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

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

Mr. Speaker, I want to thank my friend from Cariboo—Prince George. I know about the tragic circumstances surrounding his brother being killed by an impaired driver. The member is a passionate advocate around this issue.

My colleague is right on the question of implementation and enforcement, and the fact that costs are being downloaded on to the provinces and municipalities. It speaks again to the fact that the Liberal government does not have a plan. It is also why not only is the law enforcement community asking for the government to delay the legalization of marijuana, but many provinces and municipalities are calling on the government to slow down, to consult, and develop a plan before ramming this through by July 1.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Mr. Speaker, I am pleased to speak today in favour of Bill C-46, an act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other acts.

We have heard moving testimony about this issue, both here in the House and before the Standing Committee on Justice and Human Rights. Impaired driving impacts us all, and we need to do our part to reduce such preventable deaths and injuries on our roads.

As we have heard already, Bill C-46 proposes many major changes to strengthen the drug-impaired driving laws, as well as a thorough updating of the alcohol-impaired driving provisions. The overarching goal of these changes is to reduce the incidents of impaired driving and to save lives.

One of the main proposals in the bill to achieve this goal is mandatory alcohol screening, a tool used worldwide to deter and detect alcohol-impaired driving. This would authorize an officer to demand a roadside breath sample on an approved screening device without the current requirement of suspicion that the driver has alcohol in his or her system.

Research suggests that up to 50% of drivers with a blood alcohol concentration above the legal limit are not detected through current practices such as check stops and random traffic stops. This is an unacceptable number of drivers who are impaired and are able to drive away after having interacted with the police.

We heard testimony of this sort at the Standing Committee on Justice and Human Rights, including from Dr. Jeff Brubacher, a medical doctor and researcher with the University of British Columbia; and Dr. Douglas Beirness, a subject matter expert on impaired driving with the Canadian Centre on Substance Use and Addiction.

Dr. Brubacher said that his study indicated that police officers do not always recognize impairment in drivers in the amount of time they have to interact with the driver, and Dr. Beirness confirmed that police officers vary considerably in their ability to detect alcohol and assign the symptoms of alcohol use. He clarified that this is not because police officers are unable to do their job effectively, but rather that detecting impairment is simply very difficult. It varies from person to person, and some individuals are able to effectively mask their physical symptoms.

Both Dr. Brubacher and Dr. Beirness expressed support of mandatory alcohol screening and asserted their confidence that this measure could help to reduce the number of impaired drivers on our roads.

Mandatory alcohol screening will be a strong deterrent factor for those who drive after drinking. With mandatory alcohol screening, such risky behaviour would be less likely, as every driver would know that he or she could be tested at any time and could not expect to avoid detection by masking or hiding symptoms.

This has proven to be the case in other jurisdictions where mandatory alcohol screening has been implemented. According to MADD Canada, more than 40 countries worldwide authorize mandatory alcohol screening, including several Australian states, New Zealand, Austria, Belgium, Denmark, Finland, France, Germany, Ireland, the Netherlands, and Sweden. In fact, mandatory alcohol screening was credited with reducing the number of people being killed on Irish roads by almost one-quarter, 23%, in the 11-month period following its introduction compared to the previous 11-month period.

Many concerns were raised relating to the constitutionality of mandatory alcohol screening, both in the House and at committee. I would like to spend the remainder of my time addressing these concerns. Many of the concerns related to the potential for mandatory alcohol screening to violate sections 8 and 9 of the charter.

Mandatory alcohol screening would only apply to a person who is lawfully stopped pursuant to other laws, such as provincial highway traffic acts. The police currently have the power, both in statute and common law, to stop any driver at any time to determine whether that driver is complying with the rules of the road, including to check for sobriety. This power has been upheld by the Supreme Court of Canada on several occasions.

Furthermore, the information revealed from a breath sample, like the production of a driver's licence, is simply information about whether a driver is complying with one of the conditions imposed in the highly regulated context of driving, including sobriety.

I would also note that a breath sample does not reveal any personal or sensitive information and the taking of the sample is quick and not physically invasive. Furthermore, simply blowing a “fail” on an approved instrument does not in itself constitute an offence. This is just a step that could lead to further testing to determine whether a driver is impaired.

We are all aware that the Minister of Justice tabled a charter statement on May 11, in which she affirmed her confidence that mandatory alcohol screening was compliant with the charter. Many shared the minister's confidence that mandatory alcohol screening would be charter compliant when the bill was studied at committee, including the leading constitutional law expert Dr. Peter Hogg. He expressed an opinion that mandatory alcohol screening would withstand any charter challenges, as it aims to prevent dangerous activities and promote public safety. As such, it was his view that it would be found justifiable under section 1 of the charter, and I agree with this position.

The Privacy Commissioner of Canada, Mr. Daniel Therrien, also testified that after reviewing the charter statement, any concerns he had regarding the proportionality and the necessity of the legislation were satisfied.

Members of the defence bar, as well as civil liberties groups, expressed concern that mandatory alcohol screening would result in an increase in police targeting of visible minorities.

Racial profiling is unacceptable. All law enforcement must exercise their powers in compliance with the charter, including the right to be free of discrimination of any kind. However, as I previously stated, the police already have the power to stop any driver at random to determine their sobriety. Nothing in the mandatory alcohol screening provisions would promote or condone the targeting of racialized individuals. It is restricted to cases where a peace officer is acting “in the course of the lawful exercise of powers.”

There is also nothing in these provisions that alters the current responsibility of police and other law enforcement officials to ensure that the powers of the police are exercised in a fair and equal manner, in accordance with the charter.

At the Standing Committee on Justice and Human Rights, we amended the preamble of the bill to reflect that police powers must be exercised in a manner that is consistent with the charter. While it is implicit that all police must always do this, this will be a further signal that racial profiling will not be tolerated.

At committee, we heard testimony from Dr. Barry Watson and the assistant commissioner of road policing command, Doug Fryer, both from Australia, where mandatory alcohol screening has been in place since the 1980s. Both witnesses testified that mandatory alcohol screening was actually a way to overcome any concerns about racial profiling. This is because police officers in Australia have much less discretion to choose who will be tested when the screening is mandatory.

Mandatory alcohol screening has had a strong track record in saving lives in other jurisdictions. Canada continues to have the highest percentage of alcohol-related deaths among 20 high-income countries. It is incumbent on us to do better and mandatory alcohol screening saves lives. Therefore, I am pleased to support Bill C-46 and its proposal to save lives.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Mr. Speaker, the member talked a lot about alcohol testing and its importance, but we also heard from the government side today that it would be ready with roadside THC tests that would meaningfully test for impairment, yet at the Standing Committee on Justice and Human Rights, we heard there was no way to relate roadside tests for THC with impairment in any way at all.

Could the member comment on that and what method the government will recommend for roadside THC impairment tests, not for THC levels, but impairment?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Mr. Speaker, the contemplated roadside testing for THC is not to test for impairment but for THC levels. It is a legislated requirement under this bill that one of the requirements for exercising the right to operate a motor vehicle is to have a blood alcohol level below a certain level of THC. That is a legislated requirement. That is what per se limits are all about.

It is not a statement of impairment, although the scientists we talked to at committee said there was no safe level of THC in the blood. We need to establish a level that we can measure in a reasonable way to set a bar under which we can operate in a legal manner.

[Robert Gordon Kitchen, Conservative, Souris—Moose Mountain, SK]

Mr. Speaker, the member talked a lot about drunk drivers and not a lot about marijuana and its effects on drivers.

What my hon. colleague does not know is that I was the victim of a hit and run by a drugged and drunk driver when I was 16 years of age. I was left for dead by that driver on the side of the road. They caught the man afterwards, and he was let go on bail and skipped the country. There was no punishment.

When the member talks about this legislation and putting it in place, why does he want to put in legislation before the rules are there? We are going to allow stoned drivers to be on the road driving, putting people's lives at risk? What does the member say to a parent who has to deal with a phone call late at night that their 16-year-old child is lying dead on the road or dying on the side of the road? How would the member respond to those people?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Mr. Speaker, this legislation does not legalize driving under the influence of any drug. It is already illegal to drive in any impaired state.

What this law does is to provide additional tools for police officers to detect such driving circumstances. I think we would all be naive to believe that people are not driving under the influence of marijuana or other drugs. It is happening now.

This bill provides excellent tools for police to engage that problem, and to do so in a meaningful way.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Mr. Speaker, I want to recognize my hon. friend from Coquitlam—Port Coquitlam for the work he did on the good Samaritan law, which is also saving lives.

Does the member think we have done a disservice over the years by focusing on impairment levels, even with respect to alcohol? Is it something we are avoiding with the per se approach we are taking with marijuana? With alcohol use, there is the argument, “I am a big guy, I can drink more and not be impaired.” It is a rather subjective argument that goes back and forth about impairment, when what we are really trying to do is to limit the presence of something in a person's system.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Mr. Speaker, the objective or goal here is not necessarily to limit the amount of a substance in a person's system, but to prevent people from driving while they are impaired by any substance.

It is absolutely difficult for us to ascribe particular levels of individual impairment to particular THC or alcohol levels, although with alcohol it is much easier. However, we we cannot just throw up our hands and say that it is tough, so we are not going to do it. We have to establish a legal minimum, some legal standards on which we can operate. We may refine them later on and lower them, but for now it is certainly unacceptable for people to be driving with more than the prescribed levels of THC in their bloodstream.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, we are debating something that is very important and that really has an impact on the lives of Canadians, namely, impaired driving.

What is concerning to me first is that this is being partnered with Bill C-45. The government's attitude is, let us legalize marijuana and then talk about impaired driving. Clearly, the government members know that when legalization of marijuana occurs, we are going to have more impaired drivers on the road. Although I know it is an important discussion and that we need to have better laws for impaired driving, it is very upsetting and concerning that the bill is being rushed through in partnership with another bill that would increase impairment.

Members of the House come from all sorts of legal backgrounds. We have heard some dry facts, but almost everyone in this House has been touched in his or her life by impaired driving. I just want to put some personal perspective on this before I get into some of the details of the legislation, some areas that could be improved and some areas of concern.

I worked in a rural emergency health centre and clearly remember being on call one night and getting called into the health centre. There had been a single father and his young four-year-old daughter on a motorcycle. He had pulled over to the side of the road to make some adjustments, and then an impaired driver, in this particular case a drug-impaired driver, had struck the motorcycle. The vehicle had careened off the road and struck the motorcycle, killing the dad and leaving the daughter standing on the side of the road. At that point the impaired driver took off, and then, many miles farther on, went into a ditch. I was called in to deal with a deceased young dad and a four-year-old girl who had lost her father and had been left at the side of the road for a long time beside the body of her father before someone had passed by and called an ambulance. This is what we are talking about. This is about young girls losing their fathers. It is about mothers and sons. It is about family members and friends. Everyone is affected by this, so we have to be very serious and careful with this legislation.

This brings me to my first disappointment. The amendment that my colleague suggested was for a mandatory minimum sentence when impaired driving causes death. The member was not calling for life imprisonment or 30 years. The member suggested that an appropriate mandatory minimum sentence would be five years. If we lose a relative because someone chooses to take a substance and drive impaired, causing a death, the member sees a five-year mandatory minimum sentence as being perfectly appropriate. In our system, we also have to remember that this does not mean the individual would spend five years in jail. It means that in perhaps two or three years, that person would resume his life. It is a huge disappointment. It is so wrong, and it fails the sensibilities of so many Canadians who wonder how we could say that a five-year mandatory minimum sentence for impaired driving causing death is appropriate. That really is a failure.

As has been noted, impaired driving causing death is one of the leading criminal causes of death in Canada. These are not statistics that we should be proud of. As we look at other comparable countries, Canada's statistics are not very good. Again, I have to say that we already have statistics that are very concerning, and now we have two partner pieces of legislation that will inevitably increase our concerns in those terms.

There are three specific issues that point to the rushed state of this legislation. By Canada Day in 2018, the Liberal government wants Canadians to be able to celebrate by getting high on marijuana. Perhaps the Liberals believe it will help the fireworks look a little brighter; I do not know.

They are in a rush and have Canada Day as their target, which to me is a bit appalling. In their rush to deal with Bill C-45, the legalization of marijuana, they are rushing Bill C-46 without the proper due diligence in three areas: testing ability and levels, training and resources, and education.

We have talked a lot about testing levels. The presence of something like THC in someone does not actually measure impairment. I have heard the argument that we are just measuring levels, and impairment does not matter. I would argue that with alcohol, we tend to know that .08 is a level that is consistent with impairment in most individuals, whereas with THC, there is a much bigger disconnect. The association of police chiefs agrees with that.

The Canadian Society of Forensic Science, which has been tasked by the federal government, has suggested it is a controversial exercise to set a limit and that “there is not currently substantive and consistent scientific evidence upon which to base [those] limits.” These are the experts who have some concerns about the ability of a roadside device to test limits and to test impairment, which again is a bit of an issue.

The next area of concern is the police officers who will be asked to move forward with this legislation. I think there are about 65,000 police officers in Canada. They will all require training. From everything I understand, the witnesses who testified at committee indicated very clearly that they will not be able to have all our officers trained, nor do they have the resources to do so, by this arbitrary Canada Day 2018 date that has been set by the government.

The other area of particular concern is that everyone agrees on the importance of an education campaign. They talk about $2 million. Where is that campaign? If they are going for 2018, that is not a lot of months. It takes a long time. Anyone in the public health field knows that to penetrate and actually effect change, we need a public health approach that has had time to actually penetrate the consciousness of Canadians. I am not seeing anything. Perhaps I could be challenged on that. I would love to be challenged on that. However, if I am not seeing anything, and I tend to look at what is happening in the area, we can bet that nothing has penetrated the consciousness of the 20-year-olds, the 17-year-olds, the new drivers, and the 22-year-olds in terms of the new regulations and limits. The government is severely lacking in terms of any education or public health campaign.

Tackling impairment in a more robust way is an important thing to do. However, what is the rush? Let us get Bill C-45 right. Let us make sure we get the proper training done. Let us make sure things are in order. If they have to wait another bit of time to get Bill C-45 through, so be it, but what we will be doing is protecting the health and safety of Canadians.

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

Mr. Speaker, I want to first respond to what the member said she very much wanted to hear. The government has committed a substantial amount of money for public education, particularly around drug impaired driving. She will begin to see evidence of that made public in November, in the coming weeks.

Back in the 39th Parliament, in 2007, the government of the day introduced legislation that introduced the concept of the drug recognition expert and standardized field sobriety testing. That law was enacted some six months later and came into effect almost immediately, on July 2 of that year. The government of the day allocated $2 million for training of all law enforcement and drug recognition experts. Our government has been working with the law enforcement community for over two years on this. We have given them more than 14 months to prepare, and we have allocated not $2 million, but $161 million, for the training of police officers, for the training of additional drug recognition experts, and for the training of those thousands of officers who require training in standardized field sobriety testing. Not only are we providing training for the new technologies that are being made available, we are making sure that we are going to pay for those technologies. We have made available the resources they asked for.

I would like to ask the member for Kamloops—Thompson—Cariboo if she is reassured by the knowledge that this time, we have listened to what law enforcement has asked of us. We listened when they said they needed the resources and they needed the training, and we have responded according to their requests.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, I am just going on what I understand was testimony at committee, and testimony at committee was saying that the police forces across this country will not be ready in time for July 2018.

The other point that the member talked about is the public health program, which is going to start in November. I look forward to seeing that program start, but as I understand it, the budget that has been put in place for this public health program is very meagre and, to be effective, it should have started many years ago or many months ago. Again, I am just going on testimony at committee and knowledge in terms of effectiveness of a prevention public health program.

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, we have been hearing from members across that having a fixed penalty for impaired driving causing death is not a deterrent.

I will put this in simple terms so that maybe my hon. friends across the way can understand. I hate to make this analogy, because impaired driving causing death is very serious, but imagine if a speeding ticket was worth $10. Would people stop speeding? However, if it was worth $250, $300, or $400, which is where it is in some areas, I think people would think about it. If we take that analogy and apply it to impaired driving, if people know there is a consequence, will it be a deterrent?

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, not only if they know that there is a consequence will it be a deterrent, but, importantly, some of our most habitual, chronic, drug and alcohol abusers who drive impaired, who have the fines and a penalty, get out and drive again. If we have them off the road with a mandatory minimum, then it might be two years or five years when they are not out there using their vehicle to kill or injure other people.

[The Deputy Speaker, Bruce Stanton]

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 House resumed from October 20 consideration of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, as reported (with amendment) from the committee, and of the motions in Group No. 1.