They will, in my view, almost certainly be found to violate the charter. And three, I'll just comment on what Mr. Solomon said particularly about British Columbia, where I'm from, and police being reluctant to lay impaired driving charges. He characterized that as a case of police response being frustrated with the process. I don't know if that's true or not, but police are often frustrated by the fact that defendants mount defences and sometimes are acquitted, although I should say they're rarely acquitted.

But another potential reason for why impaired charges are not laid in this country is that impaired driving charges are one of the very few offences in our Criminal Code that carry the imposition of mandatory minimum sentences, and the police are sensitive to and cognizant of this fact.

With respect to the “driving while in possession” offence, the first and primary concern is that, frankly, this offence has nothing whatsoever to do with impaired driving. It appears to be an end-run around the provisions of the Controlled Drugs and Substances Act that already make it illegal to possess drugs.

As the members of this committee I'm sure are aware, the burden of the drug laws in this country fall disproportionately on persons with lower incomes. This law might be the first step in the other direction, in that it will disproportionately impact people who have the means to have a car. But I don't think that's the direction we want to go with respect to creating new offences when the activity in question—possession of a drug—is already illegal.

On the idea that because you possess a drug in your car you ought to be punishable both by a maximum penalty of five years' imprisonment and the imposition of mandatory driving prohibitions, there's simply no connection. There's no connection between taking away somebody's ability to drive—and quite likely their ability to earn a living and be a productive member of society—and the fact that they may have had a small amount of marijuana in their car or their friend may have had a small amount of marijuana in their pocket and the driver knew it. It's just not related to impaired driving.

The purpose of this bill is purportedly to address the situation involving impaired driving, not the fact that people often use automobiles to go and purchase drugs. When you have a situation in this country in which almost half the population has used cannabis, marijuana, and some 15% to 20% of the country uses marijuana on a regular basis, I think it can be clearly demonstrated that the impact of this law is going to be disproportionate in terms of the seriousness of the activity targeted.

I should also say that this came up when this committee was discussing Bill C-16, the prior incarnation of the “drug-impaired” legislation put forward by the previous government. That legislation did not include this new offence of driving while in possession, although it was added in committee by member Vic Toews. At the time, Ms. Kane, senior counsel from the justice department, essentially said there's going to be a charter problem with this because the ends of the legislation are not connected to the new offence at all.

The fact that you have some drugs in your car does not mean you're driving while impaired. I will also suggest that of the number of people in this country who use marijuana, for instance, the vast majority of them are responsible citizens who are not driving while impaired, although they may use their vehicles to obtain the drug. It's just like how you will drive to the liquor store to buy beer. That doesn't mean you're going to drink the beer in the parking lot of the liquor store and then drive home while impaired. So this shouldn't be in the bill at all.

With respect to the proposed drug testing procedure, there are a significant number of concerns that the Civil Liberties Association has and that I urge this committee to consider. First, the proposed legislation is quite fuzzy on the concept of reasonable grounds. What are the reasonable grounds that are going to be utilized by police officers to perform the standardized field sobriety tests on the side of the road? What are the reasonable grounds that are going to be used to demand that the driver come to the station for the interview and for testing by a drug recognition expert? What then are the grounds that are going to be used to demand, under threat of criminal punishment, that citizens of this country provide blood, saliva, and urine samples? These are highly intrusive procedures.

This is a country that cares very deeply about privacy, and there is a significant privacy concern with respect to those things that are within your body. The process for getting these samples is, in itself, quite invasive. It's humiliating and can be quite degrading. For instance, if you're asked to provide a urine sample, in order to ensure that the sample is true and accurate you'll have to be observed giving the sample. That's a degrading experience. Some people are afraid of needles. To get a blood sample, you have to stick a needle into somebody's body and withdraw the blood. This is going to be a very humiliating experience for people who are subjected to it.

Another problem is that the process set out in the legislation is cumbersome and time-consuming. You have to remember that from the moment you're stopped by the police, you've been detained by the police. Your liberty has been restricted. And we now are talking about a three- or four-step process that will take a significant period of time to complete. Throughout that entire period of time, the individual has been detained.

Worse, the results of both the DRE evaluation and the bodily sample testing are, frankly, of little evidentiary value to the ultimate question of impairment. The DRE process has a veneer of scientific credibility behind it, but at the end of the day, it's observational on the part of police.

One study, a study done in Oregon by Smith, suggests that the average error rate for DRE testing is about 21%. The legislative summary attached to this bill suggests that error rates are anywhere from 10% to 25%. To put it another way, we have a situation in which, of every hundred people who are forced to come to the police station to be subjected to DRE testing, twenty will end up falsely accused and will then be forced into either committing a criminal offence by refusing to give a urine or blood sample or being put through the invasive procedure of giving that urine or blood sample. That's twenty out of a hundred persons who have to go through this experience but who may well not be under the influence of any drug at all. There's an error rate, and there's an error rate because DRE testing is simply not foolproof.

Worse yet, the invasive process, the forced taking of blood, urine, and of saliva, yields information of very little value to the ultimate question. The legislative summary is clear. As Mr. Solomon pointed out, there's simply no way in the science to link the presence of drugs in one's system to impairment. In legal terms, the information gleaned from the blood or urine test is irrelevant to the ultimate issue of impairment.

Frankly, I'm not sure the judges are going to be permitting this evidence to come in, because it's not relevant evidence. Absent reliable scientific links between drug use and actual impairment, it is inappropriate to conduct invasive searches of one's bodily fluids and to impose the accompanying detention that is necessary to effectuate the tests. It's simply inappropriate.

There is no doubt that impaired driving is unacceptable. The legislative summary suggests that 97% of all motor vehicle fatalities and 98% of all motor vehicle injuries are not related to drugs. The Senate report on marijuana, also cited in the legislative summary, concluded that for cannabis, which has been said to be the most widely used illegal drug and the most widely used drug second to alcohol, “The visual recognition method used by police officers has yielded satisfactory results”. In other words, we already train the police to observe people's levels of impairment and to make decisions at the side of the road on whether to charge the person with impaired driving or to take some other action such as imposing a 24-hour driving suspension.

This law has been characterized as a tool in the toolbox for police, but I think it's akin to using a hammer to pound in thumbtacks. We have a procedure in this country for charging people who are driving while impaired by drugs. As Mr. Solomon pointed out, we've had that for a number of years. It exists, it is used, and it can continue to be used. Police do that regularly. The invasive testing contemplated by Bill C-32 simply adds a false veneer of scientific credibility to the individual officer's subjective determinations.

I can certainly say more about each of these points, but the final objection to Bill C-32 is more philosophical than practical. Laws should be promulgated in this country in order to achieve results, not, frankly, so that government can be seen to be achieving results. First, the money that's required to implement this new law has been cut by the present government, with $4.2 million taken away from drug recognition training for police officers.

It appears that the provinces are being expected to bear the financial burden of implementing this new procedure, a process that will undoubtedly take several years and cost several millions of dollars. I would suggest to this committee that this money is better spent on activities that have been shown in the past to make a significant dent in the problem. We have achieved some great successes in this country in reducing both drunk driving and other dangerous behaviours through the use of education.

The assumption that increased penalties in the criminal law or the new criminal scheme is going to deter the behaviour is an assumption that bears some scrutiny, because I think it's one without merit. The way to stop this activity—and it is reducing—is through educational programs. It's through teaching people that this is a dangerous activity. Mothers Against Drunk Driving has been instrumental in doing just that, both in this country and in the United States. The television commercials have had an enormous impact.

Having defended these cases both here and in the United States for a number of years, I can tell you that people are doing this less. And they're not doing it less because of the law; they're doing it less because it's wrong. They know it's wrong because people can be hurt, and they've been taught that. But they're not doing it less because we're increasing penalties or because we're going to take blood or urine samples from them at the side of the road or in the station.

I would urge this committee to think long and hard about going forward with a law that dramatically restricts civil liberties, that's highly invasive of privacy, and that frankly isn't going to achieve the legislative goals that I think everyone in this room would like to see achieved.

Thank you.

[Paul Burstein]

Once again the Criminal Lawyers' Association is honoured to have the opportunity of appearing before this committee to help with the very important work that it does.

With me today is Jonathan Rosenthal. He is a lawyer of almost 20 years' experience in defending drinking-and-driving cases. He's lectured to law students, lawyers, and judges on the topic, and I'll be asking him to address you on the bill's amendments relating specifically to the investigation and prosecution of drinking and driving.

I should say I sort of lured him here under false pretences. I promised him we'd see the Senators, and we haven't yet been to the Senate chamber to have a gander. So I promised him we'll go after we're finished here.

My name is Paul Burstein. I'm here to address you on the new drug-impaired driving provisions. I'm not only a criminal lawyer; I also am an adjunct professor at Osgoode Hall Law School and Queen's University. I've been a director of the CLA for ten years, and I've been called upon on a number of prior occasions to testify before this committee on issues relating to marijuana and cannabis. I should say I was also counsel on the trilogy of cases that wound their way up to the Supreme Court of Canada dealing with the decriminalization of marijuana, as well as many of the medical-marijuana cases. I only say that because while I don't purport to be a scientist, I certainly consider myself to be quite familiar with the social science concerning marijuana and its uses and abuses.

Let me begin by emphasizing, if I could, that when you decide what, if anything, to do about marijuana, you must be very careful in dealing with “studies”. As many say about statistical analyses, “figures lie and liars figure”. The report of the Senate Special Committee on Illegal Drugs identified the weaknesses of many of the studies that concerned the use of marijuana and its symptoms and manifestations. They noted that “there are divergent opinions about the interpretation of studies and their meaning in connection with the specific effects of marijuana on driving”.

I only say that because when police groups or any other proponents of the bill who come before you cite numbers and statistics, I just urge you to be very cautious before you accept the data. The most objective and complete summary of the data, I believe, at least up until 2002, was found in the Senate report, and I urge you to go to that. Indeed, the Senate report concluded, after reviewing essentially all the studies current to that date, that findings show that cannabis alone does not increase the likelihood of responsibility in an accident. The findings definitely confirm the significant risk of alcohol, but generally fail to demonstrate that there is an effect of cannabis alone on the risk of being responsible for a fatal accident or an accident involving serious injury.

It's not to say that it's a good idea to drive after consuming marijuana. Of course it's not. But the question is whether there's enough there to warrant invocation of the blunt instrument of the criminal law. Also, I say to you that when proponents come here and try to tug at your heartstrings through reference to families of victims of fatal accidents, it's essential that you keep in mind two things. As you've already heard some of my colleagues here say, these provisions will do little or nothing to prevent the small percentage of the population who do drive after consuming marijuana from continuing to drive after smoking marijuana. You'd be fooling yourselves to think otherwise. Second, as you've also heard—and I certainly endorse the comments of Mr. Therien and Professor Beauchesne—there are other and much better non-criminal ways of preventing and reducing drug-impaired driving.

As I'm sure members of this committee already know, the Senate committee has already plowed much of the ground for you. Indeed, having considered the social science evidence, the Senate committee concluded that “it would appear that it would be highly desirable to adopt the DEC”—that's the drug enforcement classification—“and train police officers in drug recognition”.

However, I would say there are two reasons why that recommendation does not justify this legislation, at least at this time. First of all, the Senate recommendation about DREs, or drug recognition evaluators, was part of a bigger package that recommended decriminalization of the personal use of marijuana, which of course was assumed to likely increase not only the use of marijuana but the likelihood that people might drive after consumption. That recommendation--to decriminalize the personal use of marijuana--was predicated on the Senate committee as well as the committee of this House recognizing that the criminal prohibition on marijuana caused disproportionate harm to people by virtue of the criminal prohibition compared to the potential harm that it might prevent. So this is only going to make it worse. It's going in the wrong direction.

On proposed subsection 253.1(1), the driving-while-in-possession offence, there's nothing about that offence that prevents harm. There's simply no scientific or logical basis to conclude that the mere possession of drugs increases the risks associated with impaired driving. If that were the case, why has no province in this country imposed licence suspension as a consequence of a drug conviction? No country in the world does that. Remember, according to the statistics that are presented to you as to why something needs to be done, this offence, proposed section 253.1, will have the most effect on young Canadians, because it would seem that mostly young Canadians are engaging in this behaviour. There's already, though, according to the Senate and the House committee reports, a disproportionate impact of the criminal prohibition of marijuana on young persons. This is going to make it ten times worse.

The second reason why we say the Senate recommendation does not support this legislation is because unfortunately the reality of the screening testing mechanisms does not yet meet the hopes and expectations. I don't believe the Senate committee heard evidence about what the current state of affairs is. There's some reference to studies there, but Dr. Beirness of the Traffic Injury Research Foundation testified before this committee on Bill C-16 and he recognized that the testing procedures were far less than perfect. In the States, even, they're at best reliable maybe 80% to 90% of the time. But what does that mean? It means one in five or one in ten most likely young Canadians, on the strength of an unreliable test, will wrongly be taken into police custody to the hospital and forced, under penalty of criminal prosecution, to give a blood sample for no good reason. That, in our view, is an undue cost.

Let me wrap up my section by just saying there are three significant costs to the criminal justice system you've already heard some allusion to. First is the cost of training the police. There are much better uses of scarce police resources than training them to do this. Bear in mind, it's not like an instrument where you can buy it once. Even though police officers may advance in their careers from front-line officer to detective to administration, you have to keep re-training those police officers. A machine, at least, stays in the police detachment as police progress through the system. It's very expensive. Second, even if the DRE provides grounds to take bodily samples, the bodily sample analysis is itself a big question mark. What level of drug in the blood or urine suggests impairment? There is no clear science on that, which means, the third problem, the cost of litigating these, as you've already heard, will be very expensive in every one of these cases because this is very soft science. The length of trial will double or triple, as my colleague Mr. Rosenthal is about to tell you.

I conclude by telling you that we strongly oppose certainly all the DRE amendments, especially the offence provision, proposed section 253.1. Deterrence doesn't work. In fact, if it did, why do you need it, because there's already a criminal offence to possess marijuana, so you know that doesn't work. It will significantly burden the criminal justice system. Right now there are probably no trials in the system--or very few--on defences to possession of marijuana because most of them are diverted or people plead guilty because of the somewhat benign consequences. No person will agree to plead guilty to possession of marijuana while driving a car because of the devastating consequences.

Finally, as for the other amendments, no one wants drivers on the road who are stoned, as Professor Beauchesne says, nor do we want them drowsy or unskilled or on their cell phones. These amendments will not have a net reduction on societal harm, but rather it will increase it. We would rather see you spend more money equipping police to get guns off the street than getting marijuana drivers off the street.

Mr. Rosenthal.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

Thank you, Mr. Chair.

I have just a quick question. I don't know if you can answer it for me, Mr. Yost, but Bill C-32 and its predecessor, Bill C-16, have been in the public domain for a while now. I'm assuming there's generally widespread support, at least among the law enforcement community and parliamentarians.

Can you tell us who is not supportive of this initiative and the approach they're taking?

Criminal Code

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, if no one else wants to speak to the bill, there are some items I want to bring forth.

First, like everyone in the House, I want to do everything possible to stop impaired drivers, whether or not they are impaired by drugs, which is the emphasis of this particular bill. Of course, our party and the others, I am sure, have had this as an ultimate goal. Our party brought forward Bill C-16 in the previous Parliament to try to deal with this issue.

Following up on my last comment, the problem we were having at the time was with the detection of various drugs in the system and the discernment of the impairment due to them, and how it could be proved to the extent that we would be successful in prosecutions.

We should not let that stop us. For those reasons, we have to keep working on that technology and training. We have to keep working on the ability to convict people and to determine with regard to the various drugs what impairment is, how it can be measured, and how it can be prosecuted to make sure that needless accidents do not occur, injuring families, children and other innocent people.

I want to comment on what the previous member said. I will take a step out from this bill for a minute to comment on his remark about the lineup of justice bills in committee. I commend the justice committee members for such a heavy agenda, but I disagree with the hon. member that those bills should have been put into an omnibus bill, thus putting them all together to make it faster, because there were a number of very controversial bills, to be nice about it, bills that went against the basic mainstream of modern thought in the judicial system, a number of which we believe would increase crime in Canada, would be soft on crime and would put more trained criminals on the street. If we were to put a number of controversial bills together and people were to vote against one of them, it would kill the whole bill. In that respect, the government would not have had anything get through.

However, we are dealing with bills of such a serious nature, bills about incarcerating a larger number of Canadians and using a large number of resources for that, resources that could be used for police or prevention, bills about reducing judges' discretion and pay rate, and bills about taking away the conditional sentences that are so effective for aboriginal people and others in stopping recidivism when the old system of simple incarceration and putting people in prison to train to be better criminals is not working.

When we have a number of serious bills like these, I would not like to see them all put into one bill. I do not think people realize the magnitude of the threats to a good judicial system that were before us in Parliament. I think the government did the right thing by bringing each bill forward individually so they could be debated individually, even though it means more work for us in the justice committee in making sure that these serious proposals are dealt with seriously and at length and with a number of expert witnesses to help us in that direction.

Going back to BillC-32, although we are strongly supportive, we certainly want a serious investigation in committee, along with the long lineup of bills we do have in that committee. For one thing, we want to look at the practical tools available for the analysis of different drugs in the system. We want to look at the analysis and the effect on impairment, at the way to measure this and the way this would stand up in court in a prosecution.

A previous question by one of our colleagues brought up a good concern related to resources. That is a concern not only for this bill but for several other bills before the House at this time.

We should also ask at committee whether the attorneys general are willing to prosecute the bill and whether they have the resources. Do they think this has a high enough priority to divert resources for the training and the enforcement? This certainly will add a significant burden to a task for which they only have limited resources. That certainly has to be investigated in committee.

We want to ask those people, including the police forces and the attorneys general, what their feelings are about whether they want a bill, whether they can enforce it, whether they have the resources to do so and what can be done about it.

It would also be important to talk to the police officers who have had experience in the roadside checks and ask them about the problems they may have had on the more simple cases that we have at the moment with the tools that are now available, the ones that have been tested and proven. We should ask them how they think this system would work when it is outlined.

Another section in the bill relates to increasing the penalties for alcohol crimes and making stiffer sentences for the various levels of alcohol crimes. I certainly think we should have a discussion on that in committee.

I would say that the majority in parliamentarians are primarily against increasing minimums or even imposing minimums for many crimes because the experts have told us, quite clearly in committee, that it is not effective and that it does not work.

Maximums can be added to crimes to give a judge more discretion, a judge who understands the situation, who wants to penalize unrepentant repeat offenders and who wants to take seriously some of these crimes. I think those should be discussed in committee so we can have the type of debate we have already been having in committee about various sentences and also comparing them with other crimes and the types of sentences that are available for other crimes, the types of options, and to ensure that driving while under the influence of alcohol or under anything else that would be seen as driving impaired and threatening innocent citizens, is seen as a serious offence.

Another section in the bill, which should be discussed in committee, and I think I asked this previously of the parliamentary secretary, is the section relating to the taking of fluids and body sample tests. This would be needed to analyze the blood level for various drugs required in this bill.

Every time we come to a provision such as this in various bills, such as in the good Samaritan act, discussions take place about the volatility of the body and the privacy of a person. We need to ensure that this law is written very carefully so that people are protected but, on the other hand, that the general citizenry are protected from a person who would drive impaired and is a threat to us all.

Another section of the bill that I would like to ask questions on in committee relates to restricting the use of evidence to the contrary.

A jury or a judge can throw out any evidence if they think it is fallacious, not useful or just a decoy to detract from the real issues in the case but, nevertheless, I find it hard to understand how, in our present justice system, any evidence can be restricted. Evidence is evidence. People should be able to bring forward evidence and the judge and jury should decide on the evidence that has come forward. They can dismiss poor evidence but I do not think we can say that evidence cannot be brought before the court and then convince people that we have a fair justice system.

The bill contains many good items but a lot of areas still need to be looked at. As I said, we were looking at this and we also proposed a bill because people were being taken out of their vehicles and being charged for being under the influence of alcohol when they could have easily been under the influence of drugs and have caused the same carnage to innocent people. We have no mechanism in place to catch those people, to analyze the situation and to prosecute them successfully.

If we can refer this to committee, hopefully we can ensure that the bill will be effective in achieving the goal that I am sure everyone in the House wants, which is to make our streets safer by getting people, who would wilfully put themselves in the situation of harming both themselves and others, off the roads. They need to understand that we take this seriously and that we will put the resources into both the technology, training and the drafting of a law that will be effective in reducing this type of unnecessary carnage and accidents affecting innocent people on our highways.

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, I am pleased to speak to Bill C-32, an act to amend the Criminal Code to strengthen the enforcement of drug impaired driving offences in Canada.

On November 4, 2004, the former justice minister under the Liberal government introduced Bill C-16, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts. This new legislation builds on Bill C-16 but includes stronger penalties than our bill had proposed.

Bill C-32, the Conservatives' proposed reforms to the Criminal Code, include increasing penalties. Drivers would be charged if in possession of illicit drugs. Drivers with blood alcohol levels exceeding .08 would face a life sentence penalty in the case of causing death and a maximum 10 year sentence in the case of causing bodily harm. These provisions are in addition to existing provisions that hold an alcohol or drug impaired driving offence that causes bodily harm to be punishable by up to 10 years imprisonment and that such an offence that causes death is punishable by life imprisonment.

Impaired drivers would face higher mandatory minimum penalties. For a first offence, the fine would increase from $600 to $1000. For a second offence, sentences would increase from 14 days mandatory prison to 30 days minimum. For a third offence, prison sentences would increase from 90 days minimum to 120 days minimum. When the offence is punishable on summary conviction, the maximum term of imprisonment would increase from 6 months to 18 months.

The bill would also provide more tools for the police. Police would be able to demand that a person suspected of driving while impaired by alcohol or a drug participate in a sobriety test at the roadside and police would be able to demand that a person suspected of driving while impaired by a drug participate in physical tests and bodily fluid sample tests.

The Criminal Code currently makes it an offence to drive a motor vehicle when one's ability is impaired by alcohol or a drug, or a combination of alcohol and drugs. There is a further offence with respect to alcohol while driving while one's blood alcohol limit exceeds the legal limit of .08%.

The anomaly is that currently there is no legal drug limit. There are non-quantifiable tests such as erratic driving and witness testimony. If the driver voluntarily participates, results of a drug test are admissible but this a very rare occurrence. As a consequence, police powers for obtaining evidence of drug impaired driving are very limited.

It is urgent that Parliament address drug impaired driving. The 2002 Senate special committee report on illegal drugs, “Cannabis: Our position for Canadian Public Policy”, found that between 5% and 12% of drivers may operate a motor vehicle while under the influence of cannabis. Further, a survey by the Traffic Injury Research Foundation revealed that in 2002 almost 20% of Canadian drivers had taken the wheel less than two hours after consuming a potentially impairing drug. This included both legal and illegal drugs. These statistics and findings must be reversed.

In 1999, I chaired the justice committee when we studied the issue of impaired driving and prepared a report entitled, “Toward Eliminating Impaired Driving”. The committee was very frustrated with the appreciation that drugs play a contributing role in motor vehicle accidents but that there were no practical legal limits to test for drugs.

There is no scientific consensus on the threshold drug concentration levels in the body that cause impairment making driving hazardous. Unlike the Breathalyzer tests used for alcohol, there is no objective test to measure drug impairment. Further, there is no measurable link between drug impairment and drug quantity. In addition, traces of some drugs could remain in the body for weeks. For instance, the active ingredient in cannabis can be detected for up to four weeks, although its impairing effects do not last. Because there is no scientifically proven threshold, it is not possible to propose a legal limit.

Because there is no clear drug limit testing, a drug recognition expert, DRE, is acknowledged as a necessity.

The lack of authority for police to make a demand for drug testing was a concern that was raised in a number of credible submissions to our committee, such as the Canadian Bar Association, the Province of Ontario, the Canadian Automobile Association and others, who called for expansion of police powers to allow a demand for drug testing.

The committee had concerns about drafting such provisions. Parliament would need to provide legislative guidance on what would constitute reasonable and probable grounds to believe that the offence has occurred. Further, the power to demand bodily samples for drug testing, such as blood, would be intrusive and require consideration of potential violations of the Charter of Rights.

Notwithstanding that, the committee in recommendation 12 suggested a Criminal Code amendment to allow a judge to authorize the taking of a blood sample to test for the presence of alcohol or drugs based on reasonable and probable grounds that an impaired driving offence has been committed. The committee also recommended consultation with the provinces and territories to develop legislation aimed at better obtaining evidence against suspected drug impaired drivers.

The Department of Justice consulted extensively with the provinces and territories, following which the Liberal government introduced two identical pieces of legislation in two subsequent parliaments to deal with this problem. Indeed, the Liberal Party takes impaired driving very seriously. Unfortunately, both Bill C-32 and Bill C-16 died on the order paper when elections were called in November 2004 and 2005 respectively. The Conservatives have reintroduced very similar legislation, with stronger penalties, however.

Passage of the new Bill C-32 will be a significant step toward making roads safer and protecting the public. It will give the police the authority to demand standardized field sobriety tests at the roadside. The officer must have reasonable suspicion of alcohol or a drug in the body before making the demand. The standard test involves walking heel to toe, following with the eyes the officer's hand movement, and balancing on one leg with the other leg held in front about six inches off the ground.

These roadside tests take about 10 minutes. If the driver fails the roadside test, the officer then would have reasonable grounds to demand a breath test on an approved instrument in the case of alcohol. In the case of a drug, the officer would have reasonable grounds to demand an evaluation by an officer certified to do drug recognition expert or DRE tests back at the police station.

The purpose of the evaluation is to identify the class of drugs, if any, that is causing impairment. The evaluation further involves physical tests and checking of vital signs. This evaluation takes about 45 minutes. Following the identification of a class of drugs, the officer could then demand a sample of a bodily fluid, urine, blood or saliva, to test for the presence of a drug.

Refusal to comply with a police order to submit to a roadside sobriety test or to an evaluation at the police station, or to provide a bodily fluid sample, would constitute a criminal offence, just as it is now an offence to refuse a police order to submit to an alcohol breath test.

The idea with the drug impaired driving investigation is not to prove that a concentration of a particular drug is exceeded and that therefore the person is impaired. As previously indicated, there would be few drugs for which there would be a scientific consensus on the concentration level at which there would be impairment for the general population of drivers.

The bill proposes no legal limits for the wide range of drugs. Instead, the idea is to provide for the investigation of a driver's drug impairment by observing physiological symptoms that are unique to a particular class of drugs, and then to confirm with a bodily fluid sample whether the drug was indeed present.

If the tests do not show impairment, the driver is free to go. If the officers see a medical condition, they can obtain medical help.

The combination of steps, that is, the police officer observing the driver's ability to perform the simple tasks of the roadside standardized field sobriety test, the results of the more comprehensive testing by the drug recognition expert, and the confirmation by the independent laboratory analysis of the presence of the drug identified by the DRE as causing the impairment, will provide the necessary checks and balances.

Let us consider the charter considerations. We know that the demands for alcohol breath tests on approved screening devices at roadside, without a right to contact counsel, have been found justifiable by the courts under the Canadian Charter of Rights and Freedoms, pursuant to the section 1 demonstrable justification limitation on a right.

The right to counsel must be given following the demand for an alcohol breath test on an approved instrument back at the station and before the approved instrument testing is done. It is anticipated that the same practice would prevail for the DRE evaluations envisaged under Bill C-32.

I would suggest that there are aspects of the bill that need further consideration. I do express reservations regarding the new offence of driving while in possession of an illegal drug, where any person found in possession of a controlled substance while operating or in the care or control of a motor vehicle, vessel, aircraft or sailing equipment is guilty of an offence. This provision would apply whether the person is in personal possession of the drug or the drug is simply in the vehicle, provided that the individual knowingly had possession of the drug without lawful excuse for such possession.

I agree with those who claim that this new offence does not belong within Bill C-32 as there is no connection between possession of a drug and impairment and possession of a drug that is already prohibited under section 4 of the Controlled Drugs and Substances Act.

Of necessity there will have to be an educational component of this new impaired driving strategy, under either the justice or the health department. Individuals using marijuana may or may not know that they could be impaired and should take this legislation very seriously. Individuals taking prescription or off the shelf drugs may not understand that they could come within the boundaries of this legislation and must ensure that they do not operate a motor vehicle while influenced by such drugs.

I have every confidence that NGOs such as MADD will continue to put out relevant and compelling information in this respect. The federal government should either do the same thing or provide funding assistance to organizations such as MADD to do so.

Impaired driving continues to be a scourge on our society. I will continue to support legislation that will help not only to reduce it but to eventually and ultimately eradicate such conduct.

[Dean Del Mastro, Conservative, Peterborough, ON]

Mr. Speaker, I am pleased to join this debate and speak in favour of Bill C-32, a bill that amends the Criminal Code in relation to impaired driving.

A great deal has already been said about the provisions of the bill. I do not wish to go over the same ground. Instead, I want to focus on some of the objections to the legislation that have appeared in the media regarding the bill.

First, there have been some who question whether the bill is constitutional with respect to the drug impaired driving provisions of the bill. I remind the House that this was extensively canvassed when Bill C-16 was considered.

Of course, no government will present to the House legislation that it considers is going to violate the Charter of Rights and Freedoms, unless it is convinced that the bill will be upheld as a reasonable limit on those rights. The previous government obviously considered the bill charter compliant or it would not have introduced Bill C-16.

When Bill C-16 was in committee, the then minister of justice, a well known human rights advocate, in his opening remarks on the bill addressed the issue of charter compliance. He said:

Let me deal for a moment with some charter considerations. We know that the demands for alcohol breath tests on approved screening devices at roadside, without a right to contact counsel, have been found justifiable by the courts under the Canadian Charter of Rights and Freedoms, pursuant to the section 1 demonstrable justification limitation on a right.

The right to counsel must be given following the demand for an alcohol breath test on an approved instrument back at the station and before the approved instrument testing is done.

I anticipate that the same practice would prevail for the DRE evaluations envisaged under Bill C-16. With Bill C-16, we have tried to closely parallel the grounds that our prerequisites for making alcohol breath test demand. I believe that Bill C-16 offers good and important solutions that will be found justifiable under the charter.

Later, in response to a question he went further:

No, I think the court would apply the generic approach with respect to whether a limit on a right is justifiable under the circumstances, and then they would go into the four-part proportionality test.

They would ask themselves, is there a pressing and substantial objective? They would come to the conclusion, in my view, that there is a substantial and pressing objective, which is of course, at the bottom line, the saving of lives.

They would then look to see whether the means chosen were appropriate for the purpose or objective sought to be secured, as the other part of the proportionality test. I think the court would conclude here that this is a proportional remedy for the objective sought to be secured.

I believe the House can be assured that the requirement that a driver perform standard field sobriety tests at the roadside which are relatively brief will be upheld in the same way the roadside screening for alcohol has been upheld.

Similarly, the tests back at the station which will be performed by a trained officer are analogous to the test on an approved instrument.

I know many, if not most, members of the House would like to have an instrument that would measure quickly the concentration of various drugs just like the approved instruments that measure blood alcohol concentration.

The technology simply does not exist and, until it does, we will have to rely on various tests such as the reaction of the eyes to light, blood pressure, pulse and muscle tone on which the trained officer bases his opinion of which drug or combination of drugs and alcohol has caused the impairment. That opinion has to be validated by finding the drug in the person when bodily fluid is sampled.

Another objection to the proposed legislation's constitutionality was made by the president of the Ottawa Defence Lawyers Association reported in the Globe and Mail. He objected to the proposed offence of refusing to provide a breath sample when a person has been involved in a crash which will be punished in the same way as impaired driving causing bodily harm or death. He said:

There is no connection between the fact that you refuse to provide bodily substances and the accident itself. If you refuse, you have no defence.

When a person is charged with impaired driving causing death or bodily harm, the Crown has to establish the impairment and that the driving caused the accident.

The new offence will require the Crown to prove the refusal and then prove that the driver knew or ought to have known that he or she had caused an accident that had caused death or bodily harm.

This offence is modelled on the offence of failure to stop at the scene of an accident. The mental element is the intention to frustrate the police investigation.

In the case of flight, the person simply tries to avoid the police. In the case of refusal, the person refuses to provide a breath sample, the breath sample evidence necessary to determine whether the person was over .08 or in the case of a drug the person refuses to perform the test or to provide the bodily sample to determine whether the drug is actually present in the body.

Of course, in most accident situations the person will be well aware that there has been an accident. The police will still have to have reason to suspect the person has alcohol or drug in their system before making the demand.

Finally, I note that some of the users of medical marijuana claim that this legislation is aimed at them and will prevent them from driving their cars.

Russell Barth, quoted in the Edmonton Sun and other newspapers and described as a medical marijuana user and member of the National Capital Reformers, said that, “Discriminating against us based on our medication is much like discriminating against us based on the colour of our skin”.

In fact, medical marijuana users will be treated like other persons who take prescribed and over the counter drugs. People take all kinds of drugs for legitimate medical reasons. The question is whether they are impaired by that drug. If they can take their medicine and still pass the standard field sobriety test, they can drive. If they cannot, then they had better find someone to drive them around.

The offence of driving while in possession of an illicit drug also specifically provides that the person must be doing so without legitimate excuse. Clearly, persons who have been admitted to the medical marijuana scheme have a legitimate excuse to transport a supply of marijuana with them and would not be caught by this new offence.

I believe the bill is a balanced response to a very serious problem. I believe it is in fact long overdue. The minister in his speech made it clear that the government was prepared to consider any amendments that will strengthen the bill that the standing committee may suggest after hearing from witnesses.

I urge the members to give the bill second reading. I also urge the standing committee, which has a heavy workload, to give this bill priority. It will undoubtedly save thousands of Canadians from being injured or killed by impaired drivers.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I rise today to speak with regard to Bill C-32 which essentially has two major components. One of which would address for the first time a methodology to use in our criminal justice system to deal with impairment while driving an automobile or plane under the influence of a drug rather than alcohol.

The second part to the bill, which quite frankly is probably more significant in terms of its effectiveness, deals with our existing law regarding impairment because of consumption of alcohol. One of the defences to those charges that has cropped up quite frankly has gotten to the stage of almost being a scandal in this country in terms of the number of times it is used and what I would call the underlying weakness of the jurisprudence that allows for that defence.

Both of these sections are important sections. We need to address them as a legislature and to see if in fact we can more effectively deal with the problem of impaired driving whether it is because of alcohol consumption, as we have traditionally looked at it, or now both a combination of alcohol and drugs or drug impairment on its own.

The first part of this bill is a reincarnation of Bill C-16 from the last Parliament that dealt exclusively with the issue of impairment by drugs. The sections in this bill are replicated from that former bill. Essentially what it attempts to do, which I have some concerns about, is to take us down the road that we followed with regard to impaired driving by alcohol going back now some 30 plus years and using technology, as we did then in the form of the breathalyzer, to identify people who were impaired and to deal with them by way of criminal penalty sanctions.

The difficulty I have is that the existing technology with regard to drug impairment is basically non-existent. It is nowhere near the situation we have with alcohol impairment. Because of the technology we initially developed and have now refined, the assessment of an individual being impaired as a result of the consumption of alcohol is quite clear and scientific.

Generally speaking, and it is in the percentile of 100%, it is irrefutable. Unless the equipment is malfunctioning or the operator is not qualified and has not used the equipment properly, the equipment properly and effectively assesses a person's impairment.

I think we can safely say there are two exceptions to that and a crucial one is when the test is given. If there continues to be some consumption of alcohol between the time the person stops operating the vehicle and the test is administered, it is possible that consumption will bring up the blood alcohol level and in fact take it over the prescribed limit when in fact the accused individual may not have been impaired at the time he or she was operating the vehicle. That is one defence and it stays in.

The second one is where the consumption of alcohol was huge immediately prior to the operation of the vehicle. When the test is given, the person is over the limit but in fact again, because it takes some time for the alcohol to work its way through the system and impair a person from operating a vehicle, that person in fact would not have been impaired at the time of the operation of the vehicle.

This bill, as did Bill C-16, preserves those defences, so if that can be established by evidence there would then be a defence to the charges because people would not have been impaired at the time they were operating the vehicle.

The difficulty we have with the drug impairment attempt that is going into this bill, and again that was in Bill C-16, is that we do not have two things. We do not have the technology to do a quick test, roadside or at a police station, but more importantly, we do not have any standards as to what type of drug will have what type of an effect in terms of impairment and the ability of the human being to operate a vehicle.

Because of the work we did in the last Parliament on Bill C-16 we took a great deal of evidence. In this regard the European Union and a number of countries in Europe are working to try to establish a standard of impairment from the consumption of marijuana or the chemical derivatives. They have not been able to do that up to this point. They believe they are making some advances but they are clearly not there at this stage.

In regard to marijuana specifically, one of the problems we have is that the particular chemical derived from the marijuana plant stays in the system for an extended period of time. This was a defence by one of our Olympians and that was his argument at that time. It saved the day for him. In fact, it is the scientific reality that the chemical substance stays in the system for an extended period of time, so it is going to be very difficult from what we can see at this point, mostly because of the work that has been done in Europe, to set that minimum standard.

The reason this is so important and that I am pursuing this issue with regard to marijuana is that there is no question, and we are hearing from our police officers across the country, from our prosecutors, from people involved in the impaired driving issue, that marijuana after alcohol is clearly the second biggest problem substance that we have. People consume it and then drive a vehicle while impaired. However, we do not have the technology or the science at this point to establish that minimum standard.

We also do not have any equipment that could be used at the roadside or at the police station that would do a quick assessment. That can only be done by way of taking a blood sample or a urine sample. This legislation recognizes that this can only be done by a qualified medical person, a doctor or medical technician which generally would have to occur at a medical clinic or hospital.

The proposal in the bill, as was in Bill C-16, is to establish a system in Canada mimicked after some that have been used in the United States and I believe in England, where we would have specially trained police officers. It would be a three stage approach. Initially the police officer who stopped the vehicle based on reasonable and probable grounds that the driver was operating the vehicle while under the influence of some chemical or drug would do an examination. This may include the traditional ones of walking the line, trying to touch the nose, balancing on one leg, looking at the eyes, and hearing the individual speak, the traditional ones we had before the breathalyzer for alcohol consumption.

If the officer made a determination that the person was clearly suffering from some impairment in terms of being able to operate the vehicle, the officer would then require the person to attend at a police station where he or she would be examined by a specially trained police officer. The language that is used in the statute is that of an “evaluating officer”. This person would be a police officer with general training but would have additional training and this is where I have one of the problems.

Not taking anything away from the individual, but in looking at the training material they use to train this person, I have serious doubts about his or her ability to make this evaluation. The evaluation they are required to make by statute is not only to evaluate the person's impairment, but to evaluate the type of drug was used as well. Was it marijuana, heroin, cocaine, or a prescription drug, legal or illegal? We can go down the list. We heard some evidence about the potential of there being hundreds of drugs. I see this method of evaluation as being a serious flaw.

If the evaluating officer makes a determination, this law would then require the accused person to attend in front of a qualified medical person, either in a clinic or a hospital, where a blood sample would be taken. The legislation then says that the sample could then be admitted in a courtroom to establish the fact that the evaluating officer was correct, that the person had consumed a drug, whatever it was.

Most lawyers who looked at this would ask what good this would do for them when they are in front of a judge and have to prove, beyond a reasonable doubt, that the person was impaired.

Wearing the hat of a prosecutor, I would put this evidence forward and I would expect this question from the judge. Why was I giving this information that the individual had X amount of parts per million of a drug in his or her blood? Would that tell the judge anything about the person's ability to operate a motor vehicle? As I said earlier with regard to the work and the research that has been done with respect to impairment by marijuana, the answer from me as the prosecutor would be no. I could not tell the judge that this gave any indication as to whether the person was impaired. Obviously the judge would have to make an early decision.

Now wearing the hat of defence counsel, I would be telling the judge that the evidence was severely prejudicial to my client because it showed he consumed a drug but that was not what he was charged with. He was charged with impairment. The evidence has no value whatsoever toward establishing his impairment. That is the argument I would make as defence counsel.

In most cases the judge would indicate that the evidence was severely prejudicial because it showed the individual was a drug user, but it had no probative value in the courtroom as to the charge in front of the judge. I fear the case would be turfed based on that. That is not even a charter argument. This is evidentiary rules in our courts. Therefore, it has a fundamental flaw.

There is a charter challenge as well. As a result of the limited qualifications of the evaluating officer, the court may very well determine that a person's personal security was invaded, which is one of our fundamental rights in our country. A determination could be made under this section of the charter that it would not be reasonable to make the person give a blood sample, or in some cases a urine sample, because of the basis on which the demand was made. It was made by the evaluating officer, who was not a medical expert by any means and had a limited ability to make an assessment as to whether the drug was marijuana, heroin, or prescription, which may include a legal prescription, had been ingested by the accused.

During the Liberal government, the NDP supported the bill. It was sent it to committee and it did all the investigation. However, at the end of the day, we had serious concerns about whether this part of the bill would survive that challenge. Because of the risk of whether this will survive those challenges in the courtrooms, it also raises the issue as to whether it is worthwhile expending the kinds of dollars for the training that will be necessary to prepare our police officers for this methodology.

Those are our concerns. We will support the bill, even with regard to this part of it, to go to committee. We hope we perhaps we will find some more evidence now. Maybe the work being done in the Europe is more advanced. The last time we looked at this was about a year and a half ago.

I turn to the second part of the legislation, the more important part in terms of its usefulness in our system and in the courts. Finally, after at least 10 years, getting closer to 20 years, there is a manufactured defence in effect, and my friends in the criminal defence bar will hit me for saying this. Unfortunately our courts, all the way up to the Supreme Court, have accepted this defence I think because of poor wording in the code, and I will give them that much credit, when we first passed this. The key wording is one can establish with evidence to the contrary that in fact the person was not impaired.

When I started to practise law, the Breathalyzer was just beginning to be used. At that point, it was generally accepted that if one could establish the machine was not working properly, as it has to be tested in certain ways before it is actually administered, or that the operator was not qualified or did not use it properly, then those defences could be used to establish that the Breathalyzer evidence was unacceptable and the charge could be avoided.

There is no question that those defences should remain. With any system that involves humans, there will be some flaws in it and we have to allow for those defences.

However, what happened was not those two defences or the defence of when the alcohol was consumed. What cropped up was a whole industry of defence lawyers and toxicologists and we would get this “two beer” defence. We would have this sequence.

This is where the two beers defence arises. For most people the consumption of two beers, within a reasonable timeframe of the test being administered, does not put them over the .08 limit. The accused would take the stand say that he or she had only two beers, or one glass of wine, or one shot. Then a friend or an acquaintance, who was with the individual that evening, would take the stand and confirm that. Then a toxicologist would be brought forward at great expense. These defences cost between $5,000 and $10,000. Unfortunately, a judge would have to say, “As I read this section of the code that's contrary evidence” and person would be acquitted. The number of times that has been used has almost become a scandal.

I believe proposed amendments to the sections in the code will remedy that problem. We will finally get the convictions we are missing now. Those individuals who are driving impaired, sometimes repeatedly will be convicted and penalties will imposed. Hopefully, that will reduce the amount of impaired driving in our country.

We will be supporting this bill, at least on second reading, and hopefully addressing some of the problems that I have mentioned in my remarks today.

[Mark Warawa, Conservative, Parliamentary Secretary to the Minister of the Environment]

Mr. Speaker, we are getting the job done and we are moving forward to action.

I am pleased to speak to Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts. This bill would bring Canada's impaired driving laws into the 21st century and would greatly assist the police in their efforts to investigate impaired driving incidents and the Crown in its prosecution of alleged offenders.

I know that all members recognize that impaired driving remains the single criminal offence that is most likely to result in death or injury of Canadians. If passed, this legislation would make an immeasurable contribution to the safety of all Canadians. Therefore, I trust that all parties will support the legislation and that we can cooperate so that these needed changes can be considered by the standing committee. I can assure all members that the government is open to consideration of all improvements that the committee can suggest, after hearing from stakeholders, to make the bill even more effective in achieving its goals.

The bill has three main components. First, it would give the police the tools they need to investigate drug impaired driving. Second, it would make changes to reflect the great advances that have been made in breathalyzer technology since Parliament first introduced breath testing almost 40 years ago. Third, it would introduce new offences and increase penalties for existing offences.

Many members in this House are familiar with the drug impaired provisions of this bill. They are virtually identical to the provisions of Bill C-16, which was introduced in the last Parliament, reviewed and amended in committee and reported unanimously with amendments by the committee. However, it died on the order paper.

There is no question that police and prosecutors are eagerly awaiting the passage of those changes.

I will confine my remarks to the new provisions of Bill C-32 so that members will understand what motivated the government to bring these amendments forward.

Probably the most important change in the bill is the proposal to ensure that only scientifically valid defences can be used where a person is accused of driving with a concentration of alcohol exceeding 80 milligrams in 100 millilitres of blood, driving 80 over, or .08, as the offence is commonly known.

Parliament first enacted an alcohol driving offence in 1921. Our current Criminal Code section 253(a) offence of driving impaired was enacted in 1951. It has been known for more than 50 years that a person with more than 80 milligrams of alcohol in his or her system is a danger to himself or herself and others on the road. A person with a blood alcohol content, BAC, of 90 milligrams is estimated by the U.S. Department of Transportation to be at least 11 times as likely to be involved in a fatal accident as a sober driver. Above that level, the risk increases exponentially. At a BAC of 125, the person is at least 29 times as likely to be involved in a fatal accident.

While recognizing the risk of collision with escalating blood alcohol concentrations, the problem has always been how to prove the concentration. Determining the BAC can be done by analyzing blood. However, obtaining a blood sample is intrusive and it can take a long time to complete the blood analysis, during which time the accused does not know whether the charge will be laid.

The problems with blood analysis were overcome in the 1950s with the invention of the Borkenstein breathalyzer, which converted alcohol in breath to alcohol in blood in a reliable, scientifically valid process.

Parliament recognized the risk of a blood alcohol concentration that exceeds 80 when in 1969 it passed legislation making it an offence for a person to drive with that much alcohol in his or her system. It is a peculiarity of the law that it can only be proven by making a person provide the evidence that can be used against him or her in court. Accordingly, Parliament made it an offence to refuse to provide a breath sample on an approved instrument.

Advances in technology made it possible to measure BAC at roadside, so Parliament provided for the use of a roadside screening device in 1979. These screeners indicate that a person has failed, but do not give a precise BAC for use in court. They do provide the police with grounds to demand the approved instrument test and the results from the approved instrument are admissible in court. Again, it is an offence not to provide a breath sample on an approved screening device and it is an offence not to provide a breath sample on the approved instrument.

The courts have recognized the unique nature of this law. They have upheld its constitutionality as a reasonable limit on the charter right against unreasonable search and seizure that is justified by the horrendous toll caused by drunk drivers.

In 1979 Parliament had established a two step process for determining whether a driver was over 80 that appears simple: a reasonable suspicion of alcohol in the driver leads to a roadside approved device screening test which, if failed, leads to an approved instrument test which, if over 80, is proven by filing the certificate of the qualified technician in court.

However, impaired driving, and in particular, the over 80 cases, have become among the most complex cases to prove under the Criminal Code. It almost seems that every word and every comma in every section has been litigated.

Anyone who doubts how complicated the law has become only needs to pick up Martin's Annual Criminal Code. The 2007 edition has 12 pages of legislative text and annotations for the 13 sections dealing with murder, manslaughter and infanticide. Martin's has 62 pages of legislative text and annotations for the nine sections dealing with impaired driving.

Section 253(b) over 80 cases take up a grossly disproportionate amount of provincial court time. Often this is the sole charge as there is no evidence of erratic driving and few signs of impairment. If the defence can raise a reasonable doubt as to the blood alcohol content at the time of testing being equal to the BAC at the time of driving, the prosecution will virtually never have other evidence to prove the person was over 80 at the time of driving.

When Parliament first adopted breath testing legislation in 1969, the operator had to perform a series of tests to ensure the approved instrument was calibrated properly and had to read a needle to obtain a reading which was recorded manually. Clearly, there were opportunities for operator error and even an erroneous transcription of the BAC. Therefore, Parliament provided that the BAC reading is, in the absence of evidence to the contrary, deemed to be the BAC at time of driving.

Unfortunately, even for a new generation of approved instruments that give digital readings, have automated internal checks and give a printout of the internal process, the courts have interpreted “evidence to the contrary” to include evidence given by the accused that he only had a small quantity of alcohol to drink, typically the two beer defence. The defence then calls a toxicologist to estimate the defendant's BAC based on the accused's testimony regarding the consumption of alcohol, time elapsed, food consumption, et cetera.

Essentially the accused is saying that regardless of the BAC at the time of testing, his or her BAC while driving could not have been over 80, given the small amount of alcohol consumed. The accused does not have to account for the BAC reading on the approved instrument at the police station. The courts, unless they reject totally the accused's evidence, hold that the presumption that the BAC at testing equals the BAC at the time of driving is defeated. Without this presumption, the prosecution does not have evidence to prove the over 80 offence. The defendant is acquitted for a lack of evidence showing the legal BAC at the time of driving.

The Supreme Court considered evidence to the contrary in Regina v. Boucher in December 2005, where the accused who had blown .092 testified that he only had drunk two large beers. Although the conviction was restored five to four, the decision turned solely on the credibility of the accused and whether the judge had properly considered the evidence as a whole.

The majority found at paragraph 43, “The judge also erred when she stated that the credibility of the accused and his witnesses could be assessed in light of the results of the breathalyzer test before applying the presumption”.

Consequently, the Supreme Court has effectively found that the results of a breath test can be disregarded by a trial judge and an accused found not guilty without any evidence whatsoever that the machine has malfunctioned, at least for the presumption of accuracy for the qualified technician's certificate.

Even if the court is suspicious of the accused's evidence, the presumption is lost because the accused only needs to meet the test of raising any evidence to the contrary. Frankly, I believe the courts have misunderstood what evidence to the contrary is meant to be.

Parliament passed the breathalyzer law in 1969 so that the calculation of the BAC could be done by the approved instrument, which takes the guesswork out of the equation provided the approved instrument is functioning properly, the operator uses it properly and the results are properly recorded.

The court's interpretation may have been justified when the technology was such that operator error could affect it and there would be no direct evidence of this. Therefore, it is very much a defence that reflects the weakness of the technology in use 40 years ago. I do not believe it is Parliament's intention that evidence to the contrary should be simply speculation about what an accused BAC might have been.

Given today's state of technology, evidence to the contrary must be direct evidence that the machine either did not operate properly or was not properly operated. If there is no such evidence, then the BAC produced by the machine must be accepted. The accused may still be acquitted if he or she can show that he or she was under 80 at the time of driving without contradicting the BAC results on the approved instrument at the police station. This could happen, for example, if the person downed several beers and was arrested before the alcohol was absorbed. It could occur that after driving but before being tested the person consumed alcohol and then it was absorbed by the time the approved instrument test was taken.

The fundamental question for Parliament is whether it can trust BAC readings produced by the approved instruments. Fortunately, advances in technology ensure that the accused receives full disclosure of modern approved instrument tests through the printout of the internal operations of the equipment.

In March of last year, the department commissioned a report from Brian Hodgson, a forensic toxicologist and chair of the alcohol test committee of the Canadian Society of Forensic Science on the validity of breath testing. I would be happy to provide a copy of this report to any member who wishes it. I trust that Mr. Hodgson will be called as a witness on the standing committee if we send the bill for review after second reading.

I would like to summarize his paper in this way. He wrote, “The Breathalyzer is entirely manually operated and therefore the reliability is vulnerable to human error. The test results are handwritten by the operator and vulnerable to transcription error. The advanced instruments have pre-programmed functions that minimize human error. For example, when electrical power is first turned on, all instruments must reach a specified operating temperature and the operator can then proceed with the testing of the subject. With the Breathalyzer, this function is the responsibility of the operator. The advanced instruments will not operate until the specified temperature is reached and have pre-programmed safety checks that will signal problems by means of air messages and will abort the testing procedures.

These approved instruments are highly sophisticated and must pass a rigorous evaluation process before the alcohol test committee recommends that they be listed as approved instruments under the Criminal Code for use in the courts. These instruments cannot be bought off the shelf at Wal-Mart. Perhaps the standing committee can arrange to have a demonstration of the older instruments and the new instruments so they can appreciate the differences.

In light of this science and the developments with the approved instruments, it is unfortunate that our courts have failed to reflect, in their jurisprudence, the evolution of the technology. Ignoring the BAC produced by one of the modern approved instruments and substituting for its accurate, scientific analysis of breath alcohol a calculation based on the testimony of the accused is deeply discouraging to the police and the prosecutors who have done everything that Parliament has prescribed.

As far back as 1968, the alcohol test committee expressed concern over the courts accepting testimony that effectively contradicted the approved instrument. In 1999, evidence to the contrary was discussed during the special hearings on the standing committee regarding impaired driving. The committee wrote:

The Committee understands the frustration expressed by justice system personnel over time-consuming defenses that, at least on the surface, may appear frivolous. However, given that the accused would have no effective means of checking the accuracy of a breath analysis machine, the Committee agrees that limiting the interpretation of “evidence to the contrary” in such a manner as recommended could effectively amount to the creation of an absolute liability criminal offence. Such a result would run the risk of interfering with an accused person's rights guaranteed by the Canadian Charter of Rights and Freedoms. In present circumstances, therefore, the Committee does not support amendments to the Criminal Code that would limit the interpretation of “evidence to the contrary”.

Circumstances have changed. We now have modern technology that not only is designed to eliminate operator error but also prints out the results of the internal diagnostic checks that ensure that it is operating accurately. The accused receives a copy of that printout and can make a full answer and defence.

It is just as unacceptable to ignore the approved instrument BAC reading in favour of the testimony of the defendant and his or her friends as it would be for a court to ignore DNA found on the victim which analysis showed came from the accused because he or she and some friends testified that the accused was not at the scene of the crime, with no explanation of how the DNA happened to get there.

As MADD Canada's CEO, Andrew Murie, said in a press release calling for a rapid passage of the bill. He said:

Canada appears to be the only country that throws out the results of the evidentiary breath and blood samples based on the unsubstantiated, self-serving testimony of an accused impaired driver. We are very pleased to see the government limit these challenges.

I believe members will agree that a person who has been drinking is unlikely to have an exact recollection of the amount of alcohol that he or she consumed and it is appropriate that the blood alcohol content of the driver be established by a scientifically validated instrument that gives an exact reading rather than by a calculation based on a shaky foundation.

The amendments that we are proposing abolish the loose, undefined concept of “evidence to the contrary” and lists the actual scientifically valid defences that an accused can bring forward.

We are also reflecting in Bill C-32 the advances in technology by reducing from 15 minutes to 3 minutes the time required between the two required breath tests. The old breathalyzers required at least 10 minutes between tests for the operator to set the instrument back up so it was ready for another test. The new instruments are ready in a matter of minutes and they signal to the operator that they are ready to proceed.

Although there are other technical changes in the bill, I wish to conclude my remarks by discussing the changes in the offences and the new punishments.

The Criminal Code currently provides for higher maximum penalties for impaired driving causing death and impaired driving causing bodily harm. These higher penalties do not apply to refusal and over-80 offences, so unless there is also a conviction for causing bodily harm or death arising from the accident, a lower maximum penalty applies.

While evidence of BAC is not a prerequisite in order to prove the charge of impaired driving causing death or bodily harm, it is admissible in court. There is, therefore, an incentive for the accused to refuse to provide a sample in a case involving injury or death because the maximum penalty for refusal is five years.

Even if it is admitted, the BAC reading is not necessarily sufficient to prove the offender was impaired. The Crown must call a toxicologist to establish what has been known for more than 50 years, namely, that the person who is over 80 is impaired. Virtually all toxicologists agree that at 100 milligrams each person's ability to operate a vehicle is impaired.

We propose to eliminate the incentive to refuse by making a person who is over 80, and is the cause of a collision resulting in death or bodily injury, or who refuses to provide a breath sample knowing of the death or bodily harm, subject to the same penalties as a driver who, while impaired by alcohol or drug, causes death or bodily harm.

As for the penalties of impaired driving where there is no death or injury, the government believes that they do not adequately reflect the seriousness of this offence. We are proposing to raise the minimum fine for the first offence to $1,000. When combined with the prohibitions on driving, provincial licence suspensions and higher insurance costs, this should be enough to convince the people not to commit this offence again.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I am pleased to rise in the House today to speak to Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts.

Sadly, it is quite fitting for me to be discussing impaired driving today. Only a few days ago New Brunswick provincial court judge Sylvio Savoie gave a maximum five year sentence to a dangerous drunk driver who has been a threat in our community for some time. Judge Savoie sentenced this dangerous individual to a maximum punishment, despite the fact that the crown prosecutor asked for a four year sentence, which clearly shows, on this side of the House, that our view to leave discretion with judges often works to the benefit of the community.

Judge Savoie put it in his own words best when he said that it was his duty to see that those people on the highway are protected. That is what we on this side believe about our criminal justice system.

This particular individual could serve as the perfect example for us today in discussing Bill C-32 and criminal legislation in general, in justifying tougher sentences and harsher punishments to put a definite end to impaired driving of any sort.

In fact, this repeat offender served 21 days in 1990 for refusing the breathalyzer, 14 days in 1995 for refusal, 30 days in 1999 for a refusal and 18 months in 2002 for driving over the legal blood alcohol limit. If that was not bad enough, he was given 22 months for impaired driving and driving while prohibited. He returned to court a week later to deal with another outstanding impaired charge and was sentenced to three years.

Last week this five year sentence was added to that list of sentences and to the great benefit of the law-abiding citizens to whom this person represented a severe threat.

It is important to note that this sentence was handed out under existing Criminal Code provisions, the bulk of which have been enacted under Liberal governments. Let us face it, impaired driving is not acceptable. It is a dangerous criminal behaviour that sadly kills too many Canadian citizens every year, lives that could be easily spared.

Quite frankly, I hope one day that impaired driving will be a thing of the past and we simply will not have to deal with bills such as Bill C-32 because all Canadians will know it is not acceptable to drink and drive.

For now, though, we still have a lot of work to do in our society and as legislators in this Parliament to get there. Bill C-32 is a start. It proposes to help curb the problem of impaired driving.

This is not the first time, however, that the House has dealt with impaired driving legislation. In recent years the House of Commons has been in fact quite active. In 1999 a House of Commons Standing Committee on Justice and Human Rights released a report entitled “Toward Eliminating Impaired Driving” which recognized the need to develop better ways to detect impaired driving, especially impaired driving related to drugs.

A Senate Special Committee on Illegal Drugs also published a report called “Cannabis: Our Position for a Canadian Public Policy”. Once again, the committee noted that there is no reliable, non-intrusive roadside test for drugs.

In 2003, the Department of Justice also released a report entitled “Drug-Impaired Driving: Consultation Document”. Again, conclusions mentioned how drivers do not routinely submit to drug tests and how few measures the police had at their disposal to test drivers for alleged influence of drugs.

This is why in 2004 the previous Liberal government introduced a bill to establish a new national strategy to deal with impaired driving. Unfortunately, this legislation died on the order paper when an election was called. As soon as Parliament was back at work after the 2004 election, the re-elected Liberal government reintroduced legislation to deal with impaired driving and that was known as Bill C-16. It is very unfortunate that this piece of legislation also died on the order paper when the 2006 election was called.

Here we are today with the current Bill C-32 legislation, highly inspired I suggest by the very progressive Liberal justice agenda of previous governments.

Let us look at the bill in its pith and substance. Bill C-32 does a number of things. It provides tools to detect drug-impaired drivers and creates the offence of driving while in possession of illicit drugs. This would be routinely known by those of us who have dabbled in law and know that with respect to alcohol-related offences, it is also, under many provincial statutes, illegal to have possession of alcohol in the vehicle, which is a precursor to preventing the improper imbibing of alcohol while driving or being under the influence of alcohol while driving. This is a mere extension of that with respect to drugs.

It would restrict the evidence to the contrary rule, which I will delve into subsequently. It will also create the offence of being over .08, causing death or bodily harm, which goes of course to the alcohol side of impairment. It would increase penalties for impaired drivers and for driving while disqualified under provincial statutes or otherwise. It would, finally, assist the police in investigating alcohol-related crashes.

Bill C-32 provides for several means of determining whether a driver is impaired by drugs including standard sobriety tests, training experts to recognize drivers impaired by drugs, taking samples of bodily fluids, and creating an offence for refusing to comply.

In addition, Bill C-32 will establish a new hybrid offence punishable by a maximum of five years imprisonment and prohibition on driving.

The bill will also limit the use of “evidence to the contrary”, better known as the “two-beer” defence, while retaining valid defences.

The elimination of the two beer defence is an interesting point brought forward by this law. Forty years ago, breathalyzers and other machines used to calculate blood alcohol levels were prone to errors depending on operator experience, various circumstances and external factors. Frankly, technology has come a long way.

Therefore, it was possible in the past that individuals were wrongfully accused and sometimes wrongfully convicted after roadside tests and station-administered tests. They were wrongfully accused and convicted of offences relative to the .08 limitation.

However, today increasingly accurate technological advances have ensured that such malfunctions with detection devices are almost impossible. Each machine prints out internal checks before each test. Operators are better educated. In short, we have the science now.

There are very few cases where the calibration of the machine is in error or where the operator did not have specific knowledge of how to administer the impairment test. Consequently, there are very few cases, I am very confident in saying, where the accused are wrongfully accused or convicted of driving over the legal limit of .08 on the alcohol side.

We have made progress. Just as there are very few, if none I might say, wrongful accusations for convictions, I would also say on the other hand that there are more convictions, making our roads safer places. It is safe to say that in the mores of society, drug impaired driving has not caught up to and maintained the same level of vigilance in detection that alcohol impaired driving has.

Let me for a moment compare the technical aspects of evidence gathering with respect to crime. By doing so I hope to illustrate that we are a long way from being precise on drug impaired driving. We have made great achievements with respect to alcohol impaired driving, and on all other aspects of criminal justice we have made great progress because of science.

Let me compare our state of affairs with respect to impaired driving with the introduction of DNA evidence in the criminal justice system as a whole. With all the technology police and law enforcement officials have at their disposition today, would we ever consider debating a DNA match in court by presenting a few friends who could testify in favour of an accused who was faced with a positive DNA match? I doubt very much that any judge in this country would find the testimony of a few friends of the accused as a valid basis for rejecting accurate, scientifically precise DNA matches.

Oddly enough, on the impaired driving side, if a few drinking buddies are willing to testify that the accused only had a beer or two, a court can today reject the results of highly reliable, technologically advanced, precise instruments that otherwise perhaps would have not been available in the past.

This is how this amendment, building on Liberal traditions, is keeping up with technological advances. It is important to support our police officers, those on the front line who administer such tests, and give them the faith that we should have in the laws as they administer the tests and bring about proper convictions.

In December 2005 the Supreme Court of Canada considered the evidence to the contrary, the two beer defence, and found that the results of a breath test can be disregarded, could be disregarded, without any evidence of machine malfunction if the accused meets the test of raising a doubt, raising evidence to the contrary.

Bill C-32 establishes new offences, namely impaired driving causing bodily harm, punishable by imprisonment for a term of not more than ten years, or causing death, punishable by life imprisonment. A new offence for refusing to provide a breath sample, in cases of bodily injury or death, will carry the same sentences.

In addition, penalties for impaired driving will be higher. For a first offence, the fine increases from $600 to $1,000; for a second offence, sentencing increases from 14 days to 30 days; for a third offence, sentencing increases from 90 days to 120 days and a maximum of 18 months on summary conviction. Naturally, individuals found guilty of impaired driving will also lose their licence.

Bill C-32 also provides tools to assist the police by enabling them to test drivers within three hours of a collision. It also allows them to reduce the current time between breath tests to three minutes and also to extend the driver's seat presumption for refusal cases.

Let us be clear. As parliamentarians representing all regions of this country, as legislators, we have a special task, but we are all also somebody's son, husband or wife, somebody's father or mother, grandfather or grandmother, and we see, as law-abiding citizens, aside from our role as parliamentarians, the carnage of impaired driving in our society. We react not just as parliamentarians, but as parents, as children, as friends of people who have been hurt by the ravages of impaired driving, whether alcohol or drug. In short, drunk drivers are dangerous not only to themselves but to the whole of society.

That is why Bill C-32, while a good attempt, must be a good law. It must be efficacious. In its current form, it does not address many of the points raised in the multitude of committee and justice department reports that I referred to in the first part of my address.

It is crucial that this law be built on a solid foundation and take the findings of the reports, the commissioned studies and the justice department opinions and effect a very solid law, as we have seen with technological advances on the alcohol side, a law, as administered, that results in convictions, will provide deterrents and also does not lead to wrongful accusations or convictions. But primarily, the law must work.

Bill C-32 raises a number of questions which I as a member of the justice committee will be most eager to delve into so that we can perfect it and hopefully bring it back to the House as a efficacious law. These questions, and they must be raised, are as follows. They relate to how to test drivers on roadsides for drug impaired driving.

The amendments with respect to the alcohol side are terrific amendments and will act as further deterrents and better help on detection with respect to alcohol impaired driving. With respect to drug impaired driving, there are currently no reliable tests. I would quote the Parliamentary Secretary to the Minister of Justice and Attorney General of Canada when he said in the House last week that “we do not have the equipment in place that can provide a roadside test for all drugs in the same way that we have with roadside breathalyzer tests” for alcohol detection.

And never a truer word was spoken by a member of the Conservative Party, a Conservative parliamentarian and member of the cabinet by virtue of being a parliamentary secretary. I want to give compliments where are compliments are due. I am certainly open to complimenting my friends on the Conservative side when they speak the truth and are 100% accurate, but 100% accuracy is really the standard which we are trying to achieve, with respect, as parliamentarians in Bill C-32, and the law as drafted cannot be said to achieve that on the drug impaired aspect.

There is another question related to the proposed legislation. I will be happy to study this and help this through committee. What drugs would the police be testing for? All drugs? Certain drugs? This certainly raises many questions. It has been scientifically demonstrated that cannabis can leave traces in the body for weeks after the physical and mental impairment effects have dissipated. How would the new drug recognition experts panel react to this?

How are we going to deal with the multitude of drugs, perhaps not even listed in the Criminal Code, if they cause impairment? What about prescription drugs? Although acquired legally through a doctor's prescription, many medications have warnings on them. Many people are irresponsible in taking one or several medications without reading the warnings. They put themselves in a position to harm others. They put themselves in a position to be impaired and not capable of driving safely. How does this bill deal with that aspect? How would the new drug recognition experts deal with this?

We live in a country where winter, certainly just lately but before that perhaps not, is very harsh and is synonymous with cold and flu season. That can last up to five or six months. What about the millions of Canadians who take flu and cold medications? For many of those medications, we are told not to drive or operate heavy machinery while taking them. This is a problem that Bill C-32 does not specifically address. I do not think we can leave it to the regulations to detect. This certainly must be canvassed through the best of expert testimony at the committee level.

The standardized field sobriety tests and the pooling together of the experts is an excellent idea, but we have to ask where they would be. Would they be available to every region of Canada? It is a high level of expertise. Will it apply in rural parts of Canada, like the riding of Tobique—Mactaquac, for instance? Certainly in the grand city of Moncton we would get those experts.

Furthermore, the only reliable test for drug impaired driving is a blood sample or a urine or saliva test and many of these might not stand a charter challenge, unfortunately.

In short and in conclusion, Liberals support this bill. We support it going to committee. We support the work of Mothers Against Drunk Driving. We support local operations such as Opération Nez rouge. We want our streets and roadways to be safe. In doing so, we support the bill. We have many questions and we hope those questions will be answered at committee. We hope the House will support the questions and give the committee enough resources and time to proffer the proper evidence and come back with a bill that will protect Canadians.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I would like to say that this is the first time that I stand in this House as the opposition justice critic and I am very pleased to do so.

It gives me great pleasure to speak to Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts.

As I just said in French, this is my first speech as the official opposition's justice critic. I look forward to working with my colleagues, be they in my party or in other parties, to provide intelligent, smart solutions to all justice issues that come before this House.

In considering Bill C-32, we must look at its history in order to understand it. The history of Bill C-32 goes back quite a few years, in fact to May 1999 when the House of Commons Standing Committee on Justice and Human Rights released a report entitled “Toward Eliminating Impaired Driving”.

The committee then recognized that drugs were a contributing factor to some fatal motor vehicle accidents. It also emphasized the need to develop better measures to detect drug impaired driving and to obtain the proper evidence allowing for the successful prosecution of individuals who drove while under the influence of drugs.

A further study on this issue was the Senate special committee on illegal drugs report entitled “Cannabis: Our Position for a Canadian Public Policy”. One of its important findings was that there was no reliable, non-intrusive, rapid roadside test for drugs. In the case of cannabis, the best way to test is through blood samples. This then obviously represents a challenge that needs to be met in order to address the problem of drug impaired driving.

In response to the 1999 report, the Department of Justice and its working group on impaired driving consulted extensively with the provinces and territories. The results of these consultations was the October 2003 release of the report entitled “Drug-Impaired Driving: Consultation Document”. This document pointed out that many drug impaired drivers were not voluntarily participating in testing. It does stress the need to develop measures that would allow police to demand that drivers suspected of being impaired by drug use would submit to testing.

The report highlighted two options. The first option was to set a legal limit on the presence of drugs on the body. The second option was to propose legislation that would improve the ability of our law enforcement, our police officers, to demand drug tests. A certified officer could demand a physical sobriety test or take a saliva or sweat sample at the roadside based on the reasonable suspicion of drug impairment. Failure on such a test would then represent reasonable grounds to conduct a more detailed evaluation and, obviously, more intrusive evaluation at a police station. The bill that is before us, Bill C-32, follows in the steps of this second option.

The House of Commons special committee report on the non-medical use of drugs released in the fall of 2003 called for Parliament to develop a strategy addressing the question of drug impaired driving. In April 2004, our then Liberal government, and it is quite coincidental I am sure that the present government bill carries the same number, reintroduced Bill C-32. That bill would have dealt with the drug impaired driving in the fashion described above. Unfortunately, the bill died on the order paper in May 2004 when an election was called.

The Liberals were re-elected, albeit as a minority government, and in November 2004 reintroduced that same bill but as Bill C-16, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts. That bill made its way to committee and was reported back to the House with some amendments. Unfortunately, that piece of legislation also died on the order paper when the election was called in November 2005.

Thus, the current minority Conservative government's Bill C-32 has followed in the footsteps taken by the previous Liberal government. The Conservatives, however, have chosen to reintroduce it with a few changes, namely, by incorporating stronger penalties than the Liberals' two previous bills had envisioned.

On the same topic, I noted that Canadian Press reported on the introduction of Bill C-2 with the following words. I am quoting from the November 22 wire which reads:

The federal Conservatives have brought in legislation to crack down on drug-impaired drivers--by resurrecting a plan first advanced by the Liberals, adding heavier fines and jail terms, and calling the result a Tory initiative.

I think that this description is accurate, and I can only commend the Tories for recognizing a great idea even when it was developed and first presented by another party, the Liberal Party when it was the government.

Now that we have discussed the background for the bill before us, we must examine the amendments it will make to the Criminal Code. The summary for Bill C-32 reads as follows:

This enactment amends the Criminal Code

(a) to create an offence of operating a motor vehicle while in possession of a controlled substance as defined in subsection 2(1) of the Controlled Drugs and Substances Act;

(b) to authorize specially trained peace officers to conduct tests to determine whether a person is impaired by a drug or a combination of alcohol and a drug;

(c) to authorize the taking of bodily fluids to test for the presence of alcohol or a drug;

(d) to create an offence of operating a motor vehicle with a concentration of alcohol in the blood that exceeds 80 mg of alcohol in 100 mL of blood and causing bodily harm or death to another person;

(e) to clarify what evidence a person accused of driving with a concentration of alcohol in the blood that exceeds 80 mg of alcohol in 100 mL of blood can introduce to raise a doubt that they were not committing the offence;

(f) to create an offence of refusing to provide a breath sample when the accused knows or ought to know that the accused’s operation of a motor vehicle caused an accident resulting in bodily harm to another person or death; and

(g) to increase the penalties for impaired driving.

The enactment also makes consequential amendments to other Acts.

As the Liberal justice critic, I want to say that my party takes very seriously problems of impaired driving caused by alcohol and/or other drugs. In my opinion, the proof of this is that, when we formed the government, we twice introduced a bill amending the Criminal Code to deal with this problem.

I believe the proof is there. We take this issue very seriously and we also take very seriously measures that are smart and effective and that have a good chance and even an excellent chance of achieving the intended objectives. Moreover, we support initiatives to provide services responsible for maintaining public order with concrete and effective tools to implement legislation aimed at cracking down on impaired driving caused by alcohol or other drugs.

We are therefore prepared to support Bill C-32 so that it can make its way to the Standing Committee on Justice and Human Rights. The committee could examine the bill in greater detail and summon witnesses and experts to give their own particular perspective. In addition, the committee could propose any amendments it deems necessary. However, I would like to say that we still have reservations about some aspects of this bill. We hope that the government will work constructively with all the opposition parties to address these reservations and that the most useful and most effective legislation will be adopted.

What concerns or reservations do we have about this bill?

Some hon. members have already voiced them.

The Canada Safety Council has already voiced some objections to roadside drug testing. It asks which type of drugs police would test for. Would it simply be illicit, illegal drugs, or would it also be drugs that are legal, in the sense that they are prescription drugs. The person could be in legal possession of those prescription drugs, but the effects of those drugs may cause impairment and it is clearly indicated, for instance, as part of the protocol for taking that drug.

How many of us have not come down with a bad cold or a bad infection, have been prescribed medication by our doctor and when we receive it at the pharmacy it clearly says on the label not to operate machinery or a moving vehicle while taking that medication.

The Canada Safety Council has concerns about what are the drugs that are going to be tested for and whether there will be the possibility of distinguishing between prescription drugs and illegal drugs. As well, how would we deal with the fact that there are certain drugs, like marijuana, which may linger in the body well after the initial high is over and well after the effects of impairment of one's abilities have completely dissipated but traces of the drug still remain?

The Canada Safety Council is asking these questions. How is this bill going to deal with these issues? These are questions that hopefully will be answered if this bill goes to committee.

As I said, as the Liberal critic I will be recommending to my colleagues to vote in favour to send it on to committee so that we can attempt to get answers to these questions and, if it is possible, to amend the bill. If we are given solid answers by experts who say that yes, we could do that and we could amend the legislation in such a way to ensure that it happened, then we would hope that we would get government cooperation in order to do so.

I had another question which was not answered by the parliamentary secretary during questions and comments. I asked whether or not studies had been done to determine in what percentage of cases where there has been death or injury caused by a motor vehicle and there is evidence of impairment--and let us just consider alcohol impairment--the Crown actually brought forth manslaughter charges, which includes the section of the Criminal Code that exists right now that deals with manslaughter and also includes death and injury caused by a vehicle, including impaired driving and provides for a maximum sentence of life.

I would like to know what scientific studies have been done to determine why it is that those provisions have not been used obviously sufficiently from what the parliamentary secretary said. He talked about people who are impaired causing carnage with their vehicles et cetera and that they are getting away with it because they are refusing to take the testing. Where are the problems? We have provisions right now but they appear not to be used. Why is that? What is the evidence that would show why they are not being used?

Finally, we know the government has announced that it will be placing $2 million to the benefit of our law enforcement in order to get the training and to do these roadside sobriety tests. How much money, if any, is the government planning to use to do a public education campaign?

History has shown that Canada-wide public education campaigns about impaired driving have been very well received by the public.

That is why today people have a designated driver when they spend an evening with friends or go to a party in a hall or restaurant where alcohol is served. Today, the vast majority of people resign themselves to drinking nothing. But if they do decide to drink, they have a designated driver.

Does the government plan to put money and people behind the idea of an education campaign on driving while under the influence not only of alcohol, but also drugs, for example? I would like to know. Perhaps the answers will come out during the committee hearings, if the House decides to refer this bill to committee.

Thank you very much, Mr. Speaker, and thank you to my colleagues in this House who are taking part in this debate. As I have already said, I recommend that my colleagues from all parties refer this bill to committee so that we can try to answer these questions and, if necessary, improve the bill.

[Rob Moore, Conservative, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am pleased to rise today to speak to Bill C-32, an act to amend the Criminal Code and to make consequential amendments to other acts.

The bill would help bring Canada's impaired driving laws into the 21st century and would greatly assist the police in their efforts to investigate impaired driving incidents and the Crown in its prosecutions of alleged offenders.

I know all members recognize that impaired driving remains the single criminal offence that is most likely to result in the death or injury of Canadians. If passed, this legislation will make an immeasurable contribution to the safety of all Canadians. Therefore, I trust that all parties will support the legislation and that we can cooperate so that these needed changes can be considered by the standing committee expeditiously.

I can assure all members that the government is open to consideration of any improvements that the committee can suggest, after hearing from stakeholders, to make the bill even more effective in achieving its goals.

The bill has three main components.

First, it would give police officers the tools they need to investigate drug impaired driving.

Second, it would make changes that reflect the great advances made in breathalyzer technology since Parliament first introduced breath testing almost 40 years ago.

Third, it would introduce new offences and increase penalties for existing offences.

Many members of the House are familiar with the drug impaired provisions of the bill. They are virtually identical to the provisions of Bill C-16, which was introduced in an earlier Parliament. That bill was reviewed and amended in committee and reported unanimously with amendments by the committee. However, it died on the order paper.

There is no question that police and prosecutors are eagerly awaiting the passage of those changes.

I will therefore confine my remarks to the new provisions in Bill C-32 so that members will understand what motivated the government to bring these amendments forward.

Probably the most important change in this bill is the proposal to ensure that only scientifically valid defences can be used where a person is accused of driving with a concentration of alcohol exceeding 80 milligrams in 100 millilitres of blood. This is known as driving over 80.

Parliament first enacted an alcohol driving offence in 1921. Our current Criminal Code, section 253, subsection (a), offence of impaired driving, was enacted in 1951. It has been known for more than 50 years that a person with more than 80 milligrams of alcohol in their system is a danger to himself or herself and also to other users of the road.

A person with a blood alcohol concentration of 90 is estimated by the U.S. Department of Transportation to be at least 11 times as likely to be involved in a fatal accident as a sober driver. Above that level, the risk increases exponentially. At a blood alcohol level of 125, for example, a person is at least 29 times as likely to be involved in a fatal collision.

While recognizing the risk of collisions with escalating blood alcohol concentrations, the problem has always been how to prove the concentration. Determining BAC can be done by analyzing blood. However, obtaining a blood sample is often seen as intrusive and it can take a long time to complete the blood analysis, during which time the accused does not know whether a charge will be laid.

The problems with blood analysis were overcome in the 1950s with the invention of Borkenstein Breathalyzer, which converted alcohol in breath to alcohol in blood in a reliable, scientifically valid process.

Parliament recognized the risk of blood alcohol concentration that exceeded 80 when it passed, in 1969, legislation making it an offence to drive with that much alcohol or more in a person's system. It is a peculiarity of the law that it can only be proven by making the person provide the evidence that can be used against him or her in court. Accordingly Parliament made it an offence to refuse to provide the breath sample on an improved instrument.

Advances in technology made it possible to measure the BAC at roadside, so Parliament provided for the use of a roadside screening device in 1979. These screeners indicate that a person has failed but do not give a precise BAC for use in court. They do provide the police with grounds to demand the approved instrument test. The results from the approved instrument are admissible in court.

Again, it is an offence not to provide the breath sample on an approved screening device and it is an offence not to provide the breath sample on an approved instrument. The courts have recognized the unique nature of this law and they have upheld its constitutionality as a reasonable limit on the charter right against unreasonable search and seizure, a limit that is justified by the horrendous toll caused by drunk drivers.

Therefore, by 1979 Parliament had established a two-step process for determining whether a driver was over 80. It appears simple. A reasonable suspicion of alcohol in the driver leads to a roadside approved device screening test which, if failed, leads to an approved instrument test, in which over 80 is proven by filing the certificate of the qualified technician in court.

However, as all members are likely aware, impaired driving, and in particular over-80 cases, have become among the most complex cases to prove under the Criminal Code. It seems that every word and every comma in every section has been litigated. Anyone who doubts how complicated the law has become need only pick up Martin's Annual Criminal Code. The 2007 edition has 12 pages of legislative text and annotations for the 13 sections dealing with murder, manslaughter and infanticide. Martin's has 62 pages of legislated text and annotations for the nine sections dealing with impaired driving.

Subsection 253(b) over-80 cases take up a grossly disproportionate amount of provincial court trial time. Often this is the sole charge, as there is no evidence of erratic driving and there are few signs of impairment. If the defence can raise a reasonable doubt as to the BAC at the time of testing being equal to the BAC at the time of driving, the prosecution will virtually never have other evidence to prove that the person was over 80 at the time of driving.

When Parliament first adopted breath testing legislation in 1969, the operator had to perform a series of tests to ensure the approved instrument was calibrated properly and had to read a needle to obtain a reading, which was recorded manually. Clearly, there were opportunities for operator error and even erroneous transcription of the BAC.

Therefore, Parliament provided that the BAC reading is, in the absence of evidence to the contrary, deemed to be the BAC at the time of driving. Unfortunately, even for a new generation of approved instruments that give digital readings, have automated internal checks and give a printout of the internal process, the courts have interpreted evidence to the contrary to include evidence given by the accused that he only had a small quantity of alcohol to drink, typically “two beer”. This has become known as the two-beer defence.

The defence then calls a toxicologist to estimate the defendant's BAC based on the accused's testimony regarding consumption of alcohol, time elapsed, food consumption, et cetera. Essentially, the accused is saying that regardless of the BAC at the time of testing, his or her BAC while driving could not have been over 80 given the small amount of alcohol consumed.

The accused does not have to account for the BAC reading on the approved instrument at the police station. The courts, unless they reject totally the accused's evidence, hold that the presumption that the BAC at testing equals the BAC at the time of driving is defeated. Without this presumption, the prosecution does not have evidence to prove the over-80 offence. The defendant is acquitted for a lack of evidence showing the illegal BAC at the time of driving.

The Supreme Court considered evidence to the contrary in December 2005, where the accused, who had blown .092, testified that he had only two large beer. Although the conviction was restored, the decision turned solely on the credibility of the accused and whether the judge had properly considered the evidence as a whole.

The majority found, at paragraph 43, that:

The judge also erred when she stated that the credibility of the accused and his witnesses could be assessed in light of the results of the breathalyzer tests before applying the presumption.

Consequently, the Supreme Court has effectively found that the results of a breath test can be disregarded by the trial judge and the accused found not guilty without any evidence whatsoever that the machine has malfunctioned, at least for the “presumption of accuracy for the qualified technician's certificate”. Even if the court is suspicious of the accused's evidence, the presumption is lost because the accused only has to meet the test of raising any evidence to the contrary.

Frankly, this may be a misunderstanding of what “evidence to the contrary” was intended by Parliament to be. Parliament passed the breathalyzer law in 1969, so the calculation of BAC would be done by the approved instrument, which takes the guesswork out of the equation provided the approved instrument is functioning properly, the operator uses it properly and the results are properly recorded.

The court's interpretation may have been justified when the technology was such that operator error could affect it and there would be no direct evidence of this. Therefore, it is very much a defence that reflects the weaknesses of technology in use some 40 years ago. It was not, I believe, Parliament's intention that evidence to the contrary should be simply speculation about what an accused BAC might have been.

Given today's state of technology, evidence to the contrary must be direct evidence that the machine either did not operate properly or was not operated properly. If there is no such evidence, then the BAC produced by the machine should be accepted.

The accused may still be acquitted if he or she can show that they could have been under 80 at the time driving without contradicting the BAC results on the approved instrument at the police station. This could happen if, for example, the person downed several drinks and was arrested before the alcohol was absorbed. It could also occur that after driving, but before testing, the person consumed alcohol and it was absorbed by the time the approved instrument test was taken.

The fundamental question for Parliament is whether it can trust the BAC readings produced by the approved instruments. Fortunately, advances in technology ensure that the accused receives full disclosure of more modern approved evidence tests through the printout of the internal operations of the equipment.

In March of last year, the justice department commissioned from Mr. Brian Hodgson, a forensic toxicologist and the chair of the alcohol test committee of the Canadian Society of Forensic Science, a report on the validity of breath testing. I will be happy to provide a copy of this report to any member who wishes it. I trust that Mr. Hodgson will be called as a witness by the standing committee if we send the bill for review after second reading.

Let me summarize his paper this way. He wrote that the Breathalyzer is entirely manually operated and therefore the reliability is vulnerable to human error. The test results are handwritten by the operator and vulnerable to transcription error. The advanced instruments have preprogrammed functions that minimize human operator error. He continued, saying that, for example, when electrical power is first turned on, all instruments must reach a specified operating temperature and the operator can then proceed with the testing of the subject. With the Breathalyzer, this function is the responsibility of the operator. The advanced instruments will not operate until the specified temperature is reached and have preprogrammed safety checks that will signal problems by means of error messages and will abort the testing procedure.

These approved instruments are highly sophisticated and have to pass a rigorous evaluation process before the alcohol test committee recommends that they be listed as approved instruments under the Criminal Code for use in the courts. One does not buy these instruments off the shelf at Wal-Mart. Perhaps the standing committee can arrange to have a demonstration of the older instruments and the new instruments so they will be better able to appreciate the differences.

In light of this science and the developments with the approved instruments, it is unfortunate that our courts have failed to reflect in their jurisprudence the evolution of the technology. Ignoring the BAC produced by one of the modern approved instruments and substituting for its accurate, scientific analysis of breath alcohol a calculation based on the testimony of the accused is deeply discouraging to the police and prosecutors, who have done everything that Parliament has prescribed.

As far back as 1986, the alcohol test committee expressed concern over the courts accepting testimony that effectively contradicted the approved instrument. In 1999, evidence to the contrary was discussed during the special hearings of the standing committee regarding impaired driving.

The committee wrote:

The Committee understands the frustration expressed by justice system personnel over time-consuming defenses that, at least on the surface, may appear frivolous. However, given that the accused would have no effective means of checking the accuracy of a breath analysis machine, the Committee agrees that limiting the interpretation of “evidence to the contrary” in such a manner as recommended could effectively amount to the creation of an absolute liability criminal offence. Such a result would run the risk of interfering with an accused person's rights guaranteed by the Canadian Charter of Rights and Freedoms. In present circumstances, therefore, the Committee does not support amendments to the Criminal Code that would limit the interpretation of “evidence to the contrary”.

Circumstances certainly have changed. We now have modern technology that not only is designed to eliminate operator error but also prints out the results of its internal diagnostic checks that ensure it is operating accurately. The accused receives a copy of that printout and can make full answer in defence.

It is just as unacceptable to ignore the approved instrument BAC reading in favour of the testimony of the defendant and his or her friends as it would be for a court to ignore DNA found on the victim that analysis shows comes from the accused because he or she and a few friends testified that the accused was not at the scene of the crime, with no explanation as to how the DNA happened to be there.

As MADD Canada's CEO Andrew Murie said in a press release calling for rapid passage of this bill:

Canada appears to be the only country that throws out the results of the evidentiary breath and blood samples based on the unsubstantiated, self-serving testimony of an accused impaired driver. We are very pleased to see the government limit these challenges.

I believe members will agree that a person who has been drinking is unlikely to have an exact recollection of the amount of alcohol he or she consumed and it is appropriate that the blood alcohol content of the driver be established by a scientifically validated instrument that gives an exact reading rather than by a calculation based on such a shaky foundation.

The amendments that we are proposing abolish the loose, undefined concept of “evidence to the contrary” and list the actual scientifically valid offences that an accused can bring forward.

We are also reflecting in Bill C-32 the advances in technology by reducing from 15 minutes to three minutes the time required between the two required breath tests. The old breathalyzers required at least 10 minutes between tests for the operator to set the instrument back up so that it was ready for another test. The new instruments are ready in a matter of minutes and they signal to the operator that they are ready to proceed.

Although there are other technical changes in the bill, I wish to conclude my remarks by discussing the changes in the offences and the new punishments.

The Criminal Code currently provides for higher maximum penalties for impaired driving causing death and impaired driving causing bodily harm. These higher penalties do not apply to refusal in over-80 offences, so unless there is also a conviction for causing bodily harm or death arising from the incident, a lower maximum penalty applies.

While evidence of BAC is not a prerequisite in order to prove the charge of impaired driving causing death or bodily harm, it is admissible in court. There is, therefore, an incentive for the accused to refuse to provide a sample in a case involving injury or death, because the maximum penalty for a refusal is five years.

Even if it is admitted, the BAC reading is not necessarily sufficient to prove the offender was impaired. The Crown has to call a toxicologist to establish, as I have said, what has been known for more than 50 years, namely, that a person who is over 80 is impaired. Virtually all toxicologists agree that at 100 milligrams each person's ability to operate a vehicle is impaired.

We propose to eliminate this incentive to refuse by making a person who is over 80 and is the cause of a collision resulting in death or bodily harm, or who refuses to provide a breath sample knowing of the death or bodily harm, subject to the same penalties as the driver who, while impaired by alcohol or a drug, caused a death or bodily harm.

As for the penalties for impaired driving where there is no death or injury, the government believes they do not adequately reflect the seriousness of this offence. We are proposing to raise the minimum fine for a first offence to $1,000. When combined with the prohibitions on driving, provincial licence suspensions and higher insurance costs, this should be enough to convince the person not to commit the offence again.

However, for those who do commit another offence, we propose that they be subject to imprisonment for a minimum 30 days on a second offence instead of the current 14 days. For a third offence, we propose 120 days rather than the current 90 days' imprisonment.

I am indeed pleased to recommend to the House that it give second reading to Bill C-32. I urge all members to support it.

Committees of the House

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, I have the honour to present, in both official languages, the 16th report of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

In accordance with its order of reference of Monday, November 15, 2004, your committee has considered Bill C-16, An Act to Amend the Criminal Code (impaired driving) and agreed on Thursday, November 3, 2005 to report it with amendments.

Privilege

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Mr. Speaker, it was interesting to hear my colleague from the NDP say that his party was not entering into an alliance, an unholy alliance, with the Conservative ideologues and the Quebec separatists. So I am just curious what in fact this is. Is this a political ménage à trois? It is a pretty scary thought.

More interesting, the member mentioned that in the spring they were not allying with the Liberals, but in fact were helping to govern to ensure that very important legislation would get passed. We have some 30-odd bills on the order paper that, if there is a non-confidence motion, will not get passed. Following that logic, I would assume the NDP is now saying that these are not important bills for the people of Canada.

What sort of bills are these? There is Bill C-66, the energy relief bill, which would provide relief in January for people on fixed incomes, our seniors and families on low incomes. It would fall to the side. Does his party not feel that is important legislation? There is Bill C-69, the agricultural marketing programs act bill; or Bill C-64, the vehicle identification bill or, as some would call it, the Chuck Cadman bill. It would unfortunately fall by the wayside. There is Bill C-16, the impaired driving bill and Bill C-54, the oil and gas exploration bill. I am sure that the members opposite from Alberta will be happy to see that one fall by the wayside. There is Bill C-11, the whistleblower protection bill, and Bill S-39, the sex offender database bill. Which of these bills does the member feel is not important enough to be passed?

Committees of the House

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, I have the honour to present, in both official languages, the 12th report of the Standing Committee on Citizenship and Immigration and citizenship issues entitled, “Updating Canada's Citizenship Laws: It's Time”.

In tabling this document, the committee calls on the government to fulfill its commitment in the throne speech to present the House with a citizenship act. We have had three previous attempts at reforming the citizenship laws since 1997 which were Bill C-63, Bill C-16 and Bill C-18.

In concluding, citizenship is the most sacred covenant between the citizen and the state and it is time we had citizenship laws that reflect that reality.