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

[The Speaker, Geoff Regan]

There are five minutes remaining for questions and comments following the speech of the hon. member for Brandon—Souris.

The hon. Parliamentary Secretary to the Minister of Health.

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

Mr. Speaker, I would like to begin by commending the member for Brandon—Souris for the effort he put into going to his constituents. I am aware that he conducted several town halls and constituent consultations which were very helpful. I also want to offer my personal thanks for sharing the results of those consultations. I am very grateful for the effort the member made and I commend and thank him for that.

With respect to the remarks he made on Bill C-46, I believe he would agree with me that we currently have a problem with road safety inasmuch as Canada has the highest rate of cannabis use in the world, and evidence and research have told us that many people do not understand the risks that using cannabis or other drugs can have when they operate motor vehicles.

Would the member agree with me that there is an urgency, that Parliament has the responsibility to act, that by bringing this legislation forward, by ensuring law enforcement has access to the training, tools, technologies, and authorities it will need to keep our roadways safe, we have an opportunity to move forward and make our roads safer, and that the provisions contained within Bill C-46 have the potential to save very many Canadian lives?

[Larry Maguire, Conservative, Brandon—Souris, MB]

Mr. Speaker, I thank my colleague for his thanks for the work I did in my constituency and the five public meetings we held.

Whether people at those meetings were in favour of or deadly against the use of marijuana, the consensus was, if there was one, that we should defer this for some time, not necessarily a year or whatever, until training could take place, and I question whether the bill actually says it has to. However, my constituents felt that whether people were habitual users or not, the government should take more time to ensure the enforcement was put in place. That involves training taking place outside of the country. It was pointed out by one of my colleagues earlier today that only about 600 people out of 65,000 on the police forces in Canada were currently licensed to deal with cannabis.

While I commend the member for his question, I want to acknowledge that a lot more time is needed to ensure road safety is upheld. There is nothing to determine whether increased usage will ever reduce the impact of deaths and accidents on the roads.

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

Mr. Speaker, one of the questions I posed to a number of the member's colleagues is about recognition. For many years, we know that many individuals have been driving on roads in all our communities when they are, unfortunately, high or when they should not be driving because of cannabis or marijuana. If this legislation were passed, it would be an effective tool going forward in terms of trying to make our roads a safer place.

[Larry Maguire, Conservative, Brandon—Souris, MB]

Mr. Speaker, I guess the answer will be similar to what I just said. There is a definitive time frame that the government wants to move forward, which is next July 1. The people who spoke to me in my constituency, as well as police chiefs of Canada, have indicated there needs to be more time. In fact, some of them do not want it licensed at all. There needs to be more time for training and to make sure the roads can be made safer. We have law enforcement people who can make those decisions with the credibility of being able to go to court, because this will be challenged in court. There is no doubt about it, as I said in my speech today.

We have to look at the United States. The people I have spoken to in several states in the U.S. have indicated that when it is allowed to be licensed there is a sharp increase in usage, but it plateaus off and then it is a matter of whether there are fewer accidents on the roads at that point or not. Their situation has indicated there is not a reduction in accidents.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, I am pleased to rise to speak to this important bill, which deals with impaired driving. Impaired driving is a major problem on our roads and a very serious issue that we must consider.

That is why the NDP chose to support Bill C-46 at second reading, even though we still have some unanswered questions. Personally, I must admit that I have not yet decided what my final vote will be after report stage and third reading.

Second reading is often the step where members decide whether the underlying principle of the bill is important. This bill deals with impaired driving. It seeks to do more to prevent impaired driving and to go after those who choose to drive while under the influence. There is no doubt that the underlying principle of this bill is important. At third reading and report stage, members must determine whether the bill really supports that principle. Right now, I have my doubts, and I will explain why by talking about the medical concept of drug tolerance.

For instance, when one drinks alcohol, one's body becomes habituated, but it does not develop a tolerance. We cannot say, for example, that if someone does not drink alcohol and then starts drinking every day, he will be able to drink 40 times more without any effect because he is habituated.

Alcohol does not produce a tolerance effect; the same dose will always have the same effect. For example, we can expect someone who drinks three beers to present certain symptoms, and we can expect someone who drinks five or six alcoholic beverages to display other symptoms. The clinical picture is pretty clear. There can be small variations from one person to the next, but they are minor.

Some drugs, however, can produce a tolerance effect. This means that the body becomes habituated and that larger and larger doses are needed to produce the same effect. Morphine and fentanyl patches are good examples of these types of drugs. A cancer patient will be given a certain dose, a fentanyl patch, and this should relieve the symptoms. However, as the illness progresses and the patient takes the drug over a longer period of time, the body becomes habituated and the patient needs larger and larger doses to obtain the same relief.

A test was conducted on a cancer patient. He was given fentanyl patches until he felt relief. If he was still in pain, he was given a larger dose. Eventually, he was able to tolerate 140 fentanyl patches. I can assure the House that if anyone here were given a dose that size, he or she would die on the spot. That is an example of the tolerance effect.

That is why it is difficult to establish a dose of medication or any other substance that produces a tolerance effect because the results change depending on the person, the dose, the time and the causes. It is extremely difficult to establish dosage limits to determine at what point a person will be impaired or at what point it would be dangerous to increase the dose, because the tolerance effect changes for the patient during treatment.

Marijuana appears to have somewhat of a tolerance effect, which means that its effect will be completely different depending on the person.

So, even if you set serum level limits, a person who took a legal dose may be completely unaffected, while another person who took the same dose may be totally dysfunctional and impaired. Some people could take a quarter of the legal dose and be extremely dangerous on the road. So, if we set an arbitrary limit, we might not be able to convict drivers who did not exceed the legal dose but who are still impaired and in no condition to drive. We also risk convicting drivers who are not impaired because their body has developed a tolerance.

By establishing a serum level limit, I think this bill will cause problems with cases that go to court. I spoke with a few defence attorneys, and they told me that no scientific studies have been able to establish a specific dose that can determine whether a person is impaired.

In my opinion, if we want to prove that a person is impaired, we might have to consider other avenues with respect to drugs such as marijuana that produce a tolerance effect. For example, we could use the same tests and tools police officers use to detect the presence of drugs. That is a good test. If we suspect that a person has used marijuana, we could administer the test and determine if we are correct.

In this case, the level does not matter. We would merely have to detect the presence of drugs, which we could prove, then we could administer standardized tests like the ones used for drunk drivers. For example, we could ask the person to walk a straight line or recite the alphabet backwards. There are a number of similar tests that we could use to prove that the person is impaired.

If we relied more heavily on these tests, which, incidentally, can be filmed using body cameras, we would be able to prove that a person is impaired because he or she does not have the cognitive or physical ability to perform certain tasks that a person who is not impaired could. This might be an option that would carry more weight in court.

That is why I question this bill, because it appears obvious that we cannot pass a bill without knowing whether the cases that make it to court will lead to accusations and convictions. There is no point in passing a law if we are going to get clobbered in court. We are in a situation where cannabis is legal and we do not have the tools we need to get convictions when someone is caught driving under the influence.

These questions are the reason I still do not know how I am going to vote in the end. We cannot ignore the fact that THC effects individuals differently. We must also consider the fact that people are already using marijuana for medicinal purposes and that regardless of whether or not legalization occurs, we still do not know how to determine whether a medicinal marijuana user is impaired. It is clear that blood levels are not a reliable measure. We need to consider other tools that would more effectively help determine if a person is impaired and would give crown prosecutors a better chance of getting convictions.

We have a lot of work to do to get a better grasp of this issue and I think we need to base our decisions on science, as with anything else. So far, the science is telling us that there is no blood test that can determine with 100% accuracy that a person is impaired by marijuana since there are too many interindividual variations. We have to find another way to determine whether a person is impaired.

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

Mr. Speaker, I just want to ask a question about the member's last point concerning science.

First of all, I want to assure the House that the government very much desires to introduce evidence-based policy. To that end, we have relied on the advice of the scientific community, as represented by the Canadian Society of Forensic Science, which has established a drugs and driving committee made up of scientists. We have asked for their advice on the establishment of per se limits and the approval of devices, namely oral fluid test kits, that can test for that.

We have made a commitment to seek evidence based on the science, not on news accounts of science or people's opinions. We have gone to the scientific community. In this country there is a bona fide recognized body, the Canadian Society of Forensic Science, with a drugs and driving committee that gives advice to government on the approval of devices and standards. We have sought their advice. They have established a committee and done the research. They are providing us with that evidence.

Would that address the concerns expressed by the member opposite with respect to the importance of science informing this debate?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, what I am saying is that the experts do not agree when it comes to serum level limits. It is extremely difficult to prove that a specific dose will cause a person to be impaired.

In other scientific tests, in the case of cognitive tests, for example, if you ask a person to perform a task that he or she cannot do, you can prove scientifically that the person is not fit to drive. It might be simpler for the government and the police to use these types of tests to prove that a person is unable to drive, because there would be a direct link between the task and the person’s ability to drive. Let us say that a person is required to have certain reflexes. If we test the person’s reflexes and determine that they are too slow, we are making a direct link between substance use and reflexes that are slow enough to raise questions about the person’s ability to drive. It is also much easier to prove in court than obtaining a blood test.

Also, you may have to wait an hour or two before you can do a blood test in some rural regions. As an emergency nurse, I am resuscitating someone, so my priority is not to do a blood test to determine a patient’s serum THC level. My priority is to save a life.

When we administer a standardized test, we do it right away and we get the proof we need. It is far more difficult to challenge, because we have a video of the person failing to perform physical tasks that show that he or she is unable to drive.

[Celina Caesar-Chavannes, Liberal, Parliamentary Secretary to the Minister of International Development]

Mr. Speaker, I just want to build on my colleague's previous question about what happens after this piece of legislation goes forward and we ask law enforcement to be the ones to detect the ability of individuals to drive.

Our government is investing over $270 million to support law enforcement, to be better able to detect drug-impaired driving, and another investment of $160 million to train front-line officers to recognize the signs and symptoms of someone driving under the influence.

Does the hon. member think these initiatives, along with what my colleagues said previously, strengthen the ability of law enforcement to detect impaired driving?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, personally, I would say that we could invest billions of dollars in drug detection, but if we do not have the appropriate tool, the money will not do any good.

That is why I would like to know what tools we are going to use, which ones are most effective, which ones will get a conviction and which ones are most reliable. It is not a question of money. It is a question of asking what will work and what will allow us to prove beyond a doubt that a person is drug impaired. That is the question at hand. It is not a question of budgets. It is not a question of saying that, with this much money, it will be effective and, with that much money, it will not. It is a question of what we are using. That is why I have concerns about the bill, any why I am still deciding how I will vote in the end.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Mr. Speaker, it is a pleasure to rise today in the House to speak to Bill C-46. I want to commend my colleague for her great speech and her responses to the questions she received.

As everyone knows, Bill C-46, an act to amend the Criminal Code (offences relating to conveyances), is a piece of legislation I have quite a number of concerns about.

I would like to echo a comment I have been hearing from a number of my constituents in Bruce—Grey—Owen Sound. It is that the government's arbitrary and self-imposed deadline for marijuana legalization needs to be abandoned. Many find it reckless on the government's part to be moving at such a rapid speed on a very sensitive issue. There are many unanswered questions when it comes to the legalization of marijuana, many of which deal with the topic at hand in Bill C-46, impaired driving.

I want to point out that if a person is impaired and is going to drive, it does not matter whether it is alcohol or whatever. A lot of people think that someone who is impaired must have been drinking. No. The use of marijuana or any other drug impairs a person. Anyone impaired like that should not be driving. These concerns, of course, are valid.

Canadians are looking south of the border at states like Colorado and are seeing an immense increase in the number of traffic deaths attributed to the use of marijuana. I would like to present the House with some statistics from Colorado on marijuana-related traffic deaths.

Marijuana-related traffic deaths have increased 48%, in the three-year average, since Colorado legalized recreational marijuana. In the year following legalization, marijuana-related traffic deaths increased 62%, from 71 to 115 persons.

In 2009, before legalization, marijuana-related traffic deaths in Colorado involving operators testing positive for marijuana represented 10% of all traffic fatalities. By 2015, after legalization, that number had doubled to 21%. There has been a 67% increase in the number of operators testing positive for marijuana involved in fatal accidents since recreational marijuana was legalized in 2013.

Therefore, we can see that Canadians have a legitimate reason to be concerned about how the legalization of marijuana will affect impaired driving in Canada. Canadians understand how important it is for the government to take its time and leave no stone unturned when it comes to ensuring that we are prepared as much as possible for when legalization becomes a reality.

We all know that the government promised to legalize marijuana. Whether one agrees with it or not, the government said that. However, I think it is obvious, from all the experts and from the observations made by members in this House, that the government is not ready.

Sometimes we have goals that we hope can happen at a certain time. Sometimes we have to just sit back and say that the right thing to do is delay it a bit and do it right. That is where I am coming from. This includes ensuring that police have the right tools and other resources to do their jobs and the proper training to identify the presence of marijuana use at the roadside. This should also be complemented by a public awareness campaign to educate Canadians about the dangers of marijuana use and driving.

The key question is about readiness, as I said. Will police agencies be ready when the time comes? Police themselves say that the answer is no. The July 1, 2018, deadline is way too soon. No number of legislative initiatives like Bill C-46 will be able to prepare the police for when marijuana becomes legal in July next year. The Standing Committee on Justice and Human Rights heard this loud and clear when the Canadian Association of Chiefs of Police appeared during its study of the legislation.

Here is what Mario Harel, president of the Canadian Association of Chiefs of Police, had to say about the readiness of police forces across Canada in terms of resources and training.

He said:

While funding has been announced, details regarding how the funding will be allocated through the provinces and into the municipal police services' hands remain unclear. We need that to meet the training and implementation objectives. We clearly require many more officers trained in standard field sobriety testing and as drug recognition experts. Quite frankly, the capacity currently is not there to deliver the amount of training required.

Furthermore, police forces across Canada, including the RCMP, are still in the process of determining the best way forward when it comes to screening devices for roadside tests. Again, I will cite the testimony of Mr. Harel:

Standards for oral fluid drug screening devices are being developed.

He said, “being developed.” They are not there yet. Mr. Harel continued:

Devices are yet to be screened against standards approved by the Attorney General of Canada and made available to law enforcement to allow for implementation and training.

We can see that there is still a lot of work to be done to ensure that our police forces have the tools and training they need to be ready to keep our roads safe from impaired drivers.

It is also vitally important that drug screening devices respect the rights and freedoms of Canadians. This leads me to another aspect of the bill that I have a great deal of concern about, and that is mandatory alcohol screening. Proposed subsection 320.27(2) of Bill C-46 would go further than current Canadian law and would allow a police officer with an approved screening device to demand that a driver provide a sample, whether a breath test or another kind of sample, without any grounds whatsoever.

Recently, the House rejected Bill C-226, which created the same type of conditions. In Bill C-226, this was known as random breath testing. Bill C-46 would essentially recreate this practice. I had a great deal of concern about random breath testing with Bill C-226, and that concern remains with Bill C-46.

The Canadian Bar Association said this about the reincarnation of random breath testing:

The revised title does not change its essence and it remains a random test that can be administered without any grounds. Police now must have a reasonable suspicion that the person has alcohol in their system before making a demand, and even that is a low threshold.

Under Bill C-46, there would not even be a need for an officer to have any suspicion of the presence of alcohol. He or she could simply demand that a sample be provided. This runs counter to the Charter of Rights and Freedoms and could very well make this bill unconstitutional.

This provision could potentially create difficult conditions for some minority groups. I have heard of a number of cases where first nations groups and African Americans, of course, south of the border, have been forced to provide samples without reasonable grounds. These types of provisions only encourage an increase in these types of situations.

We can all go back a number of years, to a remote northern native community in The Pas, Manitoba, I believe. I have a lot of respect for police, and most policemen and policewomen have the highest integrity, but in this community, there were a couple of officers who had a disdain for native people in some ways. They would pick up intoxicated natives and take them to the edge of town, and it was only after someone froze to death in a snowbank that the issue was brought out. The reason I mention this case is that if we allowed random breath testing, it would open the door for abuse like that, where the wrong kind of officer or officers could target communities. That is the last thing we want. Again, it goes against the Charter of Rights and Freedoms. Therefore, I stand with the Canadian Bar Association when it recommends that this section be deleted from the bill altogether.

With that, I will conclude my remarks by stating that I strongly encourage the government to slow down and re-evaluate this bill. Slowing down and doing it right is not a bad thing. It is not about saving face or whatever. It should just do the right thing. We want to make sure that police have the tools and training they need and that we are protecting the rights and freedoms of Canadians. With that, I am glad to take questions.

[The Deputy Speaker, Bruce Stanton]

We will get to questions and comments for the hon. member for Bruce—Grey—Owen Sound in a moment.

Before we do, 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 Beauport—Côte-de-Beaupré—Île d'Orléans—Charlevoix, Ethics; the hon. member for Calgary Nose Hill, Foreign Affairs; the hon. member for Chilliwack—Hope, Natural Resources.

We will now go to questions and comments, the hon. member for London North Centre.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Mr. Speaker, I heard in the summary that my colleague is more concerned about the progress of the bill in terms of “getting it right”, as he put it. I wonder if he could comment, because from that I take that he in fact is in favour of the legalization of cannabis, and if so is it because Canada has the highest use of cannabis use, when it comes to our young people, in the industrialized world? I wonder if he could touch on that, please.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Mr. Speaker, as my hon. colleague heard, I am opposed to this bill for a number of reasons. There are parts of it that have to come out.

In response to his claim that we have the highest use of cannabis by young people, it is obvious he does not really want to hear the answer. However, if that use is as high as he implies, this will only encourage that and make it worse. Why on earth would we want to do that? There are too many flaws in this where the government is not ready to enact it. I accept the fact that it has the numbers to pass this bill, but it is not doing it right. It is pushing it ahead just for the sake of getting it through the House, and that is not right.

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, a number of Conservative members today have expressed concern about mandatory screening and cited the Canadian Bar Association's brief. We at the committee heard from multiple witnesses who said it was indeed constitutional. The Conservative Party supported the recent private member's bill of the hon. member for Bellechasse—Les Etchemins—Lévis, Bill C-226, which included mandatory screening. I am wondering why that position has changed.