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.

[The Chair, Liberal, Anthony Housefather]

Professor, normally, in Canada, what we do is we have an opening statement from each witness that summarizes their testimony and it goes to a maximum of 8 to 10 minutes. Do you have any opening statement you wanted to make to us about Bill C-46?

[Patrick Leclerc]

I was not talking about you, about the driving, I promise.

What we're looking for is twofold, whether it's in Bill C-46 that you're looking at, or through any other means. The first thing is that when it's under federal jurisdiction you have clear standards where you have safety sensitive positions. And we don't define them; we understand the legislators will. That's what I think Ms. MacRae and Mr. Leck, as well, mentioned. In the absence of clear standards or regulations, they had to go with their own and lead a costly and lengthy court battle. So, in terms of that, it's defining it.

The second thing that we're looking for is that we don't see right now the dialogue happening between the federal government and provinces and territories on a common approach to safety sensitive positions. In our case, what we're really concerned with is the public safety elements.

[Murray Rankin, NDP, Victoria, BC]

I understand.

In the interests of time, I'd like to ask a question of Mr. Leclerc and to my colleagues from the TTC. Mr. Leclerc, you said that transit is safer than driving a car and I couldn't agree with you more, especially if I'm driving the car. I haven't had a car for years because in my community of Victoria we have an amazing bus service. But that's absolutely true. What I'm not clear on is what you are seeking from our committee. We appreciate your testimony, the 10-nanogram standard and so forth, but we have a committee that is studying Bill C-46, which is to deal with impaired driving and the like. I think I heard you ask for a standardization across all safety sensitive positions. Is it your testimony that you want us to amend Bill C-46 to deal with safety sensitive positions? Are you seeking amendments to this bill or do you believe what we have before us meets your needs? I'm not clear.

[Murray Rankin, NDP, Victoria, BC]

Thank you very much. I'd like to pursue what Mr. Fraser was talking about.

For Mr. Yost and Ms. Thompson, I heard Ms. Thompson say that the government has a zero-tolerance approach, yet I understand we're going to have per se levels set by regulations under Bill C-46 of two nanograms, and five nanograms as well. If the Australians have a presence-absence system, isn't that essentially what a zero-tolerance level would mean? I'm told on the other hand that we're going to have regulations that won't set that, so I'm confused.

[Patrick Leclerc]

Thank you, Mr. Chair.

Members of the Standing Committee on Justice, let me begin by thanking you for your invitation to appear before you today as part of your study on Bill C-46.

My name is Patrick Leclerc and I am the president and chief executive officer of the Canadian Urban Transit Association (CUTA).

CUTA is the influential voice of the public transit sector across Canada. Our membership includes all transit systems in Canada, private sector companies, government agencies and urban mobility partners.

The safety of our communities is closely linked to the safety of our transit systems. Each year in Canada our members provide over two billion trips, drive over one billion kilometres, and are on the road for more than 53 million hours, all that in mixed traffic.

A few years ago, and you may remember this, CUTA worked hand-in-hand with transit leaders, transit unions, MPs, and senators to successfully and unanimously amend the Criminal Code to make assaulting a transit operator an aggravating factor in the determination of the sentence.

The reason was simple. There are about 2,000 assaults against bus operators across the country each year. The situation is dangerous and unacceptable. While some pointed to the fact that 2,000 assaults over two billion trips represented about 0.000001% assault per transit trip, everyone agreed, including the members of this committee, that assaulting a bus driver represented a serious public safety issue that needed to be addressed. It was a matter of public safety back then, and we're now back in front of you today with exactly the same consideration in mind, public safety.

Transit riders should feel confident that getting on a transit vehicle is safe. In fact, it is much safer than getting in a car. Our transit operators care deeply about their passengers. They have their safety in mind at every turn. They are well-trained, very professional, and they provide excellent service to our communities. There's no doubt, Mr. Chair, that the vast majority of our transit operators would never drive a vehicle while impaired by drugs or alcohol.

Unfortunately, there are cases where drivers or other employees perform their duties while impaired by alcohol or drugs. This information comes from the experience of the U.S. transport networks, where random tests are mandatory, as well as the recent program implemented by the Toronto Transit Commission.

While this is the exception and not the rule, the few cases of alcohol- or drug-impaired driving are a few too many. As I mentioned, it is not just about drivers of vehicles. When passengers take public transit, their safety also depends on the work of mechanics, supervisors, inspectors, engineers and managers, all of whom have a role to play in ensuring the safety of all public transportation operations.

In addition to public safety this issue is also a matter of workplace safety. It's management's responsibility to ensure transit employees are safe at all times. Transit systems involve heavy-duty machinery, safety sensitive duties, and no shortage of ways in which an impaired person could put their fellow workers at risk. While transit operations for the most part sit outside the federal government's purview, the government does have a role to play in providing clear leadership and an unambiguous direction on safety-related issues surrounding the legalization of cannabis, such as recommended by the task force on cannabis legalization and regulation.

In addition to establishing clear mechanisms to allow for random alcohol and drug testing for safety sensitive positions under federal jurisdiction, the government needs to show leadership and work with provinces and territories to ensure the approach to public safety and safety sensitive positions as it relates to the use of cannabis and impairment in the workplace is consistent from coast to coast to coast.

I will now turn to my colleague from the TTC, Megan MacRae.

[Kathy Thompson, Assistant Deputy Minister, Community Safety and Countering Crime Branch, Department of Public Safety and Emergency Preparedness]

Mr. Chairman and committee members, thank you very much for the opportunity to speak to you today from a law enforcement and public safety perspective regarding Bill C-46.

As you know, my name is Kathy Thompson. I'm the assistant deputy minister at Public Safety Canada and I'm responsible for the drug file, principally. I'm joined today by my colleagues. We're here and we're pleased to answer any questions you may have with respect to Bill C-46 from our organization's perspective.

I recognize that you've already benefited from hearing from Minister Wilson-Raybould and Justice officials with respect to the bill. You've also heard from many other witnesses and stakeholders and we've been tracking that with interest.

Bill C-46 proposes specific enhanced measures to deal with impaired driving and driving under the influence of both drugs and alcohol. Part 1 of Bill C-46 proposes to enact new Criminal Code offences prohibiting prescribed levels of drugs in the blood within two hours of driving and authorizes police to use oral fluid screening devices at the road side. Part 2 of Bill C-46 will modernize and simplify the transportation provisions of the Criminal Code by repealing all transportation offence provisions and replacing them with a new part. My submission today will focus on matters related to Part 1 of Bill C-46. As Minister Goodale noted recently before the Standing Committee on Health with respect to the review of Bill C-45, the cannabis act, this proposed legislation, Bill C-46, is meant to address a problem that exists currently concerning impaired driving, but also to ensure public safety in view of the creation of a new cannabis regime.

The government is committed to supporting the implementation of Bill C-46, through screening, prosecution, public education, in order to send a clear message to Canadians that driving under the influence of any drug whatsoever is dangerous and criminal.

To begin, in terms of the broader public safety in law enforcement context, impaired driving continues to kill or injure more Canadians than any other crime. While alcohol-impaired incidents are declining, recent statistics show that the number of police reported drug-impaired incidents increased 11% from 2015 to 2016 for a total of about 3,100 incidents, which accounts for approximately 4% of all impaired driving offences. The number of police reported drug-impaired driving incidents is believed to be under-reported because detection requires specialized training, as we'll discuss shortly. If alcohol and drugs are present, it's easier for law enforcement to pursue only the alcohol impairment driving offence. Drug-impaired driving is a challenging offence to prosecute, as it requires proof of driving impairment, as well as impairment caused by a drug. Unlike alcohol, there is no separate offence for driving over a legal drug limit. Additionally, there are limited tools and training at present for front-line officers to detect drug-impaired driving.

On September 8, 2017, the government announced funding in support of Bill C-46 and in support of Bill C-45 as well. For Bill C-46, for drug-impaired driving, it committed up to $161 million for training of front-line officers on how to recognize the symptoms of drug-impaired driving, building law enforcement capacity across the country in support of this, providing access to drug screening devices, developing policy, bolstering research, and raising public awareness around drug-impaired driving, which I know has been a point that's been driven home in your discussions.

An amount of $80 million over the next five years will be available in order to provide access to drug screening devices in the provinces and territories, and to improve training for all police officers so that they are able to enforce new strengthened legislation.

Public Safety Canada has already engaged with provinces and territories to identify the current level capacity used to control and determine impaired driving. This initial work will help to establish how these funds are distributed across the country, and we will continue to engage all partners to further flesh out the allocation of these funds to ensure the most effective strategic use.

Building law enforcement capacity across the country to address impaired driving will be met by an increasing number of officers trained in standardized field sobriety tests, or SFSTs, and also drug recognition experts, or DREs, as we call them. There are approximately 3,400 SFST-trained officers in Canada, which is about 15% of front-line officers. These officers perform a set of divided-attention tests at roadside, which provide evidence that a driver is impaired. At the moment they are trained to recognize alcohol impairment only.

If the driver fails the test, the officer has reasonable grounds to believe there is impairment and can have further investigative tests conducted by a drug recognition expert, who is a police officer trained to detect impairment by drugs. There are approximately 600 DREs in Canada currently. In the proposed approach Public Safety is pursuing with provinces and territories, the intention is to have approximately 7,000 officers, representing about 33% of the front line, who are SFST-trained over the next two to three years, with a 50% coverage within five years. This number will then continue to increase as training institutes implement new training into their core curriculum. The objective is to put in place a “train the trainer” program across the country as the most efficient approach to meet these levels. The number of DRE-trained officers will increase by about 250, to about 800 officers.

In addition to training, further capacity for law enforcement to pursue impaired driving is being built through the testing and deployment of oral fluid screening devices. Public Safety is working with the RCMP and the Department of Justice to establish standards for these devices and have manufacturers submit their devices to be tested against these standards, with the aim of recommending the devices to the Minister of Justice, and allowing their initial deployment by spring 2018.

Last winter, the Department of Public Safety and Emergency Preparedness and the RCMP worked with seven police agencies across the country to conduct a pilot test on two oral fluid screening devices. The police indicated that the devices were generally easy to use in various weather conditions and temperatures, as well as various lighting conditions.

Another critical element of the work under way to address drug-impaired driving relates to public awareness. As I alluded to earlier, we know that this raises an important issue. Earlier this year Public Safety and partners, including the RCMP, used social media channels to encourage Canadians to drive sober as well as to dispel some of the myths that police cannot tell if you're driving high. This included a Twitter campaign. It was launched around March of last year, and it reached more than 13 million social media users. Presently, Public Safety Canada is broadening its reach and developing a national, multi-year public awareness campaign around drug-impaired driving specifically targeting youth, which will roll out very shortly this fall with radio, television, print, in movie theatres, and of course, through social media.

In addition, these efforts will be reinforced through work with provinces and territories and law enforcement agencies, indigenous policing services, and relevant stakeholder organizations, such as MADD and the Canadian Automobile Association, to inform the public and prevent drug-impaired driving.

There will also be federal efforts to improve research and data collection, thereby creating a better understanding of drug-impaired driving issues and making it possible to assess our efforts and investments in those areas, and also to improve accountability.

In summary, Mr. Chair, through this important legislation and related efforts, the government has indicated that it is committed to a zero-tolerance approach when it comes to drug-impaired driving and is proposing to take strong action to create new laws and initiatives to combat this crime. For its part, Public Safety and the RCMP are working together to develop supporting materials, training, and tools to help all law enforcement agencies across the country as well as border services to effectively and efficiently enforce the drug-impaired driving legislation.

Thank you.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Okay. My thanks to both of you.

Mr. Comeau, with the time that's remaining to me, can you just walk me through what it would look like with what you're suggesting we do differently from what's written in Bill C-46?

There's a roadblock, an officer comes up to the car, asks for the Breathalyzer, and it shows positive. What happens now?

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Could we ask the Elizabeth Fry Society for an official memo to this committee as it pertains to making sure we can protect these vulnerable communities as we're heading down the path of looking at the actual legislation for Bill C-46?

[Savannah Gentile, Director, Advocacy and Legal Issues, Canadian Association of Elizabeth Fry Societies]

My name is Savannah. I'm the director of advocacy and legal issues at the Canadian Association of Elizabeth Fry Societies, CAEFS.

I want to thank you first of all for accommodating our last-minute switch. Our president, Diana Majury, sends her regrets that she could not attend.

Our concerns are mostly general in nature. I want to start with the lack of resources available for those who are struggling with mental health and addiction issues. Our concern is that coming out with a bill that creates harsher punishments and penalties will capture those who are struggling with mental health and addiction, and it is our position that prison is never a useful response to drug-related crimes. It is an intervention that comes too late and fails to treat the source of the problem.

We're further concerned about access to justice. CAEFS is concerned that Bill C-46 will disproportionately impact members of racialized and marginalized groups, who are more likely to be traffic stopped, to be charged, and to receive convictions and harsher penalties. And this is if they don't plead out in the first place.

We are further concerned that a bill of this nature will lead to an increase in the criminalization of our youth. It is our position that more resources need to be diverted to communities to address and better equip them to educate and to heal.

Thank you.

[Felix Comeau, Chairman and Chief Executive Officer, Alcohol Countermeasure Systems Corp.]

Thank you.

Good afternoon, everyone. Thank you for the opportunity to present some information to the committee. I applaud the committee and the work of the government in the changes being made with Bill C-46.

This brings up three areas of comment. The first is related to proposed subsection 320.27(1), which in part requires “reasonable grounds” in order to require a drug test. The test for reasonable grounds has had its day in court for many years for alcohol testing, since the mid-seventies. Of course, the courts are filled with cases where this comes forward. I would recommend, in the case of proposed subsection 320.27(1), that instead, proposed subsection 320.27(2) be expanded to include mandatory drug screening through the use of oral fluid screening devices. There is a 10-year history of this type of case law in Australia, with a very effective program countrywide.

The second thing I wish to draw your attention to is proposed paragraph 320.28(2)(b), which requires “samples of blood” for subsequent analysis in the case of drugs of use. Once again, if one draws upon the information historically and throughout the world, samples of saliva are well known. In fact, there is very good data to support the use of saliva samples, oral fluid, instead of blood. It's easy and it's reliable.

We have a chart in the presentation, which will be shown later on, that illustrates the work of Drs. Huestis and Cone from 2004. It has been replicated many times, and shows that oral fluid for THC mimics the concentration of that drug compound in blood from a few minutes after smoking. The oral contamination of the cannabis is removed from the oral cavity quickly, and one sees a track of oral THC with blood. The same occurs very well with many other drugs, but THC was of interest.

The third issue is with regard to proposed paragraph 320.28(4)(a), which enables the collection of a biological sample of “oral fluid or urine”. I would propose that “urine” be struck from this part of the bill, because urine is useful in post-mortem cases. We wish to deal with living drivers. Urine is a collection of what has been—past tense. The drug that you're interested in could have been there from days, weeks, or even months ago. It has not very good evidential value for a criminal or even a provincial case. Again, I would recommend that “urine” be removed there.

As a background to these statements, particularly for THC, we know that the drug recognition experts have been involved in the United States, and more recently in Canada, with the apprehension and prosecution of drug-impaired drivers, whereas in many other places in the world, notably in Europe and Australia, the use of oral fluids has been the predominant choice. If we look at, in the case of THC, the time course of occurrence, we see that within minutes of smoking a joint, or a cigarette containing a modest amount of cannabis, one can peak well into 140 to 150 nanograms per millilitre of THC in the blood. Then you'll see the time course where it drops to less than 20% of its peak within an hour. Within two or three hours, there's relatively little left in the body to be detected. So if one is relying solely on field sobriety tests and the work of DREs, one is limiting the opportunity to collect evidence at the roadside.

Again, in Europe and in Australia, which have been doing this for 10 years or more, oral fluid is used, and the apprehension of drugged drivers is very predominant.

We can look, further, at the work of another researcher. This is in the United States, where one is looking at the frequency of occurrence of THC in blood samples collected after a DRE examination. One can see that fully 70% of the samples have little evidentiary value. They're below five micrograms per litre, post-collection. This is a blood sample collected after a DRE examination. It's very difficult.

If one is reviewing the legislation currently with the inclusion of drugs with alcohol, one would like to use what has been gained over the past 50 years with breath alcohol testing in Canada. Alcohol is very different from THC and vice versa. Alcohol is water soluble. It distributes through the body. Its effects are proportional to the concentration of alcohol.

THC is not that way. THC is fat soluble. It attaches to the lipid molecules in the body and is resident in the brain for a longer period of time than its concentration in the blood. One has to be quick about determining the drug-impaired driving at the roadside, collect a sample for evidentiary value, and then move onwards.

As for the collection of oral fluid, as I mentioned, it's very simple. The devices are well known. It's as simple as a kit such as this. To collect a sample, that's it. A simple swab of the tongue, and it's done. You press the button, and the test starts. The results are known in five minutes. That's an oral fluid test.

For confirmatory testing, there are commercially available kits on the market being used extensively in countries such as Australia, which use oral fluid as the secondary sample for evidentiary value. It's collection is as simple as a sucker. Put it in the person's mouth. Hold it there for a few minutes. The end turns blue. You have your sample. You take it and put it in a vial, wrap it, mark it for evidential value, and there you are. It's a simple procedure to use oral fluid.

My recommendations are that we use mandatory alcohol and drug screening at the roadside; that we concentrate on the use of oral fluids in addition to blood, because blood is already in the Criminal Code for alcohol offences; that we don't limit the police officers at the roadside with the requirement of reasonable suspicion, which we know is going to be problematic in the courts.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Ladies and gentlemen, it gives me great pleasure to call to order this meeting of the Standing Committee on Justice and Human Rights, as we continue our study of Bill C-46.

It gives me great pleasure to welcome all of these important groups testifying before us today.

From the Alcohol Countermeasure Systems Corporation, we have Mr. Felix J.E. Comeau, chairman and chief executive officer. Welcome, Mr. Comeau. We also have Mr. Abe Verghis, supervisor, regulatory affairs. Welcome, Mr. Verghis.

Joining us from the Railway Association of Canada are Gérald Gauthier, vice-president, and Simon-Pierre Paquette, labour and employment counsel.

Welcome, Mr. Gauthier and Mr. Paquette.

From the Canadian Association of Elizabeth Fry Societies, we have Savannah Gentile, director, advocacy and legal issues. Welcome, Ms. Gentile.

We are going to start right away with testimony. We will move to Monsieur Comeau and Mr. Verghis.

[Dr. Thomas Marcotte, Assistant Professor, Department of Psychiatry, University of California, Co-Director, Center for Medicinal Cannabis Research]

Thank you.

Good evening. I appreciate the opportunity to share some information as you consider Bill C-46, an act to amend the Criminal Code.

I'm Tom Marcotte. I'm a professor of psychiatry at the University of California San Diego, and co-director of the University of California Center for Medicinal Cannabis Research. I'm an investigator on two current studies examining the impact of cannabis on driving.

Today I'd like to provide some background on the challenges in determining whether an individual's driving has been impaired by cannabis.

In controlled simulator and on-road studies, it's been well established that acute cannabis intoxication results in slowed reaction times, including delays in braking, reduced ability to maintain one's lane position—in other words, swerving—and reducibilities relating to the judgment of speed and distances. The effects of cannabis are amplified by alcohol, although it's not resolved as to whether this is an additive effect or synergistic, in which the two combined are worse than simply adding the effects together. Also, in contrast to alcohol, cannabis users are more likely to judge themselves to be impaired and to adjust behaviour, by driving more cautiously, as one example. However, of course, this is not universal.

Findings from the real world have been mixed. Some studies have found a twofold increase in crash risk when THC is present, while other studies have found no increased risk once adjusting for factors that often travel with cannabis use and risky driving, such as younger age and being male.

Here's one example of the difficulty in interpreting crash results from the states that have legalized cannabis.

In Colorado, it was widely publicized that there was a dramatic 50% increase in the number of fatalities in which marijuana was present following legalization. However, as seen in this next graph, there was only a marginal increase in the total number of crashes in that same period. This mirrored recent data demonstrating that, at a national level, there was also an increase in fatal crashes.

What is clear is that at this same time, the State of Colorado increased the amount of screening they were doing to detect THC. Therefore, it is unclear whether the increased prevalence of fatalities with THC present represents a situation in which increased cannabis use might have led to more fatalities, or whether it is primarily a case that authorities are more frequently looking for the presence of cannabis and finding it.

On the other hand, a recent report has indicated that there has been an increase in insurance collision claims in states where recreational cannabis has been legalized compared with other states. These are the much more common non-fatal crashes. When examining claim rates in Colorado, Washington, and Oregon, the authors found a 3% increase in claims relative to states that did not legalize use, with there being some variability between the states.

What might be some of the reasons that we see significant effects during controlled studies but a more modest effect in the real world? There are a number of possibilities, but to name just a few, in part, epidemiologic findings are based upon imperfect data. For example, the fatality reporting system in the United States often has incomplete reporting, and there's typically a significant delay between the time of a crash and the collection of blood. In addition, THC can be detectable in the blood long after the impairing effects have resolved. Thus, the impact of acute intoxication may not be readily apparent in these analyses, since the THC-positive group includes a much larger number of individuals who might have smoked much earlier and were not impaired at the time that the blood was collected.

On the other side, it is also possible that in some of our studies, while we're able to detect acute effects of cannabis on tasks such as swerving, they may not be of significant magnitude to dramatically affect real-world driving. As an example, in a study of low-dose THC for the treatment of spasticity in multiple sclerosis, we found a significant effect on driving two to three hours after dosing. However, the magnitude of that effect was not dissimilar to what other studies have found for individuals in the initial phases of starting antidepressants, or the residual morning-after effects of taking a sleeping medication the night before.

Drug recognition evaluations are the current gold standard for establishing substance-impaired driving. We're currently in the midst of a large study, funded by the State of California, to better characterize the impact of cannabis on driving, and to investigate whether there are additional effective approaches to identifying those individuals who are or are not impaired due to cannabis.

As part of this study we're working with DRE instructors to explore the validity of select components of the DRE evaluation, as well as assaying for the presence of THC, its metabolites, and other cannabinoids to determine whether they might provide reliable information regarding the time since the participant smoked or, ideally, relating to driving impairment.

Another unique aspect of this study is that we are utilizing novel iPad-based assessments to see if such tests might serve as a useful adjunct to the DRE evaluation. Unlike alcohol, where impairment readily presents itself physiologically, such as staggering and difficulty walking, cannabis effects are primarily cognitive and a current DRE evaluation includes only modest assessments of these abilities.

Particularly relevant to Bill C-46, studies to date raise concerns regarding the validity of using THC levels in blood to identify cannabis-impaired drivers. For example, a study by the American Automobile Association examined 602 cases in which DREs have identified drivers as being impaired, with THC being the only substance identified in the blood.

In this graph, the level of THC runs across the x or the horizontal axis and a per cent of drivers with that THC level is represented on the y or the vertical axis. As you can see in these impaired drivers, there was a wide range of THC levels. The median value or number where half the drivers were above and half the drivers were below was around five, indicating that 50% of these impaired drivers had values below the five nanograms per millilitre cut point at the time the blood was drawn. Thus, drivers can be impaired, yet have THC blood levels below a cut point that some governments have chosen as being indicative of driving under the influence.

Conversely, the table on the left shows that individuals who are likely unimpaired can also have detectable THC levels in their blood, even days after smoking. In this case, participants stayed in a hospital for 30 days so they could be monitored for any cannabis use. They then smoked cannabis and blood was subsequently drawn each day. As you can see in this table, some individuals were registering values of two nanograms per millilitre of THC, even though it had been up to a week since they smoked.

Why is it that we can have individuals with low levels of THC who are impaired, as well as individuals with low levels who are not impaired? The graph on the right is from Dr. Marilyn Huestis, a researcher in cannabis pharmacodynamics. Across the bottom we see THC levels and on the side we see, in essence, how high the person is feeling. This figure shows time in a counter-clockwise fashion, so as you see 1.8 minutes is the first and second is 4.5 minutes and so forth. After smoking, THC levels rise very rapidly so they reach a peak in about 10 minutes. At the same time the person is increasingly feeling high, so you see going to the right it's increasing, but it's also going up, so they're feeling higher. At this point, however, THC levels begin dropping to the point where about an hour after smoking they're now down to fairly low levels as you move across to the left in this graph.

The person, though, is still feeling high during this time. A few hours after smoking the highness starts diminishing, so it starts dropping down the vertical, but THC levels are not changing dramatically during this period. As you can see, it's between zero and 10. This tells us that someone can be high with elevated THC levels, someone can be high with modest levels, someone can be high with low levels, and someone can also have low levels and not be high. To further complicate this, Dr. Huestis has demonstrated that these patterns vary, depending upon whether one is a frequent or infrequent smoker.

At least for screening, oral fluid instruments hold some promise, they're easy to administer, relatively non-invasive, and may help identify individuals who recently used cannabis. This approach, however, is also not without complications. This graph shows results from a study of oral fluid THC levels in individuals who smoked a 6.8% THC cigarette. More studies are needed and ours is assessing the issue, but in general it's believed that the most significant impairing effects happen within the first few hours of smoking and then dissipate over the following few hours.

As you can see here in this graph, however, at least in this one study, a proportion of individuals were at or above a five micrograms per litre cut point in oral fluid eight to 10 hours after smoking.

I mentioned earlier that we have a study going on. If the group is interested, during the discussion I'd be happy to provide more details, but for this purpose I'll skip it and just end with a few concluding points.

Per se laws can be very effective, but this is particularly true when there is a robust relationship between fluid levels and actual driving impairment, as there is with alcohol. As can be seen in some of the data presented earlier, I don't think this is yet the case for cannabis. I'm also aware from attending many meetings that prosecutors remain concerned that a cut point designating impairment may lead the public to assume that a driver below that cut point is not impaired or is less impaired. As seen in the DRE data I presented earlier, low levels do not necessarily mean low impairment.

Some individuals have also expressed concern that the DRE evaluations may not be adequately sensitive to the effects of cannabis and that one should use fluid levels to identify impairment. I would argue that it is very important to continue to use behaviour as a key indicator of driving-related impairment given the uncertainty in interpreting fluid levels.

Last, I encourage you to support additional research into identifying new methods that might help law enforcement identify both those who are impaired and those who are not impaired due to cannabis. This includes biological, psychophysical, and behavioural approaches.

As you know, the complexities associated with detecting cannabis-related driving impairment also have increased our awareness regarding the continuing problem of impairment due to prescription medications. Perhaps new approaches to detecting impaired driving would end up being applicable to these drug classes as well.

Thank you, and I'm happy to take any questions.

[Dr. Barry Watson, Adjunct Professor, Faculty of Health, Queensland University of Technology, As an Individual]

Thank you.

Good morning from Brisbane, Australia. I would like to thank the committee for the opportunity to speak to you today about Australia's approach to reducing alcohol-related road crashes. I hope this will assist you in your deliberations relating to Bill C-46.

Over the last 30 years, there has been a substantial reduction in alcohol-related road fatalities in Australia, as well as a major shift in community attitudes relating to drink driving. Today I would like to give you a brief overview of the various countermeasures that have contributed to these changes.

To set the scene, this graph shows the long-term trend in the percentage of drivers and motorcycle riders killed in Australia with a blood alcohol concentration of .05 grams per 100 millilitres or more, which is the general alcohol limit across the country. As can be seen, Australia experienced a major decline in alcohol-related fatalities during the 1980s and 1990s, similar to many other motorized countries around the world, including Canada. While the number of fatalities plateaued during the early 2000s, there has been a renewed decline since 2008. This long-term reduction in alcohol-related fatalities is one of the major road safety success stories in Australia, and has involved the introduction of a range of countermeasures.

Moving to the next slide, I would like to summarize the evolution of drink driving countermeasures in Australia. This list is not meant to be exhaustive, and I've kept the time frames relatively broad, since the countermeasures were implemented at different times across our states and territories. The foundation for our approach was laid in the late 1960s and early 1970s, when all the states adopted per se drink driving laws. During the 1980s, this approach was strengthened by the lowering of our general alcohol limit from .08 to .05, and by introducing random breath testing, or RBT, and mandatory penalties for drink driving, including licence disqualification for all offenders.

During the 1990s there were further refinements, with the introduction of a zero alcohol limit for learner, provisional, and professional drivers, and ongoing strengthening of penalties. While most states introduced some form of rehabilitation for offenders during the period, it remains voluntary in some states. Since the early 2000s, most of the Australian states have introduced alcohol ignition interlocks and vehicle impoundment for high-range and/or repeat offenders.

To illustrate the impact of these countermeasures, I would like to present a case study from my home state of Queensland. We commenced breath testing in the late 1960s, and moved to a .05 alcohol limit in 1982. However, we delayed introducing random breath testing, despite its widespread adoption in other states, due to the perceived civil liberty concerns on the part of the then Queensland state government. Instead, the government introduced a weaker form of breath testing in 1996, called “reduce impaired driving”, or RID. This program was similar to the sobriety checkpoints currently relied on in many countries. The police could randomly pull over drivers, but could only breath test those they suspected of drinking. Finally, after mounting pressure from road safety advocates and encouraging evaluations from other states, the Queensland government introduced full-blown random breath testing in 1988, which enabled the police to pull over drivers at any time or place and request a breath test. These changes were each supported by the strengthening of penalties and extensive public education.

To illustrate the effects of these initiatives, this graph compares alcohol-related fatalities in the time periods following the introduction of each of the key countermeasures. As can be seen, the introduction of the .05 limit, RID, and random breath testing were all associated with stepwise reductions in the number of alcohol-related driver and rider fatalities, all of which were significant and consistent with other evaluations. The data indicated that the introduction of .05 was associated with a 12% decline in alcohol-related fatalities, while the introduction of random breath testing was associated with a further 18% decline in fatalities over and above what was the case when the sobriety checkpoint program was in place.

The next slide leads me to tell you a little bit more about random breath testing, since it is the primary drink driving law enforcement tool used throughout Australia. As already mentioned, the legislation underpinning random breath testing allows the police to pull over and breath test drivers at any time, irrespective of whether or not they suspect that they've been drinking. The majority of RBT operations across Australia are conducted in a highly visible stationary mode, using either large buses, colloquially known as “booze buses”, or marked police cars. While these operations are designed to catch drink drivers, the key goal is to promote general deterrence through their highly visible nature.

Over the years, RBT has been supported by extensive mass media advertising, and various evaluations have confirmed that it has produced long-term reductions in alcohol-related crashes. Importantly, there is also very strong community support for RBT, with a recent survey showing 98% approval nationally for the countermeasure.

Here are some photos of different types of RBT operations. In the top left, you can see a booze bus parked on the side of the road. Depending on the traffic volumes, the police will either pull over every driver that passes by or randomly select vehicles from the traffic stream to administer a preliminary breath test. This process is relatively quick, with drivers only detained for a minute or two. However, if the driver fails the preliminary breath test, that driver is then required to undertake an evidentiary test in the bus.

On the right and bottom left are examples of car-based RBT operations. In this mode, drivers who fail the preliminary breath test are transported to a police station to undertake the evidentiary breath test.

As already noted, considerable police resources are devoted to RBT, with many states conducting the equivalent of one breath test per licensed driver every year. In a state like Queensland, where we have over three million drivers, that means over three million breath tests are performed each year.

As a result, exposure to RBT has steadily increased over time and now is very high across the country. As shown in this graph, around 80% of drivers surveyed nationally now report having seen RBT in the last six months. More particularly, over one-third of those surveyed report having actually been breath tested in the last six months.

To conclude, over the last 30 years, Australia has experienced a major decline in drink driving fatalities. However, challenges remain. Alcohol remains a significant factor in around 20% of our driver and rider fatalities. Recidivist drink drivers remain a concern, as they are overrepresented in offences and crashes. The uptake of alcohol ignition interlocks and rehabilitation programs remains relatively low in some states.

Lastly, as will be explained further in a later session by another of my Australian colleagues, Assistant Commissioner Doug Fryer, all the Australian states and territories have now introduced random roadside drug testing based on the RBT model. This has inevitably created competition for scarce police resources, and it highlights the need to strike a balance between the amount of testing performed to detect alcohol versus other drugs. Given that research continues to show drink driving as being riskier than drug driving alone, it is essential that current breath testing levels are not compromised in order to conduct more roadside drug tests.

[John Gullick, Chair, Canadian Safe Boating Council]

That's correct.

Thank you very much to the chair and the committee for inviting us to sit before you today. We're now going to take the focus away from our roads to our waterways.

I'm going to take a few minutes to talk a bit about our organization and who we are, so that you have an understanding. We're a national organization. Directors and members come from coast to coast to coast. We have 20 directors, with me and an executive committee. We're run by volunteers. We have no ongoing paid staff and no ongoing government funding support, and we've been established for over 25 years.

Our mission is to reduce the incidence of deaths that occur as a result of boating activities; to cultivate partnerships with government, water safety organizations, and the boating industry; and to partner to provide significant boating safety outreach to various boating communities across Canada.

As for what we do, we offer safe boating campaigns. We conduct research. We have a number of boating safety resources. We carry out cold-water training. We offer the Canadian safe boating awards to recognize the efforts of others. We conduct an annual symposium. We conduct international and government liaisons with organizations such as the U.S. National Safe Boating Council, which would include the International Lifejacket Wear Principles agreement, and also with the national recreational boating advisory council and the Canadian marine advisory council.

I'd like to say in starting that we support the amendments in Bill C-46. We're in strong support of the amendments in the bill, and we also believe that the bill should reflect the consequences of the operation of all modes of transportation while under the influence of alcohol and/or drugs.

We have a recommended change to the current proposed amendments. In proposed section 320.11 currently, the definition of vessel “includes a hovercraft, but does not include a vessel that is propelled exclusively by means of muscular power” or human power. The Canadian Safe Boating Council's proposed change to the definition of vessel is taken from the Canada Shipping Act, 2001:

vessel means a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to method or lack of propulsion, and includes such a vessel that is under construction. It does not include a floating object of a prescribed class.

Really, in simple terms, this is the change we're requesting: the consideration that muscular-powered or human-powered vessels not be excluded under the definition of vessel. In the Canada Shipping Act, just to point this out, some of its objectives are to “protect the health and well-being” of individuals who participate in marine transportation, to “promote safety in marine transportation and recreational boating”, and to “encourage the harmonization of marine practices”.

Here are some statistics from the Canadian Red Cross on recreational and daily living boating immersion deaths by type of craft, by alcohol involvement, for victims of 15 years of age or older in Canada through the 20-year period from 1991 to 2010. The total number of boating deaths is 3,324. The total number of boating deaths with alcohol suspected or involved is 1,066, or 32%. For all powered vessels, it's 611, with alcohol involved or suspected in 18%. For all unpowered vessels—so this would be muscular-powered vessels, human-powered vessels—it's 375, with alcohol involved or suspected in 11%. Then there is the unknown type of vessels at 80, with alcohol involved or suspected in 3%.

According to a 2016 economic impact study by the National Marine Manufacturers Association, the NMMA, about 43% of Canadians, or 12.4 million, go boating each year. There are about 8.6 million boats in use in Canada. About 60% of those boats are human-powered vessels, such as canoes, kayaks, stand-up paddle-boards, etc.

For our conclusion and our recommendation, we at the CSBC believe that the definition of a vessel in Bill C-46 should include all vessels, even those that are exclusively muscle powered, and be consistent with the definition used in the Canada Shipping Act, 2001.

We are encouraged by the preamble of Bill C-46, which states that dangerous and impaired driving “are unacceptable at all times and in all circumstances”. As this is intended to modernize the statute to better reflect current impairment issues, societal changes to boating activities should also be considered.

Incidents involving powered vessels often include other vessels and others in boats. In the case of muscle-powered vessels or human-powered vessels, these incidents also involve the lives of others in the boats, the rescuers, and the consequences experienced by family members and the systems that support them. One just has to look at the statistics to see that we have a very high number of incidents involving alcohol in both powered vessels and muscular- or human-powered vessels.

I offer my thanks and will see if Michael has anything to add.

[Michael Stewart, Program Director, Arrive Alive DRIVE SOBER]

Good afternoon, Mr. Chair and members of the committee. Thank you for inviting Arrive Alive Drive Sober to provide our comments on Bill C-46. My name is Michael Stewart, and I am the program director with Arrive Alive. I am joined here today by the president of our board of directors, Ms. Anne Leonard.

For almost 30 years, our charity has provided leadership and programs to eliminate impaired driving, such as choose your ride and operation lookout. We enable people and communities to share resources and information intended to prevent injuries and save lives on our roads. We are recognized as a leader in the fight against impaired driving. In a recent government survey, our slogan and messaging was recognized by four out of five Ontarians, making it the most recognized campaign.

We have 85 members and stakeholders comprised of dedicated professionals and volunteers. We frequently partner with community groups, police services, public health units, schools, businesses, and government entities. Each year, we distribute for free over $100,000 in printed materials across Canada and receive over $12 million in donated television and radio airtime. In March of this year, one of our countermeasure campaigns, our wrecked car coasters received national and international media coverage, with interviews from coast to coast and as far away as Australia. Since the inception of our organization, impaired driving fatalities in Ontario have declined by almost 75%, demonstrating that comprehensive legislation and enforcement requires a third partner—effective public awareness—to save lives on our roads.

Arrive Alive commends the work of the federal government and its commitment to creating new and stronger laws to combat impaired driving. Introducing three new offences for drivers having specified levels of drugs in their system, making changes to the “over 80” offence, as well as increased penalties are improvements that will help us all arrive alive.

Drug-impaired driving has been included in our messaging for over a decade, but it has recently become of greater concern for Canadians due to the pending legalization of cannabis. In a recent nationwide survey conducted by State Farm, 80% of respondent’s voiced concern about people driving under the influence of marijuana, and 83% felt that there is not enough information about the risks that come with driving while high.

Bill C-46 is an important step forward, but it's critical that it be accompanied by a comprehensive plan of education and public awareness. We have heard a common misconception from both youth and adults that driving while high on cannabis is not only safe, but makes them better drivers. This dangerous myth underscores the critical need to ensure that all drivers know that driving while impaired by drugs is just as dangerous as driving while impaired by alcohol. The Canadian Centre on Substance Use and Addiction reports that in 2011, 21% of high school students who were surveyed in Canada said that they had driven at least once within an hour of using drugs, and 50% had been a passenger in a vehicle where the driver had used drugs. This data, in combination with these dangerous myths, creates a road safety hazard in and of itself that must be addressed not only by enforcement but by fulsome education.

According to Statistics Canada, police reported that drug impaired driving incidents have doubled since 2009. As well, our colleagues in states where cannabis has been legalized, such as Colorado and Washington state, have seen marked increases in drug-impaired driving. We have no reason to believe that this experience will not be replicated in Canada, but education and awareness are key to reducing the numbers of people who combine drug use and driving. We have seen sustained and consistent reductions in alcohol-impaired driving incidents. It clearly appears that the population of drivers who combine drugs and driving is distinct or different from the population that is well aware of the dangers of drinking in combination with driving.

Health Canada has stated that the government is committed to investing in a robust education campaign to inform youth of the risks and harms of cannabis use. We urge the members of this committee to accelerate the government’s pace and economic support when it comes to public awareness efforts. It is crucial to the safety of Canadians to be educated not only about the dangers of driving in combination with drugs, but also about the new consequences and blood drug concentration levels set out in Bill C-46. An absence of awareness and education will limit the impact and deterrent effect these increased penalties are intended to have. Given the brief time between now and July 1st, 2018, we encourage you to explore strategic opportunities for partnership on education campaigns.

Arrive Alive has been at the forefront in raising awareness about the dangers of driving while impaired by drugs. Our drug-impaired driving efforts to date include The Sober Truth About Driving High, a video PSA filmed in partnership with the CACP and the RCMP in 2012; our award-winning iDRIVE educational video that was shared, in partnership with Transport Canada, with every high school in Canada in 2011; a radio PSA entitled Potchecks in 2015; and our ongoing Eggs on Weed campaign that began in 2014.

We are going to continue to do our part, but we will need help, especially with the legalization of cannabis and Bill C-46.

Training officers and ensuring that they have the necessary tools in place to detect and remove impaired drivers from the road has been a key concern of our membership for many years. We know that training these officers to detect impairment and supplying them with devices takes time and money. While the federal government has announced $161 million to be divided up amongst the provinces, our police partners have warned us that there is neither enough time nor funding to have sufficient officers and approved screening devices ready for legalization. We encourage the government to continue to work with police services to determine what amount is needed to fulfill their training and research requirements. As the bill provides necessary tools to help law enforcement in this fight, it is paramount to ensure that they can be fully utilized across Canada.

While Bill C-46 is an important step in the right direction, it is unfortunate that the bill itself perpetuates a myth or misunderstanding amongst the public that accidents are the result of drug- or alcohol-impaired driving. Referring to drug- or alcohol-impaired driving that causes bodily harm or death as an “accident” implies that the criminal conduct and consequence happened for no apparent reason when, in reality, it was a person’s decision to drive impaired. We ask that the committee consider changing the terminology to “collision” to recognize this fact.

In conclusion, Arrive Alive Drive Sober supports the government’s efforts to create stronger legislation. It is with the help of tough legislation that we have continued to see alcohol-impaired driving incidents and fatalities decrease in Canada. However, effective public education and awareness was also instrumental in reducing those numbers. To combat drug-impaired driving like we have with alcohol, the government must provide ample funding and resources. Additionally, with the legalization of cannabis fast approaching, the government must look to strategic partnerships to create public awareness initiatives, both to educate Canadians about driving high, as well as to educate them on the new consequences outlined in Bill C-46. We would be happy to bring forward our track record in this area to assist you in this endeavour.

Thank you for your time and for the invitation to appear.