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

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Madam Speaker, one that comes to mind immediately is that some pubs in some communities now have invested in shuttle buses so that they can get their customers home safely at night. In fact, those kinds of programs attract a loyal customer base, because people know they can have an enjoyable evening at the establishment and get home safely. I would point that out as a complementary program set up by the private sector, which has worked really well in communities like mine.

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

Madam Speaker, I am very pleased to have the opportunity to rise in the House to join in the second reading debate on Bill C-46, an act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other acts.

I am proud to speak in support of this proposed legislation. If passed, our government is convinced that Bill C-46 will reduce the number of deaths and injuries caused by impaired drivers. Our roads and highways will be safer for our efforts.

The bill proposes to address both alcohol- and drug-impaired driving, but I intend to focus my remarks primarily on the elements that address drug-impaired driving.

Before I outline the proposals in Bill C-46, I would like to emphasize that driving while impaired by a drug is currently a criminal offence in Canada, and has been since 1925. Members should rest assured that if someone drives while impaired by drugs today, he or she will be prosecuted to the fullest extent of the law. Bill C-46 seeks to build on the existing offence by authorizing new tools and by creating new offences to make Canada one of the world's leaders in the fight against impaired driving.

To enforce the existing offence of driving while impaired by drugs, the Criminal Code currently authorizes the police to conduct standardized field sobriety tests at the roadside. These tests can include asking a driver to walk a straight line, balance on one leg, and a number of other tests of physical and motor skills. The Criminal Code also authorizes more sophisticated drug recognition evaluations at the police station, by highly trained drug recognition evaluators, once the police officer has reasonable grounds to believe, based on roadside tests or otherwise, that the driver is impaired.

The drug recognition evaluation consists of a 12-step protocol to determine whether the driver is impaired by a drug. It includes testing such things as balance, pupil size, and blood pressure. These tools have been effective since their legislative introduction in 2008 and have led to an increase in the detection of drug-impaired drivers across our country, yet despite these measures, drug-impaired driving on our roads continues to increase. Clearly, more needs to be done in advance of our proposed legislation and the strict regulation of cannabis.

My colleagues have also mentioned the need for training more drug recognition experts. Our government has, on many occasions, re-emphasized its commitment to ensuring that a drug recognition training program is available and acceptable to all Canadian police services so that we can make sure there are adequately trained experts to conduct these tests.

I am pleased to outline the proposals in Bill C-46 that aim to address drug-impaired driving by building on the existing legal framework and by proposing new tools and offences to create a strong impaired-driving regime.

Bill C-46 proposes to provide law enforcement with the authority to demand that a driver provide an oral fluid sample at the roadside to be analyzed by a roadside oral fluid drug screener if an officer has a reasonable suspicion that a driver has drugs in his or her body. Reasonable suspicion is a well-understood standard in criminal law and can be developed through a number of observations, including such things as red eyes, muscle termors, abnormal speech patterns, and of course, the smell of cannabis.

These oral fluid drug screeners would detect the presence of a drug in a driver's oral fluid, and they would provide the officers with information that could be used to develop reasonable and probable grounds to believe that an impaired-driving offence had occurred. Once officers had reasonable and probable grounds to believe that the offence had occurred, they would then have the authority to demand a sample of blood from the driver, and as well, to bring them before a drug recognition expert for evaluation.

The oral fluid drug screener would detect THC, cocaine, and methamphetamine. In the future, more drugs will be able to be detected by these oral fluid drug screeners as the technology evolves.

Madam Speaker, I forgot to mentioned earlier that I will be splitting my time with the member for Oakville North—Burlington.

In addition to authorizing these additional tools for police, the bill proposes three new criminal offences for being over the prescribed legal drug limit within two hours of driving. These offences would be proven through a blood sample and would relieve the crown of the burden of proving that the driver was impaired. It would be enough to prove that the driver had an illegal level of drugs in his or her blood.

The first offence would be a straight summary conviction offence. The second and third offences would be hybrid offences: the second one would apply to drugs alone, while the third would apply to drugs when used in combination with alcohol.

Members may have noticed that although the proposed offences are in the bill, the actual prohibited drug levels are not. This is because the drug levels are to be set by regulation, which comes into force at the same time, or close to the same time, as the proposed offences.

Setting the prohibited levels in the regulations is the responsibility of the Minister of Justice, who has the ability to revise the regulations more quickly and efficiently in response to scientific developments. This is the approach currently taken in setting prohibited drug levels in the United Kingdom, and I believe it is the wisest course of action.

Other impairing drugs would be included in the regulations, but I would like to focus on the proposed levels for tetrahydrocannabinol, the primary impairing component of cannabis. For the straight summary conviction offence, the proposed level for THC would be between two and five nanograms of THC per millilitre of blood. The proposed penalty for this offence is a maximum fine of $1,000 and a discretionary prohibition on driving for up to one year.

The proposed level of THC for the drug-alone hybrid offence would be over five nanograms of THC per millilitre of blood, and for the hybrid offence addressing drugs when used in combination with alcohol, the proposed levels would be 2.5 nanograms of THC per millilitre of blood in combination with 50 milligrams of alcohol per 100 millilitres of blood.

The penalties for these two new hybrid offences would be the same as for alcohol-impaired driving, and they would include a mandatory minimum penalty of $1,000 on a first offence, 30 days' imprisonment on a second offence, and 120 days' imprisonment on a third or subsequent offence.

One final element of the proposed offences I would like to address concerns the time frame in which the proposed legal limit offence could be committed. Members may have noticed that the offence is worded to capture drivers with a prohibited level of drug in their blood within two hours of driving, and not at the time of driving.

This proposed formulation reflects a number of significant policy goals. First, unlike with alcohol, it is not possible to determine or back-calculate from a blood sample what a driver's blood drug concentration would have been at the time of driving. This is why the within-two-hours framework is necessary. It further addresses the concern of people trying to obstruct the testing process by consuming drugs after driving and then claiming that this post-driving consumption was responsible for the illegal drug level.

I would like to conclude my remarks by addressing a few of the more common questions I have heard over the past few weeks concerning this bill since its introduction.

People have been asking, “How much can I smoke before I can drive, and how long after I smoke do I need to wait before it is safe to drive?” I understand these questions, because for years, we have been able to provide general guidance to drivers with respect to alcohol consumption.

There is a significant scientific consensus that consuming cannabis impairs the ability to drive. The proposed prescribed THC levels are based on the advice of the Drugs and Driving Committee of the Canadian Society of Forensic Science. This committee provides scientific advice to the Minister of Justice on issues related to drug-impaired driving.

Let me be perfectly clear. The safest approach for people who choose to consume cannabis is to not mix their consumption with driving. Driving is a privilege, not a right. If Canadians choose to consume cannabis, they must do so in a socially responsible way by not risking the lives of their fellow Canadians, to say nothing of their own.

I would also take this opportunity to point out what was already referenced by the member in his speech regarding the remarks of eminently respected constitutional scholar Prof. Peter Hogg, in which he articulates his belief that the measures proposed in this legislation are constitutionally valid, constitutional validity being determined under section 1 of the charter as a reasonable suspicion and passing the elements of the Oakes test.

Finally, I wish to strongly support the proposals in Bill C-46. I would like to encourage all members to support this bill and work towards the common goal of reducing deaths and injuries on our roads and highways as quickly as possible.

I spent more than four decades of my adult life dealing with this critical issue. I have seen far too many people lose their lives, far too injuries, and far too much trauma and tragedy in our communities for this to continue to persist. We have a responsibility to act, and I believe that the provisions of Bill C-46 are the right steps forward.

I encourage all members of this House to support this bill.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Madam Speaker, I want to thank the member for his speech today and for his years of service in policing our communities in Toronto.

I will give the hon. member credit. He did come to Barrie. I know he did a cross-Canada tour on this.

I subsequently met with the stakeholders the member met with in Barrie. There were significant concerns about this bill. Everyone I spoke to after that meeting felt that the parliamentary secretary was hearing but was not listening to those concerns. There were obviously social concerns with respect to the legalization of marijuana, but more specifically, there was a concern about the cost and the downloading of costs to municipalities with respect to policing, enforcement, zoning, etc. Those were some of the issues people were left confused by. Any time there is confusion, there is doubt.

I want to ask the parliamentary secretary about the downloading of costs and how his government plans to deal with them.

[Bill Blair, Liberal, Scarborough Southwest, ON]

Madam Speaker, as the member for Barrie—Innisfil has suggested, I did travel across the country. I have had the opportunity to meet with municipal officials, public health officials, and police chiefs across the country. I have spoken very extensively to the drugs and driving committee, for example, of the Canadian Association of Chiefs of Police and the Ontario Association of Chiefs of Police. I have heard their concerns with respect to the impact that supporting this important legislation will have on their resources.

I must also say that they overwhelmingly support the provisions and the clarification that Bill C-46 offers with respect to impaired driving, which is, as we all know, one of the most litigated pieces of law within the Criminal Code and in creating jurisprudence.

Many questions they asked were about the impact this will have on their resources. One of those impacts is that they will need to have sufficient training and have access to the technology that will now be required. My government has assured them, and I have assured them, from coast to coast, that we are committed to ensuring that all police services have the legislation, the training, the technology, and the resources that they will require to keep our roadways safe.

[Tracey Ramsey, NDP, Essex, ON]

Madam Speaker, the NDP has long stood for measures to stop impaired driving. We need to focus on smarter deterrents to actually prevent these tragedies. We need a robust public awareness campaign before this legislation comes into effect. I note that the bill does not have any clear limits on how much marijuana in saliva qualifies as impairment, and we need a science-backed initiative to stop impaired drivers in their tracks.

As the parliamentary secretary told us, he is a former law enforcement member, so he knows that the exercise of police authority can and does disproportionately affect visible minorities. The experience of carding or street-checking and the disproportionate arrests and charging of visible minorities for marijuana offences make that very clear.

What reason would an officer have to give under this legislation to ensure that racialized Canadians are not targeted for mandatory breath testing?

[Bill Blair, Liberal, Scarborough Southwest, ON]

Madam Speaker, first of all, having been involved in the delivery of front-line policing services for over four decades, I can tell her that the disproportionality in contact that police across this country have with minority and racialized communities is a reality, but there are very many social, economic, and cultural reasons, including the possibility of institutional police misconduct, that can lead to that disproportionality.

I want to assure the member, as is contained in the response of the Minister of Justice in her constitutional opinion, that the provision of mandatory testing only applies if a person is otherwise lawfully stopped and provides a lawful authority to interfere with their privacy in a breath sample for the important objective of enhancing road safety. If that stop is determined by our courts to be unlawful—a stop that was based not on legitimate legal reasons but rather a stop based on anything inappropriate, such as the race or ethnicity of the driver—it would render the stop unlawful, and it therefore would not be acceptable and constitutional under this legislation.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Madam Speaker, I am pleased to rise today to speak to Bill C-46, legislation that I know is important to the residents and law enforcement officers in Oakville North—Burlington and across Canada.

Impaired driving is a serious crime that kills and injures thousands of Canadians every year. In 2015, there were more than 72,000 impaired-driving incidents reported by the police, including almost 3,000 drug-impaired driving incidents. Impaired driving is the leading criminal cause of death and injury in Canada, and drug-impaired driving is increasing in frequency. Bill C-46 aims to address this serious issue and proposes to create new and stronger laws to punish more severely those who drive while impaired by drugs or alcohol. When I met with Halton police chief Stephen Tanner, we discussed the need for law enforcement to have more tools to better deal with impaired driving.

Today I would like to focus my remarks on the penalties proposed in Bill C-46. The bill would overhaul the penalty provisions to ensure there is coherence and rationality. The proposals include some higher maximum penalties, hybridization of bodily harm offences, and some new mandatory minimum fines. No new or higher mandatory minimum penalties of imprisonment are being proposed.

Bill C-46 would raise the maximum penalties for impaired driving where there is no death or injury. In cases in which the prosecution proceeds by the less serious summary conviction procedure, the maximum period of imprisonment would be increased from the current 18 months to two years less a day. When the prosecution chooses to proceed by the more serious indictable procedure, the maximum period of imprisonment would increase from the current five years to 10 years. This new 10-year maximum would permit the prosecution, in appropriate circumstances, to make a dangerous a offender application. These changes send a clear message concerning the seriousness of impaired driving.

The dangerous driving causing death offence currently has a 14-year maximum period of imprisonment. Bill C-46 would raise this to a maximum of life imprisonment, which is currently the maximum penalty for all other similar offences resulting in death. With the increase of the dangerous driving causing death maximum penalty, there would no longer be a need for the prosecution to pursue separate offences in order to allow for a maximum penalty of life imprisonment.

Bill C-46 proposes changes that would merge the offence of impaired driving causing bodily harm with the offence of dangerous driving causing bodily harm.

Currently, the offence is a straight indictable offence, which means that the prosecution must treat all cases the same, even those involving less serious bodily harm, such as a broken arm.

Bill C-46 proposes a maximum penalty on a summary conviction procedure of two years less a day, and on indictment it would increase from 10 years of imprisonment to 14 years. This is important, given that the vast majority of alcohol-impaired driving sentences are in cases that involve no death or injury. This change would therefore give the prosecution greater flexibility, and this additional discretion may promote efficiencies in our criminal justice system by reducing the time to process cases involving minor or no injuries.

Under Bill C-46, the existing mandatory minimum fine of $1,000 for alcohol- and drug-impaired driving offences would apply to a number of hybrid offences, including driving while impaired by alcohol or a drug, driving while over a drug's legal limit, and driving with a drug-plus-alcohol blood concentration in excess of the legal limits.

Bill C-46 would also create a new mandatory minimum fine of $1,500 for a first offence of driving with a blood alcohol concentration over 120 milligrams. In addition, it would create a new mandatory minimum fine of $2,000 for driving with a blood alcohol concentration over 160 milligrams. The higher mandatory minimum fine penalties for a first offence will reflect the increased crash risk that is associated with higher blood alcohol concentrations.

Bill C-46 would also create a new mandatory minimum fine of $2,000 for a first offence of refusing a valid police demand for a breath sample, a blood sample, a urine sample, an oral fluid sample, a standard field sobriety test, or testing in a drug evaluation. This is important to ensure compliance with demands. Otherwise, first-offence drivers with a higher blood alcohol concentration could simply refuse to give a sample in order to evade the higher mandatory minimum fines.

For repeat offenders, having a high blood alcohol concentration would be an aggravating factor to be considered upon sentencing. The mandatory minimum penalty for a second offence would remain as it currently stands in the Criminal Code at 30 days' imprisonment, and for each subsequent offence it would remain at 120 days' imprisonment.

Bill C-46 does not propose any new or higher mandatory minimum penalties of imprisonment for the Criminal Code's transportation offences, including drug-impaired driving and alcohol-impaired driving. With respect to impaired driving causing death cases, I understand that provincial courts already typically impose or uphold penalties that are well above the existing mandatory minimum penalties and are in the range of at least three to four years, if not higher.

Bill C-46 does not propose a mandatory minimum penalty that exceeds the current sentencing range, because this is not necessary to ensure appropriate sentences and does not work as a deterrent. Indeed, the organization Mothers Against Drunk Driving Canada, which is based in my community of Oakville, is opposed to mandatory minimum penalties for these offences, citing charter concerns in certain circumstances, but also pointing out that mandatory minimums can have a downward pull on sentences. The organization explained that they become an inappropriate cap where longer sentences might be appropriate. The better route is to leave sentencing discretion to the trial and appellate courts.

I had the pleasure of meeting with MADD Canada's CEO, Andrew Murie, recently in my riding. In addition to his comments on mandatory minimums, he expressed his organization's confidence in our justice department and commented that he was pleased with the consultations that had taken place with his organization on this subject. He also expressed his thanks to our government, noting that we have such a deep understanding of the issue and are prepared to take a comprehensive approach to addressing it.

I will now turn to the subject of prohibitions and ignition interlock devices. Currently, where there is no injury or death on a first offence, the sentencing court must impose a mandatory minimum prohibition against driving anywhere in Canada for a period of one year. On a second offence, the penalty is a period of two years, and for a subsequent offence, the minimum driving prohibition is for a period of three years.

Bill C-46 also reduces the current waiting period before which the offender may drive when using an ignition interlock device. On a first offence, the waiting period to use an ignition interlock device would be reduced from the current three months to no waiting time. On a second offence, the waiting period to use an ignition interlock device would be reduced from the current six months to three months, and on a subsequent offence, the waiting period to use an ignition interlock device would be reduced from the current 12 months to six months. These amendments would reflect the fact that ignition interlock device programs help to prevent recidivism.

Currently, the Criminal Code has a provision by which an impaired driving offender may be given a conditional discharge on the condition that he or she attend a program of curative treatment. This curative treatment discharge provision has not yet been proclaimed into force in Ontario, Quebec, British Columbia, and Newfoundland and Labrador. Bill C-46 would replace this provision with one that allows the defence to apply, with the consent of the prosecution, for a delay of the sentencing hearing in order for the offender to attend a provincially approved treatment program. If the offender successfully completes the program, the sentencing court would not be obliged to impose the mandatory minimum penalty or the mandatory period of prohibition against driving anywhere in Canada.

I am pleased to support Bill C-46. I respectfully ask my colleagues on all sides of the House to support this important piece of legislation that would make our communities safer for everyone

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Sadly, Madam Speaker, visible minorities are often targeted for arrest and subjected to accusations.

What measures will the government implement to ensure that Canadians who are victims of racial profiling will not be disproportionately targeted for mandatory alcohol screening?

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Madam Speaker, in drafting this new legislative power, the government did consider the potential for racial profiling. We strongly oppose such behaviour in any circumstance.

Mandatory alcohol screening is being proposed to keep all Canadians safe. It would not give police any additional powers that the police do not already have under common and provincial law to stop drivers at random to determine their sobriety. Mandatory screening would not alter the responsibility of local forces toward training and oversight of their own officers to ensure that they are appropriately applying Canadian law and upholding the Canadian Charter of Rights and Freedoms.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Madam Speaker, the implications of this bill include significant changes to policing at the local level. Municipalities have concerns about resources and about adapting to new requirements, particularly with the prospect of having to screen drivers for impairment due to cannabis. I would like the member to comment on the implications of the bill on both provinces and especially municipalities.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Madam Speaker, as a former municipal councillor, I recognize there are limited costs within a municipality, especially when it comes to policing, fire, and EMS. With regard to the legislation, I know law enforcement agencies have been asking for additional tools and are looking for ways to better keep their communities safe. This legislation has been rolled out to give law enforcement services the tools they have asked for to keep communities safe when it comes to alcohol and drug-impaired driving.

Police forces already have options available to them to deal with drug-impaired driving. Mandatory breath screening gives them an additional tool they can use to keep our communities safer. I think we can all agree that we would like to see this.

[Joël Lightbound, Liberal, Parliamentary Secretary to the Minister of Health]

Madam Speaker, I thank the member for her excellent speech.

Just as alcohol impaired driving is illegal, so is drug impaired driving. However, over the past few years, there has been greater awareness regarding drunk driving. When Canadians go out and plan to have a drink, they know they need to have a designated driver or take a taxi to get home. There is not the same level of awareness when it comes to drugs.

Bill C-46 gives police officers the tools to test drivers. It also sends a very clear message that we have a zero tolerance policy when it comes to drug impaired driving.

In the member's opinion, just how much would public awareness be raised as a result of giving police officers additional tools and setting penalties that would enable prosecutors to properly prosecute drug-impaired drivers?

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Madam Speaker, even having this discussion has allowed the public to become far more aware about the dangers, particularly with drug-impaired driving. A number of people knew there were dangers with alcohol-impaired driving, but they did not recognize they also should not drive a vehicle when they were under the influence of drugs.

Therefore, the legislation is helping to raise awareness already. In addition, I know the Department of Health, under the proposed legalization of cannabis, is also embarking on an education campaign.

[Earl Dreeshen, Conservative, Red Deer—Mountain View, AB]

Madam Speaker, it is certainly a pleasure for me to rise today to contribute to this important debate on Bill C-46.

I think everyone recognizes this is companion legislation, with the attempt to give cover for the Liberals' legislation regarding government-sponsored cannabis distributions and sales.

I was proud of our previous government's record on reducing crime and standing up for the right of victims. So many of us have presented petitions on behalf of families whose lives have been devastated by the actions of those people who choose to drink and drive. Now we are adding people to that, those who feel we have normalized the use of marijuana. When I come back to my discussion, I will talk about that.

As someone who has taught school for 34 years, I have seen the carnage and the issues young people have to deal with when it comes to drugs and alcohol. I feel like we should be able to contribute to that and talk about it.

As we move forward with the legislation at committee, we will try to ensure that there is some clarity for law enforcement officers and municipal and provincial governments and that the legal system has the manpower and the resources to deal with it.

There have been talks about whether there is clarity when it comes to charter compliance. Sometimes governments depend a lot on departments to say that something is charter compliant, only to find out later that maybe they did not quite have right. We can think about yesterday when the Alberta Court of Appeal struck down a portion of its provincial impaired driving laws, which deal with the immediate suspension of a driver's licence. It ruled in favour of a constitutional challenge to strike down the law.

These are the sorts of things taking place and we have to consider the,.

I want to thank our fantastic interim leader, the member Sturgeon River—Parkland, since it is my last opportunity to say this.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

It being 1:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's Order Paper.

The hon. member will have 17 and a half minutes remaining when this issue is before the House again.