Bill C-349 (Historical)

An Act to amend the Criminal Code and to make consequential amendments to other acts (criminal organization)

This enactment amends the Criminal Code to provide that the Governor in Council may establish a list of entities consisting of criminal organizations. It also makes it an offence for anyone to wear the emblem of a listed entity in order to establish his or her membership in such an organization.

Criminal Code

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, I thank my colleague for a thoughtful speech. I think it covers a lot of the main issues.

This is a modern, progressive country, and I am actually pleased to see the government moving forward on legalizing cannabis. It is the right move to make. It takes some political courage and actually reflects what the majority of Canadians want to see as law in this country.

Of course, crafting that law has a lot of other aspects to it, including modernizing and updating our Criminal Code when it comes to impaired driving. We all know that police have had difficulty in our country enforcing impaired driving provisions when it comes to drugs. That will lead into my question about marijuana.

One of the difficulties technologically is coming up with adequate testing to make sure we are measuring present impairment, as opposed to just picking up the presence of THC in a person's body that could indicate previous ingestion but not necessarily impairment at that time. I wonder if my hon. colleague would comment on what provisions in the bill he thinks would be helpful in making sure that we can keep impaired drivers off the road but not improperly interfere with or criminalize people who are not impaired.

[Raj Grewal, Liberal, Brampton East, ON]

Madam Speaker, I think we can all agree that we want to protect Canadians and at the same time protect their charter rights. The bill achieves that delicate balance.

First and foremost, it requires an officer to have reasonable grounds before conducting a test, which is still the current law when it comes to impaired driving. I think we can all agree that the definition of reasonable grounds has been studied quite extensively by the Supreme Court of Canada.

Before an officer conducts a test, there must be reasonable grounds before an individual is asked to circumvent their freedom, their liberty, by giving a sample of saliva. That is a balance the bill achieves. We think that going forward, it is a common-sense approach to protecting Canadians.

[The Assistant Deputy Speaker, Carol Hughes]

Before resuming debate, I want to advise that the time allotted for 20-minute speeches has expired and we are now going to 10-minute speeches.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, I hear the groans of disappointment from my colleagues across the House.

Canada's New Democrats have long stood for effective measures to stop impaired driving, the leading cause of criminal death in Canada. We have always supported legislation and policies that give the police the tools they need to save lives by keeping drunk drivers off our streets. With one of the worst impaired driving records in the OECD, we need new evidence-based initiatives to stop impaired drivers in their tracks. Given that our impaired driving laws have historically been focused on alcohol consumption, there is a clear and pressing need to update the Criminal Code to prevent an increase in cannabis-impaired driving as recreational cannabis is legalized in the months and years ahead.

That is why Canada's New Democrats look forward to studying the legislation at committee, and working with experts and stakeholders of all types across Canada to help ensure the legalization of recreational cannabis, and indeed medicinal cannabis, will not lead to an increase in impaired driving. Ultimately, we will need a far more sophisticated regime to address cannabis-impaired driving than we currently apply to alcohol. That is because cannabinoids possess relatively unconventional pharmacokinetics, meaning the process by which a drug is absorbed, distributed, metabolized, and eliminated by the body, particularly compared to alcohol.

This poses a number of distinct enforcement issues. Unlike with alcohol, peak THC blood levels do not necessarily correspond with the subject's maximum levels of behavioural impairment. This phenomenon is defined as counter-clockwise hysteresis, meaning that the effects of the psychoactive substance lag behind observed maximal drug concentrations. This phenomenon is contrary to the pharmacokinetic profile of alcohol, whereby peak blood alcohol levels positively correspond with the subject's peak level of drug impaired performance.

Also unlike alcohol, cannabis has a variety of medicinal applications and can be authorized for use by physicians in Canada. That is the case presently. At the end of 2016, there were some 130,000 Canadian patients authorized and prescribed to use medicinal cannabis. Since the very first Canadian veteran was reimbursed on compassionate grounds in 2007, Veterans Affairs Canada now covers the cost of medicinal cannabis for over 3,000 Canadian veterans. That is why, as the NDP's health critic, I would like to use this opportunity to specifically examine the bill's potential impacts on Canadian patients who are legally authorized to use medicinal cannabis.

Last summer, in response to the Federal Court's decision in Allard v. Canada, Health Canada announced the access to cannabis for medical purposes regulations. The ACMPR replaced the previous regulations governing Canada's medical cannabis program, and came into force in August of 2016. These regulations were designed to provide the immediate solution required to address that court judgment. However, they were not meant to be comprehensive and they did not provide guidance on driving restrictions for patients.

That is why Health Canada was clear that these regulatory changes “should not be interpreted as being the longer-term plan for the regulation of access to cannabis for medical purposes, which is presently being determined as part of the Government’s commitment to legalize...regulate and restrict access to marijuana.” Indeed, new regulations specifically dealing with the operation of motor vehicles for medicinal cannabis patients will be necessary to supplement the legislation before us today.

Constructing effective cannabis driving regulations will require us to understand the unique properties of the effects of ingesting cannabis.

Following consumption, THC accumulates rapidly in body fat, where it is stored in various tissues and then slowly redistributed to the blood. While occasional, i.e., recreational, consumers of cannabis will likely test negative for the presence of THC in blood within 12 hours following inhalation, THC's lipid solubility may cause some chronic users, such as those legally authorized to consume cannabis therapeutically for the treatment of a chronic medical condition, to potentially test positive for residual concentrations of THC even after several days of abstinence, long after any behavioural influence of the substance has worn off.

Chronic consumers may also experience intermittent spikes in THC blood levels in the absence of new use during this terminal elimination phase. The potential presence of residual low levels of THC in the blood, combined with the possibility of periodic increases in THC blood levels absent use, may potentially confound the ability of toxicologists or prosecutors to interpret whether the presence of THC in the blood in a single sample is evidence of new cannabis consumption by an occasional consumer, or instead, indicative of past consumption by a more frequent user.

Because the process by which cannabis is absorbed by the body may be influenced by the subject's prior pattern of use, as well as by the specific route of cannabis administration, rather than solely by the single use of cannabis itself, the U.S. National Highway Traffic Safety Administration said, “It is difficult to establish a relationship between a person's THC blood or plasma concentration and performance impairing effects.” Therefore, under the cannabis-specific per se standards being proposed by the legislation, the detection of THC or its metabolites could result in a criminal conviction regardless of whether the defendant has recently consumed cannabis or whether the crown can establish that a person was behaviourally impaired by cannabis.

Given that the legal use of cannabis will soon be sanctioned by the federal government, we must be cautious that traffic safety laws, in order to be equitable, impartial, and effective, mandate sufficient evidence of a subject's cannabis use immediately prior to driving, as well as objective evidence of behavioural impairment as a legal requirement. Such requirements would ensure that the traffic safety laws are not inadvertently punishing unimpaired individuals who have engaged in the legally protected behaviour of consuming medicinal cannabis and we must make sure that we catch and prosecute impaired drivers who are impaired by cannabis.

Indeed, the omission of such requirements would have particularly negative impacts on those authorized to use medicinal cannabis since those patients will never be able to know with certainty that the THC presence in their blood is below the per se limit, even if they have not consumed cannabis for days prior to driving. This could have serious unintended consequences for thousands of patients.

I want to pause for a moment and comment on the legal test that the bill proposes for police officers prior to their requiring a blood sample. My understanding is that the test being proposed is that a police officer must have “reasonable suspicion” of ingestion of cannabis or impaired driving prior to requiring drivers to subject themselves either to roadside tests or subsequent blood sampling. That, of course, is a lower standard than the current test of “reasonable and probable grounds”, which is much more common in the Criminal Code.

I, for one, will be very interested in hearing from experts both on the constitutional enforceability of such a standard, as well as some of the policy considerations around it. Personally, I can state that I do not have a problem with a lower standard before a police officer can require a sample from a driver, because I believe that the overarching public interest in keeping cannabis-impaired drivers off the road takes precedence in that case. However, we still must be sure that random testing or the testing of drivers in the absence of objective evidence of some type is prohibited.

It is axiomatic that we need a clear and consistent set of rules for cannabis impairment so that we can ensure that we have an effective law to target and prevent impaired driving in all of its forms. Equally, it is common ground that impaired driving is a deadly, senseless, and preventable crime. As legislators, I think our first obligation is to keep our streets safe and do everything we can to make sure that, as the government moves to legalize cannabis, we have smart, effective, targeted legislation that is geared toward keeping those drivers off the road, giving our police officers the tools they need to adequately and effectively enforce the law, and strike the balance to make sure that Canadians' rights are protected.

I sincerely hope that members from all parties will work together to study the legislation at committee, with the goal of making it the most effective law possible and effectively addressing impaired driving caused by cannabis and all other intoxicants.

With so much at stake, let us work together to get this right.

[Bill Blair, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I wish to thank the member for his support and for his expressions of concern with respect to Bill C-46. It is very helpful in advancing a very important debate about public safety.

I was hoping to tap into the member's experience as a long-standing parliamentarian here in the House, and just ask him if he may have some recollection of this. In 2010, the justice committee as it then existed, unanimously brought forward a report recommending to the House the adoption of what was then termed “random breath testing”. My understanding is that, in 2012, two years later, the then leader of the opposition, now the leader of the member's party, asked the then justice minister and the prime minister of the day why they had not acted.

With the unanimous recommendation in the last Parliament, based on strong evidence that this measure of the implementation of a new random breath testing regime would save lives, does the member have any recollection as to why it was not acted on in that previous Parliament?

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, I would like to first thank the hon. member for his hard work on this file in crafting legislation that is groundbreaking in many ways but also complex. He has done a great job of putting a piece of legislation before the House that strikes a very good balance. It may be able to be improved, but certainly the member has gotten us very close to the finish line on the bill. I would also like to thank him for the service he has given to our communities as a long-standing police officer and chief of police.

To be quite frank, I am not sure I can answer the member's question adequately because it would require me to peer into the minds of the previous government, which I am not really capable of doing.

[An hon. member]

You don't want to go there.

[Don Davies, NDP, Vancouver Kingsway, BC]

Yes, Madam Speaker, it is a dangerous neighbourhood, I think, to walk in.

However, I will say that one thing all members of the House from all sides can agree on is that we understand the gravity of impaired driving in all its forms. We want to do everything we can as national legislators and parliamentarians to make sure that we keep our streets safe and give our safety officers the tools they need to do so. If anything, we want to err on the side of caution and make sure we do everything we can as we legalize cannabis to ensure our streets are just as safe as, if not safer than, they are today.

[David Christopherson, NDP, Hamilton Centre, ON]

Madam Speaker, my friend's excellent speech was well thought out, and accurately portrayed some of the trepidations that people have while recognizing that going forward is the right thing.

It may be that the member cannot answer my question and I accept that, but one of the things that struck me about this is that ideally what we would all like to have is the same as we have with the breathalyzer: a reliable, legally calibrated breathalyzer that will stand the test. Everybody was hoping that would be found for THC, and it has not. Maybe the government needs to answer my question, not my friend, but if he knows I would like to hear his thoughts.

Maybe it is happening, but I am surprised that some of the jurisdictions around the world have not pooled their efforts together to try to find this scientific solution, rather than each of so many countries reinventing the wheel in terms of trying to identify some way of accurately finding out what THC levels are in anyone who happens to be pulled over.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, I also want to congratulate and thank my hon. colleague who has not only served the House for a long time but was solicitor general in the Ontario government, and is very attuned to issues of justice and making sure our justice system is working well, both in terms of enforcing the law and in defending the rights of Canadians.

It is an excellent point that he raises, which is to recognize that there are other jurisdictions in the world that are struggling and grappling with enforcing impaired driving laws in a world where people are impaired by substances other than alcohol. Exploring the experiences of other jurisdictions will be a very helpful mechanism as the bill goes through the House and to committee. I will say, though, that issues of testing technology and whether it is capable of measuring present impairment versus metabolites is a very important concept, and I am hoping that this process as it unfolds will help us craft a very effective—

[The Assistant Deputy Speaker, Carol Hughes]

Resuming debate, the hon. member for Guelph.

[Lloyd Longfield, Liberal, Guelph, ON]

Madam Speaker, I am pleased to participate in the debate on Bill C-46, legislation that would have a significant positive impact on public safety. We are having a great discussion in the House on this today and I am glad to be a part of it.

In the time that I have available, I want to focus my remarks on the proposed new part of the Criminal Code, part VIII.1, on offences relating to conveyances. It would replace all the existing transportation offence provisions in the Criminal Code with a simplified and modernized part, which I believe will be better understood by all Canadians. Before discussing these changes, I believe it is necessary to understand how the current Criminal Code provisions dealing with transportation offences have developed and why there is a desperate need for modernization.

Driving while intoxicated by alcohol has been an offence since 1921, and driving while under the influence of narcotics became an offence in 1925. There have been countless amendments since then which include: creating the offence of being impaired by alcohol or a drug, in 1951; creating the over 80 offence, in 1969; authorizing demands for roadside screening breath tests, in 1976; enacting the offences of impaired driving causing death and causing bodily harm, in 1985; and in 2008, limiting the so-called two beer defence and strengthening responses to drug-impaired driving.

Unfortunately, these various piecemeal reforms have not always worked well together or kept up with improvements in technology. In particular, the provisions with respect to proving blood alcohol concentration reflect the technology that existed 50 years ago and not the modern electronic breathalyzers.

The current provisions are also very hard to understand, even for practitioners. This has long been the case. Indeed, the Law Reform Commission, in its 1991 report “Recodifying Criminal Procedure” wrote that some of the impaired driving provisions had become virtually unreadable. The current Criminal Code provisions are a minefield of technicalities that make the detection and prosecution of impaired driving cases, particularly with respect to the proving blood alcohol concentration provision, unnecessarily complex.

In the typical trial, the fundamental facts that prove guilt are not in dispute. The person was driving and the person blew over 80, yet impaired and over 80 trials are clogging the courts and are taking too long to conclude, in part because our laws are unnecessarily complex. It is time to clean up the provisions and focus trials on the relevant issues.

Under the new part of the Criminal Code, all of the offences are set out in sections that are easier to read and understand. For example, the provisions would set out the simpliciter offence first, then the offence involving bodily harm, and finally, the offence causing death. Under the new part, a person would not, for example, be charged with dangerous driving causing death while fleeing the police as in the current law. Instead, they could be charged with dangerous driving causing death and with fleeing the police, which are two distinct offences.

The penalties and prohibitions are also grouped so that consequences of the offences are clearly rationalized. There are mandatory minimum penalties and mandatory prohibitions for impaired driving and the refusal offences, but there are no mandatory minimum penalties or prohibitions for the other offences. It gets complicated. The mandatory minimum penalty regime for impaired driving and refusal offences makes sense from a policy perspective.

First, unlike many other offences that can be committed in a number of different ways and capture a broad range of offenders, impaired driving offences always require voluntary consumption of alcohol or an impairing drug and then making the deliberate decision to get behind the wheel, which puts all users of the road at risk.

The minimum penalties are also well tailored, starting with a fine only for a first offence but certain jail time for those who reoffend. This type of certainty provides a clear deterrent effect.

Some offences would not be re-enacted under the new part. Failure to keep watch on a person being towed or towing a water skier at night are summary conviction offences that are rarely charged. Removing them would leave no gaps in the law. If the activity is carried out in a dangerous manner or results in bodily harm or death, the person could be charged with dangerous operation or criminal negligence in the appropriate cases.

Also, sailing with an unsafe vessel or flying an unsafe aircraft are summary conviction offences that are not being re-enacted. Laying a charge for these offences requires the approval of the Attorney General of Canada. This activity is more regulatory in nature, and there are strict laws governing the safety of vessels and aircraft.

The provisions under the investigatory powers of the new part would provide new tools for the police. In particular, mandatory alcohol screening is expected to result in deterring more drinking drivers, and deterring those tempted to do so. Roadside oral fluid drug screening will detect drivers who have consumed cannabis, cocaine or methamphetamines, the impairing drugs that are most prevalent on Canadian roads which have been discussed earlier.

Under “Evidentiary Matters”, the new part addresses directly the most important causes of delay and litigation under the current provisions dealing with proving blood alcohol concentration. These are welcome changes given the significant challenges many jurisdictions are facing in terms of court backlogs. Bill C-46 sets out what has to be done to ensure that a breath test produces accurate results and provides a simple formula for determining blood alcohol concentration where the first test occurs more than two hours after the person has driven.

The new part also sets out what documents are to be disclosed as relevant to determining whether the approved instrument was working properly when the driver's breath was analyzed.

There are also improvements with respect to certificates. An accused who wants to cross-examine the qualified technician or an analyst who filed a certificate would have to explain why their attendance is necessary. This ensures there would be no fishing expeditions.

All of these provisions reflect the advice of the alcohol test committee, an independent committee which has been advising the Government of Canada on breath testing for alcohol for 50 years, and whose expertise has repeatedly been recognized by the courts, including the Supreme Court of Canada.

There are many other changes in the wording of the provisions. It would be tedious to list them all, but suffice it to say we need to clean up this legislation.

I am pleased to recommend to members that Bill C-46 be given second reading and be referred to the Standing Committee on Justice and Human Rights, so the committee can do its great work.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, certainly there are some good measures in Bill C-46 with respect to holding impaired drivers accountable. One of those measures is increasing the maximum penalty for impaired driving causing death from 14 years to life. However, what is missing from this bill is consecutive sentencing for individuals who get behind the wheel and kill multiple individuals. That was included in Bill C-226, introduced by the member for Bellechasse—Les Etchemins—Lévis. I was wondering if the hon. member for Guelph could comment on why consecutive sentencing is absent from Bill C-46.

[Lloyd Longfield, Liberal, Guelph, ON]

Madam Speaker, I thank the hon. member for the work that he does on the justice committee. I know that he will bring questions like this to the committee, and I am sure the committee will be able to get experts in to address those.

In general, I would say, rather than focusing on the sentencing provisions, what we are looking at is zero tolerance, and to make sure that people who have any drugs in their blood or saliva are not behind the wheel. When we look at mandatory screening, keeping people off the road is better than repeat offences, and the aim is to stop the offences from occurring in the first place.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Madam Speaker, I appreciate the member's contributions to this place, particularly his service on the industry committee, but I do think the member sidestepped the last question somewhat, so I am going to give him another chance.

If someone harms many individuals in an incident, the consecutive sentence recognizes that the punishment fits the crime. For example, the previous government worked to make consecutive sentences for human trafficking, so that someone would receive time not for a single incident but for multiple incidents. All would be taken into account when the person was sentenced.

This is not a mandatory minimum. This just recognizes that if someone gets behind the wheel and causes harm to many people, flexibility in sentencing is given to a judge to make sure that the sentence fits the crime.

Does the member believe there should be consecutive sentences in this area?