Bill C-46 (Historical)

An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts

Part 1 amends the provisions of the Criminal Code that deal with offences and procedures relating to drug-impaired driving. Among other things, the amendments
(a) enact new criminal offences for driving with a blood drug concentration that is equal to or higher than the permitted concentration;
(b) authorize the Governor in Council to establish blood drug concentrations; and
(c) authorize peace officers who suspect a driver has a drug in their body to demand that the driver provide a sample of a bodily substance for analysis by drug screening equipment that is approved by the Attorney General of Canada.
Part 2 repeals the provisions of the Criminal Code that deal with offences and procedures relating to conveyances, including those provisions enacted by Part 1, and replaces them with provisions in a new Part of the Criminal Code that, among other things,
(a) re-enact and modernize offences and procedures relating to conveyances;
(b) authorize mandatory roadside screening for alcohol;
(c) establish the requirements to prove a person’s blood alcohol concentration; and
(d) increase certain maximum penalties and certain minimum fines.
Part 3 contains coordinating amendments and the coming into force provision.

Criminal Code

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Madam Speaker, that is a good question. Again, it shows the lack of preparation that the government has had in putting this bill forward. When it comes to alcohol, they have specifically laid out those limits in the bill, and laid out the process.

If we are going to use the timing method where the police come two hours later, they will be able to measure how much the alcohol has lessened in someone's bloodstream. However, when it comes to the drugs, all the government says is that it will set the regulations later. It is a pretty clear indication that these guys have not done their work. They are talking about six different drugs, so I guess they are going to have to put in place six different frameworks to deal with those drugs. I do not know how the police are going to be able to handle that at the roadside, but the government is certainly dumping a big job on their heads.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, with respect to Bill C-226, which deals with random Breathalyzer tests, my understanding is that the member voted against that particular bill. I would be interested in hearing his explanation as to why he chose to vote that way.

We have organizations such as the Canadian Association of Chiefs of Police saying that the legislation is in general very good. It is action that they have been calling for, something which the Conservatives sat on and did nothing about. Why would it not be a good thing to be responding to some of the needs that our professional organizations, such as the Canadian Association of Chiefs of Police, are calling upon the government to do?

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Madam Speaker, when it comes to the terms of limits or whatever, I think we need to take a look at that balance of dealing directly with an issue that has so many negative consequences across Canada. As I mentioned earlier in my speech, there is not one of us who has not suffered from the pain and agony of someone who has been involved in impaired driving situations and accidents. However, on the other hand, we also have the obligation in this country to acknowledge the charter. The Liberals should be the last ones who are refusing to do that. In this case, I believe we need to take the charter into account. That is another question that should be asked.

The minister said that she has no opinion from her Department of Justice. She perhaps should have gone further than that to get a solid opinion. We know that this is going to end up in court. Everyone has known that, right from the minute it was introduced. People are going to try to hold the government to account on this issue. The government should have done more homework on it. It is just one more place where, in my opinion, it did not do its homework before it introduced these two pieces of legislation. I still think that in many ways Bill C-46 is meant to be a cover for the government bringing in a badly prepared Bill C-45 that would legalize cannabis.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, I am struck by two things with respect to this issue. The first is that we had a private member's bill that dealt with many similar issues which had already progressed through the committee stage. The government voted to kill that bill in favour of bringing forward a government bill that was different but in many ways similar. The Liberals complain about how in their view the Standing Orders do not provide them with enough ability to advance government legislation. If they actually considered the ideas that come through private members' business, maybe they would not have to go through the process of reintroducing some of the legislation, although with certain modifications that we certainly have concerns about.

The second is that in this legislation there is a presumption that the technology is there for impairment testing around marijuana and that it is somehow analogous to alcohol in terms of the relative ease of impairment testing. The reality is that these are different substances with different kinds of impacts. Marijuana is fat-soluble, which means it is retained in the brain, even if it is much less present in other bodily fluids from a testing perspective. This creates major concerns when we establish a test through bodily fluids for determining impairment. There may be impairment, even if it is not showing up in high levels of bodily fluid, but it may show up in higher levels in those fluids when there is not as much impairment.

I wonder if the member can comment on these two major problems with the way the government is proceeding.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Madam Speaker, I think the issue with the private member's bill is a very important one. The government could have moved ahead with that bill, supported it, and worked with its author to make the amendments it needed. However, it seems that the government needed to have something that it could put forward. This makes my argument that it is using this as a cover for what is poorly done in Bill C-45.

In terms of the testing, it is not just with respect to alcohol and cannabis. We need to understand that it is talking about the types of drugs that will be tested for impairment, which include depressants, inhalants, dissociative anaesthetics, cannabis, stimulants, hallucinogens, and narcotic analgesics. Therefore, there are a whole host of things that will have to go on there before police officers would be able to do their job along the side of the road. The government will need to think through its process here to see if it can come up with something more simple and more easily achievable for our policemen and policewomen who are on the road.

[Peter Kent, Conservative, Thornhill, ON]

Madam Speaker, I have a very short question for my colleague. I thank him for listing the litany of concerns that I know are shared by members on both sides of the House beyond the front benches and the parliamentary secretary.

You talked about dumping the regulations for protocols—

[The Assistant Deputy Speaker, NDP, Carol Hughes]

If the member would address the Chair, please. I can tell him that I did not list those items.

[Peter Kent, Conservative, Thornhill, ON]

Madam Speaker, through you to my colleague, he mentioned the dumping of the regulations for protocols and procedures in the testing regimes. However, I wonder if he could talk about the costs that the government would be dumping on to the provinces, law enforcement, the cities, and municipalities in different parts of the country, just as the costs for the regulation and security of distribution were dumped .

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Madam Speaker, there are a whole host of costs here. The government is not answering the question as to who would be paying for them. We talked about the necessity for educational programs. The task force identified that. The government is not identifying whether it would be paying for that or what that would look like. There would be medical costs if there is to be roadside testing. There would be medical personnel involved specifically with respect to blood testing and medical costs incurred with that, as well as training costs.

The government claims that it wants to keep drugs away from our young people, for which there will have to be a major program. Some of the programs that are already in place are effective, yet the government has decided that it is not interested in following those.

As well, there will certainly be extended legal costs across the country, and we need to know who would be paying for those: the municipalities, the provinces, the government, or the taxpayer of Canada.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for London—Fanshawe, Veterans Affairs; the hon. member for Drummond, Public Services and Procurement.

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

Madam Speaker, I am pleased to rise to speak on Bill C-46.

Bill C-46 is a very large bill. It is a complex bill. It purports to amend many sections of the Criminal Code relating to impaired driving, among other offences. In the 20 minutes that I have, I will not have the opportunity to address all aspects of the bill.

However, let me say at the outset that there are some good aspects, some positive aspects to Bill C-46. At the same time, there are also issues that I believe are a cause for concern. There is no doubt that once this bill is voted on at second reading, it will make its way to committee. After all, it is government legislation and we have a majority government. What is important is that it is carefully studied and reviewed at committee.

There are two main parts to Bill C-46. Part one deals with drug-impaired driving and drug-impaired offences, and part two deals with transportation offences in the Criminal Code and alcohol-impaired driving.

With respect to drug-impaired driving, among the things that Bill C-46 would provide for is to allow law enforcement, upon having a reasonable suspicion that a motorist is drug impaired, to require a motorist to undertake a screening test to determine whether they are in fact drug impaired. It would be an oral saliva test. It would detect THC levels in the individual.

Additionally, the government has put forward recommendations with respect to three new offences related to drug-impaired driving that would relate to levels of THC. There are some issues of concern with respect to the approach that the government is undertaking in terms of measuring impairment by THC levels. After all, there is not necessarily a direct correlation between THC levels and impairment. THC can depend on any number of things, including how THC came into the body. Also, in terms of whether an individual is a regular user of marijuana or an occasional user, that can impact upon THC levels in the body.

We know that THC can remain in the body, sometimes for days, even weeks, following marijuana use. One of the problems with toxicology tests in the case of marijuana, in terms of THC, is that they tell us that someone used marijuana, but they do not necessarily tell us when they used marijuana, much less whether they are impaired. That is a problem.

It is a problem in the case of the recommended offences that the government has put forward, because it is possible that an individual could have relatively low levels of THC but be impaired to get behind the wheel. In other cases, individuals with higher THC levels might not be impaired, perhaps because they are a regular user of marijuana, again, having regard for the fact that THC can stay in the body for an extended period of time.

It really is a concern that the science is not there. It is not in place to undertake, in all circumstances, a fully accurate assessment when it comes to whether someone behind the wheel is in fact drug impaired.

More broadly on the issue of drug impairment and what impact legalization is going to have on the safety of our roads, let me say what is clear. With legalization, more and more Canadians are going to use marijuana. I do not think anyone disputes that reality. As a result, more and more individuals are going to be on the road who are drug impaired. The consequence of that is that there are going to be more injuries, more deaths, and more carnage on our roads.

One need only look at, for example, the state of Colorado, which, a few years back, legalized marijuana. In the first year following the legalization of marijuana in the state of Colorado, motor vehicle deaths attributable to drug impairment increased by a staggering 62%. In the years since, we have seen an increase overall, a noticeable increase in deaths and injuries attributable to drug impairment in the state of Colorado. That is exactly what we have to look forward to in Canada, courtesy of the government's legalization legislation.

In the face of those kinds of statistics and evidence from nearby jurisdictions, what is the government's plan to deal with issues like keeping our roads safe? It is nice and well to introduce a bill, as flawed as it is in so many respects and with as many unanswered questions as there are, but it is quite another thing to say, once the bill is passed and becomes law, as it almost certainly will, what we are actually going to do when it comes to enforcement and keeping our roads safe.

The answer is that the government does not have a plan. There is no plan to train police officers. There is no plan in terms of assisting municipalities with getting roadside screening devices. As I understand it, there is even some question as to whether there is a ready, usable, reliable roadside screening device that could be utilized today. Notwithstanding that, all we get from the government is a rushed, fixed, arbitrary timeline of July 1, 2018, to move forward with marijuana legalization.

With so many unanswered questions, there seems to be only one plausible explanation for why the government would be moving forward with the July 1, 2018, timeline. I guess it is so that the government can say that it actually kept one promise from the 2015 election campaign. Imagine that. We have a government that is putting politics ahead of public health and public safety. That really is an abdication of leadership by the government and all Canadians should be concerned.

I want to turn to the second part of Bill C-46, which deals with alcohol-impaired driving. There are some good aspects to the second part of Bill C-46. Among the changes brought forward by Bill C-46 is to strengthen some penalties for alcohol-impaired driving. Among the changes would be to increase the maximum penalty for individuals who drive impaired and cause death, from a maximum term of imprisonment of 14 years, up to life behind bars.

I commend the government for moving forward with that change. It sends the right message that when one chooses to drink and then drive, it is more than just a bad choice. It is a serious crime with serious consequences that can result, and far too often has resulted, in the loss of lives. In that regard, it is perfectly appropriate to say that individuals who commit such a crime need to be held, must be held, to the fullest extent of the law with a penalty of as long as life behind bars.

One of the biggest changes in Bill C-46 is in respect to mandatory alcohol screening. This is a major change. I know there are differences of opinion, including in my own caucus, on this issue, but whatever one's view of mandatory alcohol screening is, one must recognize that this constitutes a significant shift in the law. It really changes the relationship between an individual and law enforcement. Arguably, it reverses the presumption from the presumption of innocence to the presumption of guilt. While my mind is open to mandatory alcohol screening, I believe that caution is required, having regard for the significant infringement on individual liberty that mandatory alcohol screening will mean.

At present, law enforcement can require a breath sample when the officer has a reasonable suspicion that the individual has alcohol in his or her system. There are some who would argue that mandatory alcohol screening, which would do away with the requirement of a reasonable suspicion, is really not that big of a change. They would note, and rightly so, that driving is not a right; it is a privilege. It is a highly regulated activity. In that regard, a police officer can stop a vehicle, at random, to ask for the driver's registration or proof of insurance, or to assess their sobriety.

What Bill C-46 would do is replace the requirement of reasonable suspicion with saying, effectively, that a police officer could require a breath sample from a motorist at any time, anywhere, under any circumstances, absent even the slightest level of suspicion.

I would submit that what we are talking about is a fairly significant infringement on an individual's liberty. It is something far more significant than a police officer merely stopping a vehicle on the road, asking for the vehicle registration, and in the course of conversing with the individual motorist, determining that the person seems to or may have alcohol in their system, and consequently requesting that the individual undertake a breath sample.

In the case of mandatory screening, we are talking about a mandatory bodily sample, absent even the slightest level of suspicion. Whether that is a good thing or a bad thing, a needed thing or not, it is a big change.

It is something that certainly would contravene section 8 of the charter, the right against unreasonable search and seizure. It is quite possible and I know the Minister of Justice has said that the Department of Justice lawyers have advised her that it would be upheld under section 1 of the charter. Professor Hogg, an esteemed constitutional expert, has given his opinion to suggest so similarly, but nonetheless, we are talking about a breach of charter rights, sections 8 and 9. Whether it is saved under section 1, that is a matter to be litigated, but it highlights the fact that we are talking about a breach of charter rights.

The question becomes whether it is justified, having regard for the seriousness of impaired driving and the, frankly, too many Canadians who have lost their lives on the road as a result of an impaired driver. We see the statistics, which are in some ways encouraging. Over the last 30 years, the number of people getting behind the wheel when impaired and causing injuries or death is being reduced. The numbers are going down, but nonetheless Canada's level of injury and death as a result of impaired driving is well above most other countries in the western world. It is a concern and as a result, there is a legitimate debate and reason to have a serious look at mandatory alcohol screening.

In terms of determining whether or not mandatory alcohol screening is justified, having regard for the charter rights of Canadians, one must look at the powers that law enforcement presently have and assess whether law enforcement officers are using all of the powers that they have. What is, for example, reasonable suspicion? Reasonable suspicion is not a reasonable suspicion that an individual is over the Criminal Code limit of 0.08. Reasonable suspicion is not a reasonable suspicion that an individual is impaired. Reasonable suspicion is a reasonable suspicion that an individual has alcohol in their system. That is an incredibly low threshold.

To that end, police officers, in order to establish reasonable suspicion, can do any number of things upon lawfully stopping a vehicle. Factors such as red eyes, the smell of alcohol on a motorist's breath, an admission of alcohol use, all of those things and other factors would go toward establishing reasonable suspicion. They do not require a mandatory alcohol test.

I know there have been some statistics brought forward that say mandatory alcohol screening will reduce impaired driving, the number of deaths and injuries, but also at the same time point to the fact that according to some statistics about 50% of the time law enforcement does not detect an impaired driver by simply talking and interacting with the motorist.

Those are issues that need to be addressed. They need to be fleshed out. It is why I support the bill in principle and support sending it to committee for further study and further review. While there are some good aspects to the bill, there are also many unanswered questions that need to be answered, and frankly, it probably requires many amendments to get the bill right.

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

Madam Speaker, I would like to thank the member for St. Albert—Edmonton for his support in principle of Bill C-46. I, like him, am looking forward to the bill's coming before the justice committee to listen to some experts.

I want to respond to one of the concerns the member raised. I want to assure him that the legislation as proposed only authorizes the minister to approve a device. I want to reassure him that approval is based on a recommendation from the Canadian Society of Forensic Science, which has a drugs and driving committee. It looks at the best available science and at all of the devices, and they are put through the most rigorous testing standards before they are recommended by the committee to the minister.

The legislation as proposed only authorizes the minister to approve a device, but that approval is dependent entirely on the recommendation of the Canadian Society of Forensic Science and based on the best available advice and science. I wanted to provide the member with that assurance and I hope that allays some of his concerns.

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

Madam Speaker, I want to thank the Parliamentary Secretary to the Minister of Justice for his work on this incredibly complex file. He certainly brings a lot of background, depth, and experience, and I thank him for that.

I would say that it nonetheless highlights, though, that the science is not necessarily there in terms of a device that is ready to go. To that end, I will quote the Canadian Centre on Substance Use and Addiction, which says:

Although the accuracy of oral fluid screening devices has been improving, they are not perfect. Some drivers who have used drugs will test negative and there remains a small probability that some drug-free drivers will test positive. When a driver who has used drugs is missed by the screening procedure, it has implications for road safety...

That is from the Canadian Centre on Substance Use and Addiction, and it highlights the fact that there is still work to do in terms of ensuring that we have screening devices that provide a consistent scientific method of detecting impairment.

[Colin Carrie, Conservative, Oshawa, ON]

Madam Speaker, I want to let my colleague know that I agree with him 100%. For the Conservative government, the health and safety of Canadians was always the priority, and he is bang on when he says the science is not there.

With all due respect to my colleague across the way, when we look at the science that is out there, it is new. It really has not been tested. It has been tested in very few jurisdictions. When we look at something as complicated as driving while impaired, the tests just do not live up to what Canadians are expecting for maintaining safety. Parents have asked me about school bus drivers. Union members have talked to me about heavy equipment.

We know that for alcohol, the tests cost pennies per test. So far, we know a marijuana swab is going to cost somewhere between $20 and $35, and then there will be a cost on top of that for the blood test.

I want to ask my colleague to tell us who is going to pay for these costs. Who is going to pay for the training of the officers, for the toxicology, for the tests? My community is worried that these costs are going to be downloaded to the provinces and municipalities.

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

Madam Speaker, the hon. member for Oshawa raises a very good point. It goes back to my earlier point that while the government is moving forward with legislation, at this time there does not seem to be plan for implementation and enforcement, or to the degree that there is one, it is coming up short.

In terms of the costs, there are significant costs to this measure. My hon. friend mentioned blood tests and screening devices, equipment that police departments have to acquire. Who is going to pay for them? At this point in time, it seems it is largely the municipalities that are going to pick up the tab. There is absolutely no funding commitment from the government.

In terms of police officer training, my hon. friend and others mentioned that testing for drug impairment is far more complex than testing for alcohol impairment. It requires significant training. Right now there are approximately 600 officers who have this training to meet the impact of legalization. That number has to reach, it is estimated, at least 2,000. Again the question is about who pays for it, and again it is the provinces and municipalities. The government would like to pat itself on the back and say it kept a promise while downloading so much of the responsibility to the provinces and municipalities.