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

[Gabriel Ste-Marie, Bloc, Joliette, QC]

Madam Speaker, once again, I want to congratulate my colleague on the bill he is introducing this afternoon and on the courage it took to do so. Tackling organized crime is no easy feat.

I would like to remind the House that this bill has the support of the various police forces he mentioned earlier. This is what is needed to help fight organized crime.

I am shocked at the reaction of the three federalist parties that have spoken out against this bill. I am truly shocked. They tell us that they are fighting organized crime in theory, but when we come forward with a concrete measure based on what our police forces want, they all do nothing.

We were treated to all kinds of silly examples. The silliest, I think, came from the Conservatives who said that theatre groups dressed up as the Hells Angels should not be locked up. What a ridiculous example. I cannot believe it.

The government is telling us that it is going to legalize pot and that that will solve everything. Come on. What is this, anyway? The message being sent to Quebec this afternoon is that Canada is doing nothing to wipe out organized crime because the parties representing it are spineless, period. More than ever, I think the message is clear.

I am angry. I cannot believe it. We are looking at the principle of the bill. They are saying that they are opposed to organized crime in principle, but then they are finding all sorts of frivolous reasons not to support the member's bill. They are simply shirking their responsibilities.

There was a gathering of a criminal organization here in the region a few months ago. When people in the community in question were polled, they said that it was fine, that they were happy because the group was going to come and spend money in their community. People fear of organized crime and what it represents. It is up to us to be brave, to stand up, to show some backbone, and to change that . That is what my colleague is trying to do here, but the reaction of the other parties shows us that they are scared.

I think that members of organized crime who are watching the debate right now are saying that everything is fine, that they are going to stay in Canada, and that they will not have any problem supporting the three parties. Those parties are opposed to organized crime in principle, but in reality, they are doing everything they can to allow criminal activity to continue. That is unacceptable.

In closing, I want to once again commend my colleague from Rivière-du-Nord for his courage and for everything that the Bloc Québécois has done to eradicate organized crime.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

The member for Joliette will have seven minutes and 12 seconds to continue debate the next time the matter is before the House.

The time provided for the consideration of private members' business has now expired and the order is dropped to the bottom of the order of precedence on the Order Paper.

The House resumed consideration of the motion that Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, be read the second time and referred to a committee.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

The hon. member for Mount Royal had five minutes left for questions and comments.

Questions and comments, the hon. parliamentary secretary to the government House leader.

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

Madam Speaker, I appreciate the comments from my colleague from Mount Royal, who is very passionate about this issue.

My question for him relates to the importance of this to the different stakeholders, and I am thinking in particular of law enforcement agencies, that have been waiting for quite a while for certain aspects of this legislation. In good part, the legislation responds to outside experts in recognition of the fact that we need to modernize our Criminal Code to deal with this issue.

I wonder if the member could provide his thoughts on the importance of those stakeholder meetings that were conducted prior to the legislation being introduced.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, legislation is always improved when proper consultation is done beforehand.

When it comes to the infraction of driving while impaired, we need to listen to police and we need to listen to prosecutors. We need to listen to those who are charged with protecting us.

I am very pleased that this legislation would eliminate certain of the defences, bogus defences, that have been used by people to try to avoid being convicted of impaired driving, such as claiming, “Well, I drank right before I got in the car, so my blood alcohol level wasn't 0.08%”, or alternatively, “I rushed out of the car and drank a bottle of Scotch, but I didn't drink it before I got out of the car.” Changing it to if people reach these levels within two hours of the time they stopped operating a motor vehicle is an excellent idea, and it comes from talking to law enforcement in advance.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Madam Speaker, my question has to do with one of my concerns with this bill, which is with respect to drug-impaired driving. I know that on the alcohol side we have a roadside test in place where we can actually test and find out if people are impaired. However, we have not implemented the roadside saliva test, and there really is not good data with respect to that test showing at what level one is drug impaired, especially if the saliva is contaminated with alcohol at the same time. If we look at the time frame for the provinces to implement the roadside testing for alcohol to get the drunk drivers off the road, it was a couple of years. We are talking about legalizing cannabis next July, and there is not enough time to get all of the equipment and training in place, nor are there limits established.

Has the member seen a plan, and if so, could he give some details of the plan?

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, it is absolutely critical that the alcohol test committee approve the proper equipment. We are at the point where we are coming up with the proper equipment to be used to measure whether or not the saliva test shows the presence of drugs to provide the necessary proof to require a blood test. We need to train law enforcement officers. I think there is a plan to do that.

I also come back to what I said in my speech, which is that personally, I think that the bill has used a very scientific approach by looking at what has happened in other countries, and what other countries are doing with respect to both drugs and alcohol. My preference would be that we start with a zero tolerance on alcohol and on drugs. I know we are not starting from scratch, and it will be difficult to get there politically, but I am very open to discussing lower thresholds at committee for both drug and alcohol offences. I am glad to be on the justice committee to see this happen.

[Raj Grewal, Liberal, Brampton East, ON]

Madam Speaker, as I rise today to debate Bill C-46 at second reading, I am thinking of the people in my riding who have lost loved ones to impaired driving, as well as those who have been injured and whose lives will never be the same.

Sometimes when debating legislation in the House, we can lose sight of the real human impacts of our decisions. Impaired driving has done a lot of damage in a lot of communities. We are lucky if we do not know someone who has lost a loved one as a result of impaired driving. By making our laws in this area more effective, we can do a lot of good.

Let us talk about the bill. Bill C-46 would provide a new way forward to address impaired driving and would get drivers impaired by alcohol or drugs off our roads. That is something, fundamentally, we can all agree on in this House.

Impaired driving has been an issue for a long time. We know that drug-impaired driving has become a growing problem over the past decade. It is not any specific age group causing the problem. Indeed, this is one of those issues that transcends age, gender, and socio-economic status. What we need are wholesale behavioural changes backed by comprehensive, evidence-based policy and regulation and further public education.

I am proud to stand with a government that is taking action to tackle this issue in an informed and forceful way, as reflected in this bill. I am very proud to know that Bill C-46 is a product of a great deal of legwork by many departments, including the departments of justice, health, and public safety. The Task force on Cannabis Legalization and Regulation has been central to these latest efforts through their engagement with law enforcement and many other partners across the country.

Indeed, I extend my heartfelt thanks to the dedicated women and men on the front lines dealing with the tragedy of impaired driving every day, including the roughly 4,000 officers trained to perform the standardized field sobriety test.

However, we know that more needs to be done. There is a vacuum to be filled, especially in terms of creating drug-impaired driving limits, the tools to detect these violations, and the legal teeth to clamp down on offenders. That is why the Government of Canada began by requesting that the Drugs and Driving Committee of the Canadian Society of Forensic Science assess the validity of oral fluid drug screening technology.

They agreed that the technology reliably detects THC, cocaine, and methamphetamines, these being the drugs most frequently abused by Canadians. However, this is only one piece of the puzzle. The technological tools needed to detect impairing substances must be accompanied by a legal framework that provides for their effective use. That is one important way this bill would create a stronger impaired driving regime. It would authorize law enforcement, at legal roadside stops, to require that a driver provide an oral fluid sample if the officer had a reasonable suspicion that a driver had drugs in his or her body. That could mean redness in the eyes or an odour in the vehicle, for example. The screener, which has a disposable oral fluid collection kit and a reader that analyzes the saliva, would then help the officer check for the presence of particular drugs in the oral fluid.

A positive reading on one of these devices would be information an officer could use to develop reasonable grounds to believe that an offence had been committed. At that point, the driver could be required to either provide a blood sample or to submit to a drug recognition evaluation by an officer to determine whether a criminal offence had been committed.

The bill would create three new criminal offences. It would allow law enforcement to charge those who had a prohibited level of drugs in their blood within two hours of driving. This would be proven by the blood sample. Drivers could also be charged if they had a prohibited level of drugs and alcohol in combination. Importantly, this bill would allow for mandatory alcohol screening. That means officers would be able to require a preliminary breath sample from any driver they stopped in accordance with the law.

Evidence tells us that this is an important tool for detecting impaired drivers and for reducing the rate of impaired driving. This has been demonstrated by studies in other jurisdictions where the system is in place, such as Australia, New Zealand, and several countries in Europe.

Most of the proposed new offences would be punishable by penalties that mirror the existing penalties for alcohol-impaired driving: $1,000 for the first offence; 30 days in prison for the second offence; and 120 days for a third or subsequent offence.

Much will be made in comparing this tough new legislation with our international counterparts. The United Kingdom, for example, introduced legislation last year that created legal limits for drugs and authorized screeners that detect THC and other drugs, which has resulted in more effective enforcement. Other countries, including Australia, France, Germany, and many more, have similar legislation in place and have also found it effective in preventing drug-impaired driving.

For Canada, the other piece of the puzzle will be making sure that misinformation and misperceptions are addressed. We absolutely must educate the public in a comprehensive way. Public Safety Canada has already launched an effective social media campaign to encourage sober driving and to amplify messages from partners, such as Mothers Against Drunk Driving, which does phenomenal work.

To complement this new legislation, a comprehensive public awareness campaign is under development to inform Canadian youth and parents of youth about the risks associated with drug-impaired driving. I am confident that the government will use this opportunity to address misconceptions, correct misinformation, and promote prevention.

This is about safer roads for our communities from coast to coast to coast. Getting impaired drivers off our roads is the number one priority of all parliamentarians. It is encouraging to see the positive response to this legislation thus far and the willingness of so many partners to act together on this crucial issue.

As I said at the outset, real lives have been turned upside down by impaired driving, and of course, real lives have been tragically ended by it. We need to make it stop.

I thank my hon. colleagues for their attention. I look forward to seeing the common-sense provisions in this bill applied on our roads for the benefit of all Canadians.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Madam Speaker, the question I have has to do with mandatory testing. When I was director of engineering at Suncor, we had a zero drug and alcohol policy. One of the things we wanted to implement at that time was mandatory random drug and alcohol testing. In fact, at that time, it was not considered to be allowed by the courts. They maintained that it was against people's personal privacy rights, and we were not able to implement it.

I wonder if the member could comment. I see that there is mandatory roadside testing in this bill. What is the current situation in the courts, and will this be allowed or will it be challenged?

[Raj Grewal, Liberal, Brampton East, ON]

Madam Speaker, I think we can all agree that more needs to be done to protect Canadians from the ill effects of impaired driving and drug-related offences. I think we have a consensus in this House on that. Last year alone, 72,000 incidents of impaired driving occurred across this country.

When it comes to mandatory breath testing, we are going to look at international examples of jurisdictions that have implemented mandatory drug testing. When Ireland implemented mandatory drug testing, the next year there was a 26% reduction in drug-impaired and drinking impaired driving offences. I think the evidence is there. We will find a common-sense solution to get there. At the end of the day, we are here to protect Canadians, and that is what we should work toward.

[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, NDP, 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]

Thank you, 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.