Bill C-32 (Historical)

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

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.

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

Thank you.

My colleagues here have covered some of the issues I had some concerns about, including the lack of connection between impairment and possession of an illegal substance in the vehicle. But I do have one issue, and it is under clause 3 of Bill C-32, in proposed subsection 254(2), which says:

If a peace officer has reasonable grounds to suspect that a person has in the preceding three hours had alcohol or a drug in their body while they were operating—the peace officer may, by demand, require the person to comply with

When we look at the actual Criminal Code and the section that is being amended by Bill C-32, there's a clear link between the officer having to have

reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed—an offence under section 253

The reasonable ground that the officer has to have is that the individual actually may be impaired.

Under Bill C-32, the peace officer no longer has to have reasonable grounds to believe the driver has committed an offence under section 253, which is the offence of impairment. The officer merely has to have reasonable grounds to believe that the person, in the preceding three hours, had alcohol or drugs in their body. That's a real problem. Do you not see that as being a problem, Mr. Solomon?

I would prefer to see that, under clause 3 of Bill C-32, in proposed subsection 254(3), we add in the reasonable ground that an offence was committed under section 253. That would then allow the officer to conduct the breathalyzer test, the breath test, the road sobriety test, whatever. That would then trigger all of the other mechanisms the officer has to confirm or inform his reasonable grounds that the driver was impaired. Right now, nowhere in that subsection do we talk about having committed an offence under section 253. We find that in the Criminal Code, but we don't find it here.

[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.

[Robert Solomon, Director, Legal Policy, Mothers Against Drunk Driving]

Thank you.

I am appearing before you on behalf of Mothers Against Drunk Driving in my capacity as its national director of legal policy. I have been a professor in the faculty of law at the University of Western Ontario since 1972, and I am so old I even taught my learned friend here in his first year of law school. I have authored or co-authored numerous articles, studies, and government reports on alcohol and drug law. My research in recent years has focused on impaired driving and the reform of federal and provincial legislation.

I would like to introduce Mrs. Margaret Miller, the incoming president of MADD Canada. Her son, Bruce Miller, a 26-year-old police officer in Nova Scotia, was killed by a young drunk driver whose blood alcohol level was three times the legal limit for driving. Officer Miller had made a point of speaking out in his community to young people about the dangers of impaired driving. We are fortunate that Margaret has chosen to continue her son's important work and has agreed to represent our organization throughout Canada.

First, I want to briefly address the need for Bill C-32. Despite the progress we've made in terms of impaired driving between 1980 and the mid-1990s, impaired driving in Canada remains by far the largest single criminal cause of death in this country. Impaired driving claims almost twice as many lives per year as all types of homicide combined, and tragically, impaired driving takes a disproportionate toll among young Canadians. Those between the ages of 16 and 25 represent 13.7% of the population but 32% of the traffic fatalities in this country.

When you look at Canada's record in terms of impaired driving relative to the rest of the world, we lag far behind other comparable democracies. A 2001 Transport Canada study indicated that Canada had the highest rate of impairment among fatally injured drivers of eight OECD countries. Similarly, a 2000 international study indicated that Canada ranked second worst of 15 nations. The simple fact is that our federal impaired driving law is not effective and efficient relative to those in other jurisdictions around the world.

MADD Canada regards Bill C-32 as a major step forward in addressing many of the weaknesses in Canada's existing federal impaired driving law.

Given the time available, I am going to limit my oral presentation to the drug-impaired driving provisions and the narrowing of the Carter, or two-drink, defence and the last drink, or bolus drinking, defence.

I will be submitting a written brief at a later date to address some of Bill C-32's other important reform provisions.

I'm going to turn now to drug-impaired driving and the magnitude of the drug-impaired driving problem. There is ample reason to believe that drug-impaired driving is a matter of considerable concern and a growing problem. A series of national surveys indicate that driving after drug use is commonplace and that the rate of driving after cannabis use is increasing, particularly among the young.

Numerous provincial and regional studies report equally troubling patterns of drug use and driving, particularly in regard to cannabis. For example, a Quebec study of fatally injured drivers between 1999 and 2001 indicated that 22.6% were positive for only alcohol, 17% were positive for only drugs, and 12.4% were positive for both. The most common drugs, other than alcohol, were cannabis, benzodiazepines, cocaine, and then opiates.

Similarly, a 2005 study in Nova Scotia found that 15% of grade 10 to 12 students in Atlantic Canada reported driving under the influence of cannabis, whereas only 11% reported driving under the influence of alcohol. Thus, in this study, the number of young people driving under the influence of cannabis and drugs exceeded the number driving under the influence of alcohol. Students who drove under the influence of cannabis were twice as likely as cannabis-free students to report being in a collision.

The adverse effects of cannabis and other drugs on driving performance have been well documented. While the exact causal role of various drugs in crashes requires more research, it is clear that drug use constitutes a major traffic safety problem.

For example, a Canada-wide study in 2004 estimated that drug use alone or in combination with alcohol contributed to approximately 368 traffic fatalities, 21,702 traffic injuries, and 71,000 property damage only collisions.

These statistics are particularly important for young people. Why? It is because this constituency has the highest rates of illicit drug use and fatal crashes per kilometre driven. These facts underscore the importance of moving on Bill C-32.

I'm going to turn to the proposed impaired driving provisions.

Given that Canada's first prohibition against driving under the influence of drugs was in 1925, it is an understatement to suggest that giving the police powers to enforce this law are long overdue. It's been an offence for 82 years, and we have yet to give the police the powers they need to enforce this law in an efficient and effective manner.

Although there are some provisions of the existing Criminal Code that can, in very limited circumstances, be used to enforce drug-impaired driving, they apply in rare circumstances. As a result, currently those who drive under the influence of drugs are largely immune to criminal charges.

Bill C-32 provides a strong framework for drug-impaired driving enforcement by laying out the basis for the drug recognition expert testing, DRE. The DRE evaluation is a twelve-part process that involves physical observations to check for the presence of seven classes of drugs, an interview with the suspect, physical sobriety testing to determine impairment—and it's important to understand that it is those components of the DRE that establish impairment—a summary report, and a confirmatory test of urine, saliva, or blood to confirm the presence of the class of drugs identified in the report.

The bodily sample test isn't a test of impairment. It confirms the presence of the drug. The other aspects of the DRE—the divided attention test, the physical coordination testing—establish the impairment. There has been a lot of confusion in the media.

The DRE program has been used throughout the United States since the early 1980s. Today it is also widely used in Australia, New Zealand, Germany, Norway, and Sweden.

The constitutionality of DRE testing and the admissibility of DRE-related testimony have withstood numerous challenges in the American courts. Early studies carried out in the United States by the National Highway Traffic Safety Administration, or NHTSA, which is probably the world's leading traffic safety organization, showed that when DRE officers concluded that a subject had a drug in his or her possession, the toxicology results revealed that the suspicion was correct 94% of the time. Recent studies have confirmed these results, concluding that the overall accuracy rate in recognizing drug presence was nearly identical to that of the early studies.

Justice Canada is to be commended on the proposed drug-impaired driving provisions, because they provide a far simpler, stronger, and more constitutionally sound enforcement framework than that set out in its 2003 “Drug-Impaired Driving: Consultation Document”.

I now want to turn to alcohol-impaired driving and the Carter and last drink defences. The Canadian courts have interpreted the Criminal Code in a manner that results in the evidentiary breath and blood test results being thrown out based solely on the accused's unsubstantiated denial of impairment. In the absence of the test results, the charge of driving with a blood alcohol level above 0.08 is invariably dropped or the accused is acquitted.

I'm going to briefly outline the defences.

The Carter, or two-drink, defence is based on the accused's testimony or claim that he or she consumed only a small amount of alcohol prior to the alleged offence. A defence toxicologist is then called to confirm that if the accused had in fact consumed such a small quantity of alcohol, his or her BAC would not have exceeded 0.08.

Since the toxicologist's testimony is based solely on the accused's self-reported consumption, it adds nothing to the credibility of the accused's consumption testimony. If the court accepts the accused's consumption evidence, then the breath or blood evidence is completely disregarded, even if the evidentiary tests were administered properly by a trained and certified officer and were consistent with the results of the roadside screening tests and were supported by the arresting officer's observations and other evidence that the accused was visibly intoxicated.

It is simply assumed, based on the accused's self-serving and often unsubstantiated claim or testimony, that the evidentiary test results were somehow wrong and must be rejected without any direct proof that a testing error occurred.

The last drink defence is based on the accused's testimony that he or she consumed a very large quantity of alcohol—a practice known as bolus drinking—immediately before driving. It is then contended that very little of this alcohol had been absorbed into the driver's bloodstream by the time he or she was stopped by the police. Thus, the accused argues that his or her BAC was below the legal limit when driving but only rose above the limit in the interval between being stopped and the evidentiary breath or blood testing.

The last drink defence is rarely compatible with accepted principles of toxicology or typical patterns of alcohol consumption. I doubt that very many people sit in a bar for seven hours, have milk and cookies, and then 20 minutes before the bar closes drink a large quantity of alcohol and get immediately stopped by the police. But that's the only basis upon which this defence is plausible.

While the defence is theoretically plausible in rare cases, it begins to lack an air of reality at BACs much above 0.1%. Again, if the last drink defence is accepted, then the evidentiary breath or blood tests are thrown out and the accused is acquitted.

The current federal legislation and the courts' interpretations of it have created insurmountable barriers to efficient and effective prosecution. National and provincial surveys have documented police officers' growing frustration with these loopholes and their increased reluctance to lay impaired driving charges. Officers, when surveyed, indicate that they will frequently or sometimes not lay criminal charges even if they are convinced that the individual is impaired.

In British Columbia, 50% of the police refuse to lay criminal charges even if they are convinced that the accused is impaired. Why? Because the process is so frustrating and these loopholes render their efforts of no force.

This sense of frustration that the police have helps explain the falling rates of impaired driving charges in Canada. For example, in 2003, the statistics indicated that Canada's charge rate for impaired offences per 100,000 licensed drivers was 39% of what it is in the United States.

These defences help to bring about the de facto decriminalization of impaired driving in this country because the law is so inefficient and so ineffective. These defences do not exist in any other jurisdiction, and they bring the administration of justice in Canada into deserved disrepute.

Indeed, some Canadian defence counsel boast openly about their ability to get virtually any impaired driver acquitted. For example, in a newspaper article entitled, “How Big Bucks Can Beat .08”, one Saskatoon lawyer bragged about having never lost more than one of his 50 impaired driving trials per year, while another claimed to have achieved a string of 28 consecutive acquittals.

I had my students check some of the websites of defence counsel, and they have testimonials on their websites from impaired drivers who said, “My blood alcohol was way over the limit; I thought I was done like dinner, but I spoke to my lawyer and he told me he could get me acquitted on a technicality, and he did”. Do you think anyone, any lawyer, would allow testimonials for any other offence, testimonials such as, “I committed seven sexual assaults; I thought I was done like dinner, but my lawyer told me I could get off on a technicality, and I did”?

We would not allow this defence to operate in this way for any other offence. Surely the victims of impaired driving are no less deserving of protection and respect than victims of other violent crimes.

Bill C-32 will significantly narrow the Carter and last drink defence and help ensure that the 0.08 offence is enforced and prosecuted as Parliament intended. The proposed amendments would also bring Canada's 0.08 offence into line with the law in other comparable democracies. MADD Canada strenuously supports these changes.

In conclusion, MADD Canada strongly supports Bill C-32. We hope the committee will move quickly to endorse the legislation.

Although we addressed only drug-impaired driving and the Carter and last drink defences in our presentation, we will be submitting a written brief endorsing the other important amendments in Bill C-32.

In closing, I would like to thank you on behalf of my colleague, Mrs. Margaret Miller, for this opportunity to appear before you on this important issue.

Thank you.

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order on Thursday, June 7, 2007. Our agenda deals with Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts.

We have a good list of witnesses before us this morning.

We have Mothers Against Drunk Driving, Ms. Margaret Miller, the national president. Welcome. We have Mr. Robert Solomon, director, legal policy. Welcome to the committee, sir.

We have the Canadian Council of Criminal Defence Lawyers, Mr. Mark Brayford, vice-chair. Welcome, sir.

Finally, we have the B.C. Civil Liberties Association, Mr. Kirk Tousaw, chair of the drug policy committee.

Welcome all to the committee.

I understand, Mr. Solomon, you will be presenting for Mothers Against Drunk Driving. Sir, you have the floor.

[Prof. Line Beauchesne, Associate Professor, Department of Criminology, University of Ottawa, As an Individual]

Good morning. Thank you for your invitation.

In any piece of legislation, before being able to say how relevant the measures being proposed actually are, one first needs to consider the goal being pursued and look at the problems to be resolved. In this case, the purported goal is to improve road safety by preventing people who are impaired from driving a vehicle, as they may pose a danger to themselves or to others. However, a bill hoping to attain that objective must successfully resolve the following issues.

The first major issue, which was raised during parliamentary debates, is that thus far, activity has, for all intents and purposes, focussed on alcohol, in terms of both prevention and our legal system, even though there are many other factors that can give rise to impaired driving, be they fatigue, medication or other reasons.

The second issue relates to repeat offenders, who seem to be relatively unaffected by prevention campaigns. Repeat offenders are few in number, but are responsible for the vast majority of accidents. According to the research, these repeat offenders are clearly dependent on drugs, the main drug being alcohol, for most of them. Alcohol is a drug, even though that seems to be somewhat forgotten in some of the debate.

This bill must make it possible to determine all the causes of impaired driving and to better target repeat offenders. However, it succeeds in neither case.

What are the issues clearly indicating that this bill misses the target, which is to improve road safety by preventing impaired driving?

The first issue is that the bill is practically unenforceable from a financial standpoint. In fact, a number of parliamentarians have pointed to that specific problem and the debate on Bill C-16 — the predecessor to Bill C-32 — clearly demonstrated that. The resources that will be needed to implement this bill across the country are in the millions of dollars. Even the addition of 1 000 police officers, as one parliamentarian has suggested, would in no way resolve the problem in rural areas. The process created here is cumbersome and practically unenforceable.

As well, enforcing this legislation will be costly. In a general sense, there is the cost of training DREs and police officers. However, the regular renewal of portable detection equipment, validation of laboratory drug tests and judicial procedures are also extremely costly. We are talking here about a middle class that will defend itself. There is a whole maze of possibilities. We already know what the alcohol-related side of this costs in terms of legal proceedings. This opens a whole new window of opportunity that will create very costly legal tangles.

The second issue, as was already mentioned, is that traces of drugs in the body are not clear proof that a person was impaired. They simply indicate that this individual used drugs. If, for example, a person used marijuana Friday evening and, on the following Friday, is given a drug test, the test will not be about determining whether that person was impaired because of marijuana. The test would only tell us that in the days or weeks prior to that, the individual in question had used marijuana.

The kind of equipment that authorities claim to be able to use is relatively discriminatory. It has been proven scientifically that it cannot be said that a person is impaired simply because traces of drugs have been detected in that individual's body.

The third issue is that enforcement of this legislation is likely to be extremely discriminatory. As Mr. Therien pointed out, there are 22,000 different types of medication and a whole range of drugs. It is quite clear that the portable equipment used nowadays focusses on certain types of drugs that are used by certain kinds of people.

In that respect, one may wonder whether the real objective is to catch people who use illegal drugs, or to include all the possible causes of impaired driving, whatever drug has been used. During the debate on Bill C-16, some pointed out that if medication were involved, that person would be referred to a physician or to someone other than the police.

The message of prevention that this bill sends is that there are good and bad reasons to drive while impaired. Let me give you an example.

Supposing an individual worked an unexpected shift and has not slept for 30 hours. That person is practically asleep, but still decides to his or her car and ends up killing someone. Are we going to say that it was okay for that individual to have killed someone, simply because he or she had worked too many hours? I don't think that's the kind of message we are trying to convey. We may also be talking about someone 79 years old, who is told by his daughter that his medication puts him to sleep and that he really should not drive a car, but who decides to drive his car anyway, and ends up killing someone. Are we going to tell such individuals that they have the right to kill someone, simply because they are elderly and they decided to drive their car?

The message of prevention that this bill sends is not clear at all. In fact, it seems to be more about the fight against illicit drugs than it does about preventing impaired driving. The millions of dollars that will be invested for no purpose in this bill are millions of dollars that could be invested in prevention.

So, what should be done to improve the current situation as regards impaired driving and move in a different direction in relation to the two issues that I have raised?

It is quite clear that prevention should focus on broadening advertising aimed at specific client groups, so as to include medications considered to impair the ability to drive. Indeed, France has done a great deal of work in that area. Be it on television or through other means, we have to stop saying that alcohol is the only thing that results in impairment, and encourage people to drive only when they are fit to drive.

We are not talking about reinventing the wheel here. I am not referring to sobriety tests, because the issue is not only about having used specific drugs; we are also talking about roadside reflex tests that are videotaped, tests which would now be mandatory. Those tests would make it possible to determine whether an individual is able to drive. Whatever the reason, if that person is not able to drive, he or she would be taken off the road.

We do not need to know whether such individuals use drugs, whether they were tired, whether they were going home or whether they were coming out of a bar. They were tested and filmed and proven not to have the necessary reflexes to drive properly. We are not only seeking people who use drugs through this exercise. The important thing is to remember that we need to take people off the road who are driving impaired.

One of the basic concepts in criminology is that an enforcement mechanism that is simpler and is used more often — and people have the sense that it is being enforced — is preferable to a complex and costly mechanism that is rarely enforced, and which gives people the feeling that they will not get caught because the authorities will hesitate to move in that direction. They have the feeling they will not be targeted because this is only aimed at people who use illegal drugs.

It is much easier to train police officers to carry out a basic reflex test — which involves asking people to walk in a straight line or lift their legs, while being filmed, than it is to train DREs, at a cost of many millions of dollars, whose job it will be to determine, using an extremely complex procedure, whether people seem to have used drugs.

France has done more in a year and a half to reduce speeds on the highway by installing cameras that regularly take pictures of drivers. Highway accidents have decreased by a quarter or a third. I will soon be receiving all the details with respect to the assessments that have been carried out. This particular program involves demerit points and fines, which have a much greater impact than if 300,000 additional police officers had been assigned to patrol the roads in France.

As a result, the more complex the procedures, the less likely it is that they will be enforced and that they will be highly discriminatory.

As regards the second issue—that is, repeat offenders—studies show that the vast majority of them have an alcohol dependency problem. People like them could have their licences taken away. However, what is needed is a much better organized national register to keep track of them, so that their licences can be taken away as long as there are not adequate guarantees that their problem has been resolved. The real issue here is treatment.

When you read the testimony of highway accident victims, you realize that they often lacked support following their accident. So, perhaps we should be spending more of these millions of dollars on support for highway traffic accident victims.

In closing, I would just like to say that it is time to give police officers the means they require to ensure more effective prevention of impaired driving, whatever the cause. Police action will be successful if the procedure is simpler and includes demerit points, higher insurance premiums and a proper offences registry. Such measures, which are far less costly than those presented here, would also allow for the introduction of a series of additional measures aimed at prevention and at assisting highway traffic accident victims.

Unfortunately, this bill does not move in that direction and even risks reducing police effectiveness in this area, at the expense of the many individuals who are victims of traffic accidents.

Thank you.

[Emile Therien, Past President, Canada Safety Council]

Thank you very much, Mr. Chair.

I'd like to acknowledge Diane Diotte and her staff for facilitating our appearance here today. Thank you very much.

We have brief remarks, and I think all of you have received our submission.

Canadians are very concerned about young drivers impaired by alcohol or drugs and older drivers impaired by prescription medications. The Canada Safety Council considers the issue of drug-impaired driving to be a very high priority, and we agree that government action is needed. It is imperative.

The former and current governments proposed the amendments in Bill C-32 to strengthen the enforcement of drug-impaired driving offences in response to this high level of public concern. Criminal legislation must be airtight, because unlike provincial traffic regulations, the accused is innocent unless proven guilty. A very high level of proof is required because for the accused the stakes are very high. Anyone convicted of a criminal offence will carry that record for life. The chances are therefore very high that such legislation will be challenged and loopholes found.

Drug-impaired driving is a very complex issue. Until the enormous problems identified in the Canada Safety Council's submissions are resolved, criminal legislation is premature. That is why we urge the government to put Bill C-32 on hold, until it can meet the rigorous requirements of a criminal court. There are other ways to respond to this serious problem, and we have recommended that these be pursued. The council agrees that immediate precautionary measures are in order, but the priority must be to protect the public from drug-impaired drivers, rather than simply impose criminal sanctions after the fact.

This committee is no doubt aware of Canada's strategy to reduce impaired driving, which is known by the acronym STRID. That strategy started in 1991 and has the full support of all provinces and territories, as well as Transport Canada. Justice Canada must not take unilateral action on impaired driving.

Canada's impaired driving laws are among the strictest in the world. Combined with leadership from STRID, this has led to significant progress in the fight against impaired driving. Between 1995 and 2000, road fatalities involving a driver who had been drinking went down by one third. That said, impaired driving remains a safety problem of the highest priority in this country.

In 2004, the latest year for which comprehensive statistics are available, road crashes involving a driver who had been drinking killed 815 people. Consistently about half of all impaired driving fatalities are the impaired drivers themselves—very definitely not innocent victims.

The absence of national statistics on motor vehicle fatalities or crashes involving drug impairment should be of concern. Good laws are not driven by feelings and opinion polls, but are based on hard facts, credible statistics, and solid research.

l expect that you have all looked at our submission, so l would like to review some of our recommendations.

It should be obvious that we believe Bill C-32 is premature, and we strongly recommend that it be put on hold for the necessary groundwork to be completed. Indeed, the government's priority should be to provide resources, and these include adequate funding to ensure that future legislation has a solid scientific basis and technological support, to identify drugs that can impair driving ability, and to establish defensible impairment levels for each drug and specify the measurement methods.

We have pointed out that more and more impaired driving cases are being pleaded outside the Criminal Code. The government must consider the reasons behind this trend before proceeding with further criminal legislation.

Administrative licence suspensions have proven effective in the fight against impaired driving. Under traffic codes, most Canadian jurisdictions impose 12- to 24-hour suspensions on drivers whose blood alcohol concentration is below the criminal limit. These suspensions remove potentially dangerous drivers from the road. They provide a stern and effective warning, without the punitive lifetime consequences of a criminal record and a costly criminal court case.

The Canada Safety Council has encouraged provincial and territorial governments to impose administrative licence suspensions on drivers who show impairment by substances other than alcohol. That is why we recommend that federal resources should redirect moneys earmarked for the implementation of this bill to help provinces and territories deal with drug-impaired driving under their traffic codes.

One of our key recommendations is that Justice Canada should collaborate with STRID to coordinate any amendments to the Criminal Code with respect to drug-impaired driving. I stress that it could be counterproductive for Justice Canada to enact impaired driving legislation that interferes with the national strategy and counters measures now in place.

Proponents of Bill C-32 say a driver impaired by cannabis poses as much of a risk as a driver who is above the legal limit with alcohol. First of all, the bill is not restricted to cannabis. On top of that, there is no scientific basis to establish impairment by cannabis, or for that matter, any drug.

It should also be noted that the evidence clearly shows alcohol carries a higher risk than cannabis. The underlying problem with this illicit drug is that it is an illegal substance. The focus should be on the fact that so many Canadians are using it at all. Its negative health and safety effects extend far beyond impairment while driving. A national strategy is needed to reduce cannabis use, with an emphasis on youth and habitual users. In our opinion, this is far more urgent than criminal legislation on drug-impaired driving at this time.

It may be counter-intuitive, but there is little evidence that drivers who have used cannabis on its own are more likely to cause crashes than drug-free drivers. It does negatively impact driving ability, although in very different ways from alcohol. THC, the active component in cannabis, can be detected in the body for up to four weeks, but its impairing effects do not last. Relatively few road fatalities test positive for THC alone. Most often it is found in combination with alcohol, a combination that drastically increases crash risk.

Roadside breathalyzers allow police to detect and measure the presence of alcohol. At present there is, unfortunately, no reliable, non-intrusive roadside method to test for cannabis. Even if such a test were available, a defensible limit must be set at which a cannabis-using driver is criminally impaired. Before criminal legislation can be implemented, defensible criteria must be set for THC impairment, alone and also in combination with alcohol, and the government must approve detection tools for use by trained police officers. This process alone could take years, but without it the law will not be enforceable.

l'd like to move on to medications, which are also covered in Bill C-32.

Canadians over age 65 take an average of nine medications daily, including prescription, over-the-counter, and herbal. Medications can have a positive or negative effect on driving ability. Some people, such as epileptics, may not be able to drive at all without medication. Physicians prescribe benzodiazepines to combat anxiety and insomnia among seniors. They can have side effects such as drowsiness, impaired motor function, and confusion, and have been implicated in many collisions.

Seniors taking certain painkillers may experience sedation and mild impairment. Even over-the-counter drugs can reduce driving ability. Antihistamines can cause drowsiness and poor concentration. Tranquilizers or cold remedies such as cold tablets, cough syrup, and sleeping pills can reduce driving ability. Combinations of medications can also produce unexpected side effects and bad reactions. Combining alcohol with medications is very risky, especially for seniors. With age, tolerance for alcohol decreases steadily, and the body does process it less efficiently.

Currently about 22,000 human drugs are available in this country. To identify those that can impair driving—alone or in combination with other substances—and then set defensible criteria for each and approve measurement tools just poses a huge challenge.

With Canada's aging population, legal medications present a health and safety issue that extends beyond driving and must be addressed. The council views this as a very important health and safety issue, but not a criminal issue.

Other strategies, some of which are already in place, would be far more effective and appropriate than using the Criminal Code to prevent driving under the influence of potentially impairing medications. We have therefore recommended that the federal government develop and fund a strategy, including public education, to address concerns associated with impairment by medication. Justice Canada must assess the rationale for and potential consequences of using the Criminal Code as a legislative tool to address medication-related impairment. This issue, in our view, is a better fit with Health Canada's mandate.

To a lesser extent, illegal use of prescription medications such as those with psychotropic properties, as well as the use of illicit drugs such as cocaine, are factors in impaired driving. Targeting cannabis could turn users to other, even more harmful substances.

In summary, we know politicians are under pressure to do something about the perceived increase in drug-impaired driving. However, the proposed criminal legislation is likely to be ineffective, and even counterproductive. We urge you not to risk failure. Address the problem in collaboration with the appropriate agencies outside the Criminal Code at this time.

Thank you very much.

[Nicole Dufour, Lawyer, Research and Legislation Service, Barreau du Québec]

Good morning. As you say, I am responsible for coordinating the work of the Criminal Law Committee of the Quebec Bar. That Committee is made up equally of members who are defence lawyers and Crown attorneys. Academia is also represented on the Committee. With me today is Mr. Belleau, who will answer questions, as appropriate.

To begin with, I would like to summarize the Quebec Bar's position on Bill C-32. What we can say, right from the start, is that we agree with the goal being pursued through this bill, which is to establish rules to ensure effective action against impaired driving under the influence of drugs. However, we do have some concerns that we would like to make you aware of.

This bill creates a new offence—that is, the operation or the fact of having the care or control of a motor vehicle while in possession of a controlled substance, within the meaning of the Controlled Drugs and Substances Act. The Quebec Bar believes that there is no rational link between the intent of the bill and the offence of possession. In the absence of a breach of the driver's obligation, there should be no such offence. The offence of possession is, in fact, already provided for under the Controlled Drugs and Substances Act.

Furthermore, the penalties that are suggested for a first conviction on the new offence, which is an order prohibiting the offender from operating a motor vehicle for a period of at least a year, with no access to mitigation measures, appears to us to be unduly harsh, considering the absence of a logical connection between the offence of possession of a controlled substance and the prohibition to operate a motor vehicle.

We agree with changes that would allow a peace officer to make a video recording of a performance of the physical coordination tests. However, we would like there to be an obligation, on the part of peace officers, to systematically make such video recordings, in order that the best possible evidence be available. This would probably limit the nature and scope of legal debate on these issues.

With respect to sentencing, the Quebec Bar advocates the free exercise of judicial discretion by the court in order to ensure that punishment is just, by balancing the relevant principles. In that respect, the Quebec Bar cannot support the changes proposed in the bill with respect to the minimum fine for a first offence and the minimum prison term for a subsequent offence.

The effects of imposing a minimum fine will vary based on the financial circumstances of the accused. The Quebec Bar is concerned about the negative repercussions of such a penalty on the offender's family. Indeed, imposing a prison term of no less than 90 days for a third offence would mean that the sentence could not be served intermittently. That could have unfortunate consequences, such as the loss of employment, for example, and would clearly affect other members of the accused's family.

The bill also provides that, in the absence of evidence tending to show both that the approved instrument malfunctioned or was used incorrectly, or that, when the analysis was performed, the concentration of alcohol in the accused's blood would not have exceeded 80 milligrams of alcohol per 100 millilitres of blood, evidence corresponding to the results of the analysis will constitute conclusive proof of the accused's blood alcohol level at the time the offence was alleged to have been committed.

The Quebec Bar is concerned about this double requirement of evidence and its consequences. We believe that conclusive proof as to the malfunction or improper use of the equipment should suffice to reject the test results. Otherwise, we believe this provision is likely to violate the presumption of innocence.

The bill also proposes to make it impossible to adduce direct evidence of a blood alcohol level of less than 0.08 with a view to challenging the instrument results. We are concerned that this could lead to wrongful convictions. As an illustration, we would cite the example of an accused who, after failing such a test, decided on his own to go to a health clinic for the purposes of determining, through a blood test, what his blood alcohol level was. If the results of that test showed the level to be under the limit, that person would not have an opportunity to adduce that direct evidence if he or she had been unable to prove that the instrument malfunctioned or was operated improperly.

The Quebec Bar is also concerned about the difficulties an accused could encounter when attempting to demonstrate that the instrument malfunctioned or was used incorrectly. What exactly would he or she have access to?

Those are our comments.

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order. This being Tuesday, June 5, 2007, the orders of the day, as noted, bring about the discussion on Bill C-32, an act to amend the Criminal Code on impaired driving and to make consequential amendments to other acts.

We have a number of witnesses appearing before the committee. I will just go down the list. We will begin with the Barreau du Québec and Mr. Louis Belleau, who is the president of the committee on criminal law of the Barreau du Québec, and Nicole Dufour, a lawyer with research and legislation services. From the Canada Safety Council, we have Mr. Raynald Marchand, general manager of programs; Emile Therien, past president; Ethel Archard, consultant. As an individual, we have Line Beauchesne, associate professor, Department of Criminology, University of Ottawa. From the Criminal Lawyers' Association, we have Paul Burstein, director; and Jonathan Rosenthal, representative.

Welcome, all.

I will begin with the Barreau du Québec, please.

Is it Mr. Belleau?

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, with regard to the last point, we have already addressed that.

However, with regard to the balance of Thursday's statement, I am pleased to respond that today and tomorrow we will continue with Bill C-55, the expanded voting opportunities bill; Bill C-14, the adoption bill; Bill C-57, An Act to amend the Immigration and Refugee Protection Act; and Bill C-45, the fisheries act.

In the last Thursday statement, we indicated that we were hoping to have this week as “enhancing the quality of the life of first nations people week” but this was cancelled by the opposition parties when they did not release Bill C-44 from committee, the bill that would give the first nations protection under the Canadian Human Rights Act. Not only is it being held up now but, as early as this morning in this House, the opposition obstructed our efforts to get the bill dealt with forthwith so that first nations people could have the human rights that every other Canadian enjoys. We know that if all parties would agree to proceed with that, as we saw when we sought unanimous consent, it could proceed, but some would prefer to obstruct it.

Next week will be welcome back from committee week, when we welcome business that has been at committee, including some that has been stalled there for some time. We will deal with Bill C-52, the budget implementation bill, which will begin report stage on Monday and, hopefully, we can get third reading wrapped up by Tuesday.

Following the budget bill, we will call for report stage and third reading of Bill C-35, bail reform. After that, we will call Bill C-23, the Criminal Code amendments. I hardly remember when Bill C-23 was sent to the committee by this House. That took place long before I was even House leader 228 days ago.

Thursday, June 7, shall be the last allotted day. There are a number of other bills that we would like to include in our welcome back from committee week. I still hope we can see Bill C-44, the amendments to the Canadian Human Rights Act, to which I just referred; Bill C-6, the amendments to the Aeronautics Act; Bill C-27 dealing with dangerous offenders; Bill C-32 dealing with impaired driving; and Bill C-33 dealing with foreign investment, if the opposition parties will release those from committee.

[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?

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

Thank you, Chair.

Thank you very much for your presentation, Minister.

I have just a couple of questions. One concerns--and I don't know what the term is in English--l'expert en reconnaissance des drogues. I'd like to know how many police officers across Canada have already been certified as such experts and how many more will be required in order to ensure that Bill C-32, when it becomes the law, will actually be implemented, and there is no excuse.

Given that le test de sobriété normalisés for drug impairment is already being used in Canada in several jurisdictions, has it been contested before the courts for its constitutionality; and if it has, what has been the result of that?

I'd also like to know the success rate of the test and the rate of conviction as compared to alcohol, if you have those statistics. If those statistics are not available, then that is a request we would make to the centre in future, to try to get that breakdown.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

Welcome, Minister. I would appreciate it if you could focus strictly on the bill at hand, because so far, you have not said much about it. That is, after all, why you are here today.

When police officers, peace officers have reasonable grounds to believe that an individual is driving while drug-impaired, they will have new ways of assessing that individual. The legislative summaries refer to standardized field sobriety tests and drug recognition experts. These are two seemingly different processes, the second of which calls for training which would involve provincial areas of jurisdiction.

How will this new bill C-32 provide for the assessment of drug-impaired individuals? Why does the Criminal Code not contain numerical tests? There's no reference to set indices, but rather to reasonable grounds.

How will this play out in actual fact? Let's say, for instance, that I am on highway 20 and a police officer has reason to believe that I am driving while impaired by a drug. I want to understand what these expressions "standardized field sobriety test" and "drug recognition experts" mean.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Mr. Chairman. As you indicated, I'm here with Greg Yost from the criminal law policy section and Corporal Evan Graham from the Royal Canadian Mounted Police. I just want to make sure you know that he's not here for my protection; he's here for your edification. I want to make that clear at the outset.

I'm pleased to appear before you again as you begin consideration of Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts.

I note that the bill received the support of all parties in the House, but that a number of members have expressed various concerns and look forward to the standing committee's hearings during which experts should be able to respond to their questions.

I want to reiterate that the government is open to consideration of any amendments that are consistent with the scope and principle of this bill and that you consider would strengthen the bill.

As you know, the bill deals with three components: drug impaired driving, defences to a charge of driving with blood alcohol content exceeding 80 milligrams, and amendments that respond to various problems in the Criminal Code's impaired driving provisions.

With respect to drug impaired driving, I should indicate that the provisions of Bill C-32 are almost identical to Bill C-16 as it was amended by the standing committee in the last Parliament. It will provide the legislative framework for the drug recognition expert or the DRE program.

Canada is actually behind some countries, including the United States, in this particular field. Since 1984, for instance, the National Highway Traffic Safety Administration in the United States has supported a drug recognition expert training program, which was initially developed by the Los Angeles, California, police department. DRE training has been validated through both laboratory and field studies conducted by Johns Hopkins University.

In 1987, the highway safety committee of the International Association of Chiefs of Police was requested by the NHTSA to participate in the development of a national expansion of drug recognition experts, as well as to oversee certifying of the DREs. It took until 1992 for all the work to be done on the first set of IACP standards to be adopted. Those standards have been revised over the years based on the advice of medical and other experts.

In Canada, DRE-certified officers only use DRE where a suspect voluntarily participates in the testing. Once our legislation authorizing police to make DRE demands is in place, we expect Canada to continue to look to the IACP process to ensure we are always using the most up-to-date, scientifically validated practices and procedures.

Of course my officials and I are not the experts on the pharmacology of various drugs, their effects on the ability of a person to drive, or how long the drug lingers in the body, but we will endeavour to respond to any questions that members have. I'm pleased to have a couple of experts with me.

I would point out that we have been guided by the advice of the drugs and driving committee of the Canadian Society of Forensic Science. In 1999, when it was examining the impaired driving provisions, it suggested that there was a need to have legislative demands to perform sobriety tests and DRE evaluations.

Some members of this committee are likely familiar with the DRE program from previous hearings. Therefore, I will outline just the main steps.

First, the officer must suspect the presence of a drug in the body before demanding sobriety tests. That suspicion could be based on a number of factors, including the smell of marijuana or physical symptoms such as eyes that do not react normally to light. This is similar to the suspicion of alcohol in the body based on the smell of alcohol or watery eyes, which is the requirement for a demand for a breath test on a screening device at roadside.

Second, it is only if the driver has failed the roadside sobriety test that the officer can demand further tests at the police station. That the driver is unable to walk a straight line or stand on one foot and hold the other six inches off the ground--the usual tests--the officer now has reasonable grounds to believe that the impairment may be caused by a drug or a combination of drugs and alcohol. This is similar to the officer who has reasonable grounds to believe that the person is impaired by alcohol can take the person to the station for a breath test, the result of which can be used in court.

I believe that members will agree that a person who can't perform the simple roadside sobriety tests should not be driving. If the impairment is caused by alcohol or a drug, the person's impairment is a criminal act. The person has voluntarily consumed a substance that reduces his or her ability to drive.

If the impairment is caused by a medical condition, the person will be sent for medical attention. It is then a matter for provincial driver licensing authorities.

The DRE-trained officer will examine the person and have the person perform certain prescribed tests, including, for example, eye examinations in different lighting, muscle tone, blood pressure, and pulse. Before the DRE expert can demand that a bodily substance be analyzed for the presence of a drug, the expert will have formed the opinion that the person's ability is impaired by a family of drugs or a combination of drugs and alcohol.

Third, the analysis of a bodily sample will either confirm or refute the presence of the drug that the DRE has identified as causing the impairment. This is a check on the officer's identification of the involvement of a specific drug family.

Ultimately the court will have before it evidence of erratic driving or behaviour, failure to complete simple physical coordination tests, a DRE report on the physical symptoms observed that lead to the conclusion the impairment is caused by a family of drugs, and proof by analysis that the person had the drugs in his or her body. It's my understanding that the courts in Canada have found that sufficient evidence to found a conviction in cases where the DRE has proceeded with the voluntary participation of a driver. What Bill C-32 will do is compel the person to participate in the physical coordination tests and in the DRE process.

I now turn to the current use of evidence to the contrary in the courts. I note that during the debate at second reading, reforms we are proposing received strong support. In particular, Mr. Comartin, who has studied this issue quite extensively and has seen the consequences of impaired driving, has said a number of times that the way the two-beer defence has been used is almost a “scandal”.

I agree with him. A two-beer defence is a scandal. It may have had merit in an era when breath test instruments used a needle that had to be read by a technician and the results written down. But with modern electronic instruments that have built-in operability checks and that print out the results, these reasons to accept a two-beer defence no longer apply. The two-beer defence makes all the care that goes into testing and approving instruments, and training operators to use them, close to a waste of time.

One question that was raised was whether it was appropriate for the Criminal Code to restrict the kind of evidence that can be brought forward. I can tell you that Parliament has done so in the past--for example, in the rape shield provisions that restrict the cross-examination of a victim of sexual assault regarding past sexual conduct. It is altogether appropriate, therefore, for Parliament to limit the evidence to the contrary to evidence that has scientific merit. The accused will still be able to bring evidence of consumption, but unless there is evidence either that the approved instrument was malfunctioning or was not operating properly, the evidence of consumption will only be relevant if it is compatible both with the BAC recorded on the instrument and also with the person being under 80 milligrams at the time of driving--for example, because the person had a drink after the driving and before the testing.

I would like to refer to a few other particularly notable reforms proposed by Bill C-32. The bill proposes to increase the current penalties in several ways. I think the higher minimum of $1,000 for a first offence, up from the current $600, reflects the seriousness of the crime. We also propose to come down harder on the repeat impaired driver by increasing the mandatory terms of imprisonment, including raising from 90 to 120 days the minimum for a third-time offender.

We do not believe it is appropriate--and I trust the committee will agree--for a person who has two previous convictions to be able to seek to serve the sentence on an intermittent basis, as they now do. Moreover, we are proposing that the maximum term of imprisonment, if the prosecution proceeds summarily, be increased from six to 18 months.

Our provincial colleagues tell us that there are currently many cases where they will ask for more than six months of imprisonment. They have to proceed by indictment, a more serious and more expensive procedure, even though they know they will not be seeking more than 18 months. Eighteen months' maximum on a summary conviction is the same as that provided for a number of offences, including uttering threats to cause death or bodily harm, assault causing bodily harm, sexual assault, and forcible confinement. So the government believes that the threat of harm caused by the impaired driver merits the same maximum punishment on summary convictions as those offences.

In addition, the bill proposes creating new offences of being over 80 milligrams or refusing to provide a breath sample and causing bodily harm or death. These new offences reflect the general approach of the Criminal Code to treat impaired...or being over 80 milligrams and refusal in the same manner.

Currently the Criminal Code only has the offence of impaired driving causing bodily harm or death. In an accident situation, there may be no direct evidence of the person's driving. The symptoms ordinarily used to indicate impairment, such as being unsteady on one's feet, may be attributed to the effects of the accident. There is, therefore, an incentive for the person involved in an accident not to provide a breath sample, and because the certificate establishing BAC can be crucial evidence to establish that the person's ability to drive was in fact impaired....

I believe Bill C-32 is a balanced legislation that will greatly assist the police, prosecutors, and the courts in dealing with impaired drivers. I urge the committee to deal with it expeditiously.

Mr. Chairman, that concludes my remarks. I'd be pleased to answer any questions that the committee may have.

[The Chair, Conservative, Art Hanger]

I would like to call the Standing Committee on Justice and Human Rights to order on Wednesday, May 30, 2007. The orders for today are centred around Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts.

Appearing before the committee is the Minister of Justice, the Honourable Rob Nicholson, and one departmental support individual, Greg Yost, counsel, criminal law policy section. From the RCMP we have Evan Graham, national coordinator, drug evaluation and classification program. Thank you for being here, Minister and gentlemen.

Please proceed, Minister.

Justice

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Mr. Speaker, I share the hon. member's concerns. As part of this government's crime fighting agenda, we have introduced Bill C-32 to better crack down on impaired driving in our country. We are giving police the tools they need to better detect drug impaired drivers. We are increasing the penalties for drug impairment.

This is one part of the government's crime fighting initiative, but I want to assure Canadians we are just getting started.