Evidence of meeting #76 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was impaired.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Brian Hodgson  Chair, Alcohol Test Committee, Canadian Society of Forensic Science
  • Shirley Treacy  Chair, Drugs and Driving Committee, Canadian Society of Forensic Science
  • Douglas Beirness  Manager, Research and Policy, Canadian Centre on Substance Abuse
  • Tamra Thomson  Director, Legislation and Law Reform, Canadian Bar Association
  • Mitchell MacLeod  Executive Member, National Criminal Justice Section, Canadian Bar Association
  • Louise Dehaut  member, Alcohol Test Committee, Canadian Society of Forensic Science
  • Jacques Lecavalier  Associate, Research and Policy, Canadian Centre on Substance Abuse

10:45 a.m.

Chair, Drugs and Driving Committee, Canadian Society of Forensic Science

Shirley Treacy

That's true, yes. The drugs can be prescription or non-prescription drugs—things you buy in a pharmacy without a prescription, like Gravol—as well as illicit drugs. They can all affect your ability to drive.

10:45 a.m.

Conservative

Rick Norlock Northumberland—Quinte West, ON

The current law says you can be impaired by alcohol or by a drug or by a combination thereof.

10:45 a.m.

Chair, Drugs and Driving Committee, Canadian Society of Forensic Science

Shirley Treacy

Yes, because in our context, alcohol is a drug. So it is alcohol and drugs or one or more drugs.

10:45 a.m.

Conservative

Rick Norlock Northumberland—Quinte West, ON

The problem we're dealing with here as legislators—if I'm wrong, tell me—is that we've already said in law how much of one substance you can have to be automatically creating an offence. But—and am I right here now?—the problem we have with this current legislation, in some people's eyes, is that there is no scientific, toxicological or perhaps—I'm pretty sure I'm wrong as far as behavioural goes, but I stand to be corrected. The problem is we don't have any quantum measurements. In other words, after taking x amount of whatever, TLC or TCP, or whatever it is in marijuana or other drugs, at what stage are you impaired?

10:50 a.m.

Chair, Drugs and Driving Committee, Canadian Society of Forensic Science

Shirley Treacy

You're asking me if there's a certain concentration at which a drug will cause impairment. Is that correct?

10:50 a.m.

Conservative

Rick Norlock Northumberland—Quinte West, ON

That's correct.

10:50 a.m.

Chair, Drugs and Driving Committee, Canadian Society of Forensic Science

Shirley Treacy

No, there isn't the literature there is for alcohol. We do have to remember that there are two sections in the Criminal Code about impaired driving: one of them is the over 80 charge; the other is impaired from drugs or alcohol, which means that it doesn't matter what the alcohol level is, you could be charged if your blood alcohol concentration is 30 or 40 if you are showing outward signs and your ability to operate a motor vehicle is impaired. So it doesn't matter what the blood alcohol concentration is. Therefore, it also doesn't matter what the drug concentration is. You have to have the evidence of impaired driving and you have to see the outward signs in the individual in order for you to proceed with an impaired driving charge.

10:50 a.m.

Conservative

Rick Norlock Northumberland—Quinte West, ON

The problem here is—tell me if I'm wrong—that there is a lack of scientific measurement or a lack of scientific evidence to say how much marijuana you have to smoke or how much cocaine you have to ingest and so on before you meet certain criteria.

To your knowledge, has there been any scientific testing to that effect that measures it? And if so, could that be produced for the committee?

10:50 a.m.

Chair, Drugs and Driving Committee, Canadian Society of Forensic Science

Shirley Treacy

Yes, there actually are studies that have looked at that.

The problem is, because there are pharmaceutical medications that people are on, there's the issue of tolerance. So I don't know that we'll ever get to a point where you can say that a specific concentration of drug is going to cause impairment. In fact, other countries in Europe, places like Sweden and Germany, have gone with zero tolerance, meaning that if they find the presence of cocaine or heroin--a drug you're not supposed to be taking--in your body, then you are charged. It doesn't matter how much; it's the fact that it shouldn't be there in the first place.

10:50 a.m.

Conservative

Rick Norlock Northumberland—Quinte West, ON

In this country, we're much smarter in our laws than they are, because we say that if you have it in your blood, since the state can't prove that it's too much or too little or anything, we just ignore it, because it might create some kind of problem for the accused person, irrespective of the problem it causes for society. I'm sorry, that's not a question you probably want to get involved in.

Mr. Lecavalier, in my previous occupation, as I was leaving—I was a breathalyzer operator for about seven or 10 years—we were just being exposed to the—And of course in this country we hate to say anything about the United States, that it might have something perhaps more advanced than we have. But the drug being able—

If I remember correctly, you were discussing some of the physical aspects, but I didn't hear anything about retinas. When I was leaving, there was talk about retinal—Is that a separate issue from the drug recognition program, looking into the eyes? Or is that part of it? Could you explain that part of it a little bit, because we haven't heard about it?

10:50 a.m.

Manager, Research and Policy, Canadian Centre on Substance Abuse

Dr. Douglas Beirness

Several eye examinations are included in the field sobriety test and the drug recognition expert program, because they're very highly correlated with levels of blood alcohol and impairment.

The most commonly used test is the lateral gaze nystagmus, which is the involuntary jerking of your eyes as you move them to the extremities. It's very noticeable for certain types of drugs; you cannot control it. You have absolutely no voluntary control over those movements of your eyes. That's one of the tests that is used.

You can also do it vertically. Certain drugs will also show vertical nystagmus.

Some of the other eye tests include looking at the reaction to light, or simply looking at the pupil size. Some drugs dilate pupils; some drugs constrict them.

Those sorts of things are very important and critical to the DRE process.

10:50 a.m.

Conservative

The Chair Art Hanger

Mr. Norlock, I'd like to let you continue—that's very interesting—but, Mr. Comartin, you're next on the list here.

10:55 a.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. MacLeod, I have concerns of going to the third stage of the drug testing regime because of its invasive nature. Frankly, we end up with evidence that's going to be admissible but doesn't prove anything. It could be very prejudicial in the mind of the judge, in terms of somebody having consumed an illicit drug.

Has the Bar Association looked at a regime that would allow the legislation to proceed on stage one and two—that is, the roadside assessment and then the DRE assessment at the station—but not go into the third stage at this point, or not put it into play until something occurs, according to some scientific standards? Or has the Bar Association looked at just keeping it out of the legislation?

Have you done any analysis of that kind of approach? Also, do you have any sense of how the Bar Association would feel about that kind of approach?

10:55 a.m.

Executive Member, National Criminal Justice Section, Canadian Bar Association

Mitchell MacLeod

One of the things the criminal justice section has tried to be cautious about is treading too far into the more scientific areas, because we're not scientists; we're lawyers who have to understand certain aspects of science in order to do our jobs. So I cannot say that we've looked at stopping it at the second level, or, from a scientific perspective, whether or not it can go to the third level.

The concern, broadly speaking, is that.... Actually, I'll go back. A lot of the witnesses here today have referenced that with alcohol, we have studied it to death. We know what it does. We have standards. We—

10:55 a.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. Norlock was saying that; it wasn't the committee. I think the people on the panel think there is still more study to be done.