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.

[Michael Spratt, Member, Partner, Abergel Goldstein and Partners LLP, Criminal Lawyers' Association]

Thank you.

My name is Michael Spratt. I'm a criminal defence lawyer. I practise here in Ottawa, and I'm here for the Criminal Lawyers' Association.

In typical defence lawyer fashion, I filed a written brief, and I'll have to ask for an extension of time so that this committee can consider it. It was sent in today, but I'm sure it will be translated and distributed to you, so I won't go into more depth about the organization. That's all in the written submission.

The Criminal Lawyers' Association supports legislation that's fair, modest, and constitutional. While we support the very important objectives of protecting society from the dangers of impaired driving, we're not able to support this bill in the current form, given some of the legal and constitutional problems with it.

Now, in my written submissions, you'll see that we fully adopt the written submissions of the Canadian Bar Association and the brief from the Barreau du Québec, which are available to the committee. There are matters in there that I'm not going to touch on orally or in my written submissions, but we fully agree with them.

I'd like to touch on three areas. The first is the new offence of operating a vehicle or conveyance and being impaired within two hours after operating it; the second area is the method of taking the samples and demanding samples, and the last area is the random breath testing.

I think a bit of history might be important. I'm sure this committee knows it better than me, but this bill, Bill C-46, very closely resembles a private member's bill introduced last year, Bill C-226. I would commend the committee to examine the testimony presented at the public safety committee on that bill, given the overlap.

Of course, Bill C-226 is virtually identical to a bill introduced by the former government, Bill C-73. The reason I bring up that history is that the public safety committee found, for Bill C-226, that the legal problems presented by the bill far outweighed the potential benefits that the bill could deliver. The committee was also not convinced that the majority of the measures in Bill C-226 were appropriate. Much of the same problems exist in this bill.

Now, the first of those problems is the new offence itself. Currently, as you know, it's an offence to operate a vehicle while impaired or over the legal limit. In Canada right now, it's not an offence to drink alcohol, to drive a car, or drink alcohol after you've driven a car. It's an offence to be impaired or over the limit while you're operating the vehicle. Unfortunately, the proposed new section 320.14 dramatically changes that, and dramatically shifts how impaired law is going to play out on our roads and in our courts. That section extends the prohibition to being over the legal limit within two hours after ceasing to operate the vehicle. That is designed to combat what is not really a problem—but the bill says it is—bolus and post-driving drinking.

I can tell you that even the litigators who specialize in impaired cases bring these defences very rarely, and they succeed on an even rarer basis. It's not a problem that is plaguing our courts, but the solution to that problem as proposed by this bill is very problematic. This section is overly expansive and, as I said, it comes with little benefit.

What we're going to see here are constitutional challenges to overbreadth, but, more importantly, constitutional challenges to a reversal of the burden of proof. Under this section, if someone goes to a wine tasting or a cocktail party, drives there with no blood alcohol level, tastes some wine or drinks some scotch, and then comes under police scrutiny for whatever reason, a breath sample is demanded and ultimately that person blows over the legal limit, then it's going to be incumbent on the accused to present evidence about their state of mind, to in effect testify under the second prong of the exception that they weren't operating while impaired, and to call evidence from a toxicologist to read back their consumption to the readings.

This is an unprecedented and very dangerous aspect: reversing the burden of proof. It's even more problematic when this bill requires that the accused present scientific or toxicology evidence. Of course, that puts this defence, this exception, this reversal of the burden, out of the reach of individuals who experience poverty or are even part of the middle class. The court system is already out of the reach of those people, and this only makes the problem worse. It's ironic that the bill reverses that burden and puts that burden on the accused person, at the same time eliminating that burden completely from the crown to call that sort of expert evidence.

The second problem here is in proposed section 320.28, regarding a police officer's reasonable grounds to believe that a person has operated a vehicle or the conveyance with an impairment to any degree under proposed paragraph 320.14(1)(b). Currently, the police officer needs to have the reasonable belief that the vehicle was operated in the last three hours, and of course, the rationale for that is apparent. When you do the tests on the person and when you take the breath samples from the person, you want to do that as close to the time of driving as possible so you can relate the two. With no time requirement here, police officers with reasonable and probable grounds can demand samples from an individual hours or even days after that individual operated a vehicle. It's even more absurd when that provision is combined with proposed subsection 320.31(4), the section that alleviates any burden on the crown to call scientific evidence if the samples are taken outside of two hours to read back.

I'll pause to say that calling of this scientific evidence adds virtually no time to a trial. It can be done through documents. It's often done by calling a witness on video, and defence counsel needs the leave of a court to cross-examine. So this isn't a provision that frustrates justice or impedes the crown in any way, but this new section, which eliminates the need to call a toxicologist and mathematically add up five milligrams of alcohol for every 30 minutes, is a problem, because if an officer demands a breath sample from somebody, say a day after they drove, and that person provides a sample and blows zero because they have no alcohol in their system at all, then through the operation of proposed section 320.31 and the read-back mean that the person is deemed to have blown 240 or deemed to have an alcohol concentration of 240 even though he blew zero a day after driving. It doesn't make any sense. I've had various people look at this, because it can't be right. But that seems to be the reading of it, and that's deeply problematic, and, I would wager—and we'll see if I'm right—unconstitutional.

Now, in the last two and a half minutes, I want to deal with what I think is the most important problem of this bill, and that is the random breath testing. Let's just cut to the chase here. There's nothing random and there will be nothing random with this breath testing. What we know now, from right here in Ottawa and the 2016 Ottawa police traffic data race collection program—arising out of a human rights complaint for racial profiling—in which the police collected race data about everyone they stopped for every traffic violation, is that if you're a visible minority or part of a marginalized group or living in an overpoliced area, you are stopped disproportionately compared to the rest of the population. In simple terms, if you're black, if you're Arab, if you're a visible minority, you get pulled over more often than a white person does. That study went on to find that those people actually were not committing offences at any higher rate than anyone else was; in fact, the rate was lower.

So when you put those things together—and this is what the Ontario Human Rights Commission has done—it means that visible minorities are pulled over by the police more often for no reason. That's what is going to happen here. We've seen it in the enforcement of the current marijuana laws, which disproportionately affect minorities. We've seen it with the carding and street checking programs, which disproportionately affect minorities. This is just legislative carding in a car. That's how it's going to play out.

Now, there has been some constitutional analysis, and I'm sure you'll point me to Professor Hogg's analysis. That analysis, in our opinion, fails to take into account the reality of how this is going to play out. We're talking about people who are already disproportionately stopped, who are taken out of their car, denied right to counsel, and sometimes handcuffed. Their movements are definitely controlled; they are detained, and their car is searched for weapons by the police. They can be questioned and they are searched. If that happens to you or me once in a lifetime, it might be a slight inconvenience. The charter analysis isn't going to look at you and me; it's going to look at the young black man who is stopped five, 10, 20 times. Go and read Desmond Cole's piece in Toronto Life about carding and the effect that has on someone. That's the analysis that will take place, so it's a big problem.

Imagine you are a young black father picking up your kid from school and you're pulled over and subjected to this testing for the fifth or sixth time. That is the analysis that will take place. We know that some of these impaired laws already on the books are saved by section 1. They violate the Constitution and are saved by section 1. When we add how this is going to play out on the ground and look at the realities of how it's going to play out, I wouldn't be as confident as Professor Hogg, as respected as he is, to say that it is going to pass a section 1 analysis.

I'd be pleased to answer any of your questions. Of course, there are more expansive comments in my written brief.

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

It really raises the question, to state the obvious, that in the event someone is charged because they're impaired, and they may be under two nanograms, what Bill C-46 is going to do is it is going to result in a whole lot of people potentially being charged who very well may not be impaired. They just happen to be above two nanograms in terms of what they register in the way of THC, which unlike alcohol, does not necessarily indicate whether or not they are able to safely operate a motor vehicle.

Is that a fair assessment?

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Liepert.

Are there any other short questions? If not, I have one, colleagues, if that's okay.

I have a short question for you, Mr. Wood. I want to understand your testimony a bit better.

You're aware, Mr. Wood, that Mothers Against Drunk Driving has stated that they're very disappointed with your recommendations. They say, first, that your assertion that Bill C-46 may make matters worse for drug-impaired driving victims is unfounded, and second, that your proposed alternative, the tandem per se drug-impaired driving legislation, would pose major enforcement problems and would likely be subject to serious legal challenges under the Canadian Charter of Rights and Freedoms.

You spoke about something concrete, though. You said, and I want to get your words absolutely correct, that it was “very, very rare” that there would be a prosecution if you were under the per se limit. Did I get that right? I believe you stated that in Colorado you had spoken to a number of prosecutors and they said that was very rare.

What I don't understand there is that, as Mr. Nicholson rightly said, proposed subsection 320.14(1), in paragraph (a), says this:

Everyone commits an offence who (a) operates a conveyance while the person's ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;

It's a totally different offence from the ones that have the per se limit. I'm wondering about this. Have you done any study in Canada or do you have any information about people charged in Canada under this section or under the preceding section that related to this in today's Criminal Code when they were charged? Do you have evidence that such a prosecution very rarely succeeds if they actually do a test and they fall under the limit?

[Ed Wood]

Don't adopt the per se limits of Bill C-46. Instead, put in the tandem per se. I think that would fix it.

[Murray Rankin, NDP, Victoria, BC]

Last, what is very interesting is the edibles question. I think you've indicated that if you consume edibles you wouldn't be prosecuted under Bill C-46. What is your solution to that problem?

[Ed Wood, President, DUID Victim Voices]

Thank you very much.

Ladies and gentlemen, marijuana's THC does not impair a driver's blood; neither does alcohol, for that matter. Both of these substances impair a driver's brain, making the person unsafe to drive. We only test blood as a surrogate to try to learn what's in the brain. For alcohol, blood is an excellent surrogate. THC is not like alcohol. It's different biologically, chemically, and metabolically. For THC, blood is a terrible surrogate to learn what is in the brain.

Bill C-46 is based in part on the report from the Canadian Society of Forensic Science issued earlier this year. I largely concur with their findings, but I strongly disagree with their THC per se recommendations. I will confine my remarks to only that topic.

The two-tier structure in Bill C-46 perpetuates the myth that blood levels of THC correlate with levels of impairment, and they don't, as specified in the CSFS report itself. Drivers testing below five nanograms per millilitre of THC can be just as impaired as those testing above five nanograms. I submit that impaired drivers who kill or maim innocent victims and then test below five nanograms do not deserve protection from criminal prosecution.

Alcohol is unique among impairing drugs in that there is documented correlation between blood levels and impairment levels that simply does not exist for any other drug and has been shown to not exist at all for THC.

I point your attention to slide 1, which is before you right now. Much has been made of the fact that THC remains in the body for an extended period of time. It does not, however, remain in the blood very long at all. Since THC is fat-soluble, it is quickly removed from the blood as it is absorbed by the brain and other highly perfused fatty tissues in the body. The charts all demonstrate how rapidly THC is cleared from blood in both chronic and occasional users of marijuana.

Dr. Hartman's work, as shown in the two right-hand charts, showed that the peak level of THC declined an average of 73% within just the first 25 minutes after beginning to smoke a joint.

With a per se law, if you are above the limit, you are guilty of a per se violation, even if you can drive safely. Conversely, and this is something often overlooked, if you are below the limit, you are innocent of a per se violation even if you are seriously impaired. This latter point is the real problem with any THC per se quantitative level.

On slide 2 are frequency distribution histograms from four different forensic laboratories showing that the vast majority of cannabinoid-positive drivers arrested on suspicion of driving under the influence of drugs test below five nanograms. The largest of these studies showed that 70%, in more than 10,000 cases, tested below five nanograms. These drivers would not be criminally prosecuted under a five nanogram per se law.

There are two reasons for this phenomenon. First is the previously noted rapid depletion of THC from the blood. Second is the time required between arrest and taking a blood sample for testing.

This third chart superimposes the decline, shown earlier, of THC in blood on the elapsed time between dispatch of an officer to the scene of a crash and the time of taking a driver's blood in Colorado in 2013. What this chart shows you is that in the theoretical worst case, over one-half of cases of a driver smoking marijuana at the time of a crash, that driver would likely test below five nanograms, and that's for heavy users. For occasional users, the median level is just two nanograms. But wait. It gets worse.

In Colorado now, dollar sales of marijuana edibles exceed those of marijuana bud. Slide 4 shows THC levels found in blood on the left and in oral fluid on the right. Of users who consumed up to five times the standard 10 milligram THC dose of edibles, none of the subjects ever reached a five nanogram level in blood and very few even reached the two nanogram level. Drivers impaired by marijuana edibles would not be prosecuted under Bill C-46.

The relationship between blood alcohol level and impairment has been well established, perhaps most convincingly by the Borkenstein relative risk curve, shown on the left. As you have more alcohol in your blood, the chance of having a crash is increasing. By the way, this is only valid if alcohol is the only impairing substance in a driver's blood.

The largest similar study for THC was done by the European Union's DRUID project, which found no difference in propensity for crash risk based upon THC levels. Of greater utility, perhaps, are studies of physical impairment assessments versus blood THC levels.

Declues et al., in the right-hand chart of slide 5, found no relationship in “walk and turn”, “one leg stand”, or “finger to nose” assessments versus blood THC levels ranging between two and 30 nanograms per millilitre in whole blood.

Dr. Logan's study last year evaluated 15 different impairment assessments, none of which could distinguish between drivers testing above and those testing below five nanograms. Dr. Logan concluded, “A quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported.”

I submit further that to do so and to adopt Bill C-46 threatens to not only destroy credibility in the law but also to ensure that the majority of innocent victims of THC-impaired driving in Canada will not see the drivers who committed crimes upon their person brought to justice, and if that's not a crime, it should be.

We know that relying upon roadside impairment assessments alone is problematic. StatsCan figures bear that out. You have now seen that quantitative per se levels for THC also won't work. A combination called tandem per se, however, might be the answer.

Tandem per se requires a sequence of events to prove a driver guilty of driving under the influence of drug per se. Number one is that the driver was arrested by an officer who had probable cause, based upon the driver's demeanour, behaviour, and observable impairment, to believe that the driver was impaired. Number two is proof that the driver had any amount of an impairing substance in the driver's blood, breath, or oral fluid.

You can do better than what you currently have with Bill C-46. I hope you do.

I look forward to your questions.

[Director Mario Harel, President, Director, Gatineau Police Service, Canadian Association of Chiefs of Police]

Distinguished members of this committee, as president of the Canadian Association of Chiefs of Police, I am pleased to be given the opportunity to meet each of you today. This is my first time as president of the CACP to appear before you, and I am privileged to see so many familiar faces.

You just introduced my colleagues here at the table. I'd like to point out that Chief Superintendent Charles Cox is our chair of the CACP traffic committee, and Superintendent Gord Jones is from the Toronto Police Service. He's our immediate past chair of the same committee. Madam Malashenko is the legal counsel for the Ottawa Police Service and a member of our law amendments committee.

We are here to provide our expertise on this very important issue. The mandate of the CACP is safety and security for all Canadians through innovative police leadership. This mandate is accomplished through the activities and special projects of some 20 committees and through active liaison with various levels of government. Ensuring the safety of our citizens and our communities is central to the mission of our membership, which represents municipal, regional, provincial, and federal police services.

Bill C-46 is a very detailed and technical bill, and as a result, I will address it from a high level on our opening statement. In addition to our appearance here today, we are providing you with a more detailed brief, which outlines our position on the bill.

I would like to make some general comments to provide perspective as to the impact of this bill on policing. Our role from the beginning has been to share our expertise with the government to help mitigate the impact of such legislation on public safety. Extensive discussions within the CACP membership and various committees formed the basis of our advice. We participated in a number of government health consultations and provided a submission to the federal task force. Members of the CACP also were involved in the oral fluid drug screening device pilot project.

We produced two discussion papers entitled “CACP Recommendations of the Task Force on Cannabis Legalization and Regulation” on February 8, 2017 and “Government Introduces Legislation to Legalize Cannabis” on April 28, 2017. Both discussion papers can be found on our website.

The recommendations we are providing here today are not intended to dispute the government's intention of restricting, regulating, and legalizing cannabis use in Canada.

There is no doubt that the primary concern of policing in Canada is impaired driving. This is a significant issue today. It is our belief that it will become an even greater issue with the legalization of cannabis.

In fact, I want to be clear. We certainly commend the government for its commitment to consultation of stakeholders and the public. We commend the efforts of ministers, all parliamentarians, and public servants at Public Safety, Justice, and Health Canada who are dedicated to bringing forward the best legislation possible. All share with us a desire to do this right, knowing that the world is watching.

The government has put forward strong legislation not only focused on impairment by drugs but also addressing ongoing issues related to alcohol impairment.

Steps that have been introduced to reform the entire impaired driving scheme are seen as much needed and very positive. The CACP has called for such changes in the past, specifically in support of modernizing the driving provision of the Criminal Code, supporting mandatory alcohol screening, and eliminating common loophole defences. Tough new impairment driving penalties introduced in this legislation are strongly supported by the CACP.

We also acknowledge funding announced recently to support law enforcement for cannabis and drug-impaired driving. The government has been listening.

The natural question would be why those in policing would have a concern with the July 2018 start date. The problem exists today; what will be different with legalization? What does policing need in order to successfully implement and operationalize legalization?

The question many in policing have is what level of readiness the government, and more importantly, our communities, expect law enforcement to deliver. We can be ready at some level July 2018, but are we delivering on the public safety objectives Canadians would expect of us? We are 10 months away, so allow me to put this into perspective.

We have 65,000 police officers in Canada who require training to understand the new legislation once it is passed into law. Standards for oral fluid drug screening devices are being developed. Devices are yet to be screened against standards approved by the Attorney General of Canada and made available to law enforcement to allow for implementation and training. Provincial governments for the most part are still developing regulatory and delivery schemes, which directly impact law enforcement.

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

Although the RCMP has recently conducted pilots in Canada, DRE accreditation currently involves sending officers to the United States at significant cost and based on availability of courses. We asked the government to come forward with a commitment and details to develop Canadian-based training for our officers, including reducing or eliminating the reliance on the practical training portion that is predominantly only available in the United States. We need to increase forensic laboratory capacity to process bodily fluids and sustain our ability to enforce this legislation.

This represents just a snapshot of what confronts law enforcement as we move forward. We remain hopeful that many of these issues will be clarified and/or resolved over the coming months, laying the groundwork needed to support effective and efficient enforcement of these new laws. What really concerns policing overall is that, quite frankly, Canadians have not been getting the message when it comes to impaired driving, whether that be by alcohol or drugs, and it remains a leading criminal cause of death in Canada.

We recognize and commend the government's tougher legislation in this area. However, current perceptions and attitudes toward drug-impaired driving must change, especially among our youth. Greater education in this area should have started long ago. We need to drive home the message that alcohol and/or drugs and driving don't mix.

We are crossing new territory. Like you, we want to see this comprehensive legislation implemented successfully and recognize that doing it right is more important than doing. We all have a responsibility to mitigate the impact on public safety. That is our foremost goal from a policing perspective.

Again, our written submission flags some of the challenges, considerations, and recommendations that we hope will assist in making this bill even stronger. In all, we support the proposed measures, with some amendments. We continue to stress the importance of public education, and the policing community is eager to advance training incentives so that it can effectively support enforcement and public safety goals.

Sincere thanks are extended, Mr. Chair, to all members of this committee for allowing the Canadian Association of Chiefs of Police the opportunity to comment and make suggestions on Bill C-46. We look forward to answering any of your questions.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone. It is a pleasure to welcome you to the justice and human rights committee's meeting on Bill C-46, which we finally can refer to as an “impaired driving law”.

I am absolutely delighted to welcome our witnesses today.

We welcome Mario Harel, who is president of the Canadian Association of Chiefs of Police, and the director of the police service of the city of Gatineau.

Good afternoon, Mr. Harel.

Also, I welcome Charles Cox, the co-chair of the traffic committee, chief superintendent, highway safety division, Ontario Provincial Police; Gord Jones, superintendent, traffic committee, in Toronto; Lara Malashenko, member of the traffic committee and legal counsel for the Ottawa Police Services; and from DUID Victim Voices, Ed Wood, president.

We're going to start with the Canadian Association of Chiefs of Police.

[Ralph Goodale, Liberal, Regina—Wascana, SK]

I'll just re-emphasize that the campaign has begun. It is focused upon social media to start with, because all the statistics indicate this as by far the most effective mechanism for reaching young people.

The work is ongoing. It will undoubtedly accelerate and be complemented by the work of other organizations, including provincial governments, which in a number of cases have extensive information and educational campaigns in mind with respect both to Bill C-45 and the new regime dealing with cannabis and especially with respect to Bill C-46, which deals with impaired driving. There are some very important private sector organizations, such as MADD or Mothers Against Drunk Driving and the Canadian Automobile Association, that have already been very active in putting important messages, including paid advertising, into the public domain.

[Ralph Goodale, Liberal, Regina—Wascana, SK]

The legislation, particularly Bill C-46, which is the companion piece, will assist in that regard in two ways. First of all, it will introduce new roadside screening equipment that will be more helpful in providing preliminary information about potential drug impairment and then lead to more specific testing at the police station with blood samples. The equipment will help get more accurate information.

Second is greater training. Part of the money that I referred to in my remarks will go toward training more field sobriety-testing officers, who have the skill set necessary to identify situations at the roadside. At the moment, there are, roughly speaking, 3,500 of those officers properly trained across the country at various levels of police forces. Our objective is essentially to double that number over the course of the next 18 months to two years.

We're also aiming to increase substantially, by at least 50%, the number of drug recognition experts. These are people who are pre-qualified as experts in detecting drug-related issues and then testifying to that effect in court. There are now, roughly speaking, 500 of them in the country. We would want to see that number go up to at least 750, distributed across the nation, obviously.

Providing better equipment and providing larger numbers of properly-trained officers, either in the field or at headquarters in the police stations, will certainly enable us to be more precise in future with respect to tracking and quantifying the issue.

[Ralph Goodale, Liberal, Minister of Public Safety and Emergency Preparedness]

Mr. Chair, members of the committee, thank you very much for the invitation. It's a pleasure to appear before you this evening. I'm glad to join my colleagues the Minister of Justice; the Minister of Health; Parliamentary Secretary Blair, who has been front and centre in dealing with this issue over the last many months; and officials from our department.

We're here, obviously, to discuss Bill C-45 and how this legislation will help keep cannabis out of the hands of Canadian children, and profits out of the hands of criminals, certainly more effectively than the failed regime that has existed in this country for many decades.

In developing our approach to the regulation of cannabis, strengthening public safety has always been our primary goal.

I will now talk about our efforts to ensure that law enforcement agencies, including the police and border services, will have the resources and training needed to protect Canadian communities.

First, it is important to be clear that Canada's current approach to cannabis, the one that has existed for decades, has simply not worked. The World Health Organization has studied cannabis use among youth in Europe and North America. In 2009-10, the WHO found that a third of young Canadians had tried cannabis by the age of 15, a higher rate than for any other country in that study. Also, in a 2013-14 study by the WHO, Canada remained in the top five for 15-year-olds and was number one in cannabis use among children 13 years of age or younger.

As well, according to a 2016 statistical compilation by the United Nations Office on Drugs and Crime, the rate of cannabis use among Canadians 15 to 64 was almost 15%, and that was higher for that whole age span than in every country except two others in the world. In other words, Canadians are among the heaviest and the youngest users of cannabis globally.

There is clearly a need to do things differently, and that's why we've proposed this new regime based on the framework set out in Bill C-45 along with enhanced measures to combat impaired driving, which are contained in Bill C-46, and room for provinces and territories to tailor approaches that suit their particular circumstances.

Essential to this new regime is engagement with and support for police and border officers to ensure that they have the tools they need to enforce the law. To this end we recently announced an investment of $274 million that includes $113.5 million over five years for the RCMP and the Canada Border Services Agency as well as for programming within Public Safety Canada, primarily to keep organized crime out of this new legalized system and to combat smuggling. The investment also includes $161 million to train front-line officers to recognize the signs and symptoms of drug-impaired driving, to build law enforcement capacity across the country, to ensure that police have access to drug screening devices, to support research, and to enhance public awareness about the dangers of driving while impaired by drugs.

Over half of the $161 million will be accessible to provinces and territories over the next five years, and my department is already engaged with them to identify the needs and the priorities for the investments, particularly with respect to training and equipment. That collaboration across jurisdictions has been a key part of our preparations for the new legislative framework, and it will remain crucial to the implementation and ongoing evaluation of the system that Bill C-45 will put in place. In that regard, as the Minister of Justice mentioned, she and I spent two days last week with our provincial and territorial counterparts at a meeting in Vancouver, where the discussions around this particular topic were particularly important.

There are three topics that I would like to address. Of the many that will need to be discussed about Bill C-45, these are the three in particular that I'd like to address in a little more detail.

First, on the subject of cannabis at the border. It is, of course, currently illegal to bring cannabis into Canada or to take cannabis out of Canada. Going both ways across the border, it's illegal. Under Bill C-45, that would not change. Border officers already examine people and goods entering the country to prevent the smuggling of contraband, including cannabis. They make use of advanced technology, intelligence gathering, and ongoing training about how to detect and interdict substances that may not be brought across the border. Their efforts will continue, bolstered by some of the new funding that I mentioned earlier.

As for the admissibility into the United States of Canadians who have previously used cannabis, we have engaged our American counterparts to ensure that they understand how our new regime will function and what it will achieve, and we have made clear that we expect travellers heading in both directions to be treated in a fair, professional, and respectful manner.

At the same time, the United States is, of course, entitled to make its own admissibility decisions. I would certainly encourage Canadians to be forthright with border officials and to keep in mind that cannabis remains illegal at the federal level in the United States. In fact, some of the new funding for the CBSA will go toward communications and signage to ensure that travellers are well informed about the state of the law.

The situation in the United States is also complicated by the fact that there are a number of state jurisdictions that either have already legalized cannabis or are planning to do so in the immediate future, so the situation with respect to American law is evolving.

Second, on the subject of organized crime. At present, Canada's non-medical cannabis industry is entirely criminal. The illegal cannabis trade in this country puts $7 billion annually, perhaps more, into the pockets of organized crime. Over half of Canadian organized crime groups are suspected or known to be involved in the cannabis market. Canadian law enforcement spends upwards of $2 billion every year trying to enforce what is currently an ineffective legal regime. With legalization and regulation, we can enable law enforcement resources to be used more effectively, and we can dramatically reduce the involvement of and the flow of money to organized crime.

In Washington state, for example, legalization a short time ago has shrunk the criminal share of the cannabis market by nearly 75%. As with tobacco, we know that the black market is unlikely to be entirely eliminated, but we're talking about taking the criminal market share from non-medical cannabis down from 100%, where it exists today, to much lower levels, and that would be an improvement.

Third, on the subject of impaired driving. Parliament will have an opportunity, obviously, to go into this in much greater detail during the study of Bill C-46, the companion piece to Bill C-45. Bill C-46 is specifically aimed at better addressing the long-standing problem of driving while under the influence of alcohol or drugs. But I know it's an issue that touches many of us very directly, and I certainly feel a deep personal sense of urgency to tackle it head-on, both as Minister of Public Safety and as the member of Parliament for Regina—Wascana.

Of all the provinces, Saskatchewan has Canada's highest impaired driving rate. Among cities, Regina is third in the country, with Saskatoon not far behind. Too many families in Saskatchewan, and in all of our communities, mourn loved ones lost to impaired driving. This is therefore a problem that exists right now, and we would have to address it with or without the new cannabis regime. It's urgent that we do so.

As I have said, we are doing this with the legislation we introduced in the spring as well as with the additional cash investments that I mentioned a few moments ago. I welcome the strong public support and advocacy that we see coming for legislation such as Bill C-46 from such organizations as MADD, Mothers Against Drunk Driving. They have gone so far as to engage in a very public advertising campaign about the importance of this legislation.

To deal with cannabis-impaired driving specifically, our approach focuses on educating the public and facilitating detection and prosecution. In March, for example, Public Safety Canada launched a social media campaign targeting young drivers and their parents in order to raise awareness about the dangers of driving while under the influence of cannabis.

Last winter, seven police services across the country, from Halifax to Vancouver and to Yellowknife, participated in a groundbreaking pilot project to study two different oral fluid drug screening devices in diverse operational settings, including the dead of winter. As you can read in the report that was released in June, police generally found the devices easy to use in various weather, temperature, and lighting conditions. Part of the investment I mentioned earlier will help ensure that police officers in communities across the country have these devices and are properly trained to use them.

Finally on this point, I know this committee has heard concerns about the timeline for implementation, but cannabis-impaired driving is happening on our streets right now. The faster we get the right tools, the funding, the training, and the legislative and regulatory authorities in place, the safer Canadians will be. Legislative delay does not make the problem go away or get better. Delay only stalls more effective action.

Public health and safety have been the key drivers of our approach to cannabis and will remain our overarching preoccupation. For too long Canadians, and especially Canadian youth, have been using cannabis at world record rates to the great profit of criminals and organized crime. That needs to change, and that's why we have this bill before you now.

Thank you, Mr. Chair.

[Benoît Gariépy]

Perhaps I can answer that question.

I do not think the Quebec Bar is here today to examine the constitutionality of the bill. Trial judges and later on the justices of the Supreme Court of Canada will certainly have the opportunity to do that.

The eminent Professor Hogg gave his opinion yesterday. Once again, who am I to contradict what a constitutional expert told this committee? I am not saying that the entire bill is completely unconstitutional, but I think some of its clauses might be considered excessive in their scope.

You will remember Bill C-2 which, once it was passed, became the subject of constitutional challenges for four and a half years. Bill C-46 is Bill C-2 to the power of 22 and will also be the subject of challenges. They will not necessarily come from the Quebec Bar, but I know criminal lawyers who are aware of Bill C-46 and who are already sharpening their tools. If the bill is passed in its current form, there will be constitutional challenges.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

We appreciate that.

Your colleagues may also answer the following question.

The police already have powers, which some people consider intrusive, allowing them to question a driver about their alcohol consumption or stick their head in a driver's car and use a flashlight to see if there is any alcohol inside.

In your opinion, are these powers more or less intrusive than what is proposed in Bill C-46?

[Jody Wilson-Raybould, Liberal, Minister of Justice]

Thank you, Mr. Chair, and my thanks to the members of the committee. It is indeed a pleasure to be here, and I recognize that you came back earlier to have discussions and hear from witnesses on this most important topic that my honourable colleagues, Ministers Goodale and Petitpas Taylor, are pleased to present on Bill C-45, the cannabis act.

While the committee was doing the important work of looking at this bill, Minister Goodale and I were meeting with our provincial and territorial counterparts in Vancouver. Cannabis and drug-impaired driving were significant parts of our agenda, and we feel that the engagement of the provinces and territories is an incredibly important feature in our work to date. There can be no doubt that the legalization and strict regulation of cannabis has sparked much discussion, before and particularly after the introduction of Bill C-45. In my remarks today, before I turn it over to my ministerial colleagues, I want to provide some background on the development of our legislative proposal, highlight the purpose of Bill C-45, and provide an overview of key justice aspects.

There is a broad consensus among Canadians that our current approach to cannabis is not working. Our system of criminal prohibition fosters an environment where organized crime reaps billions of dollars in profits from its sale, where thousands of Canadians each year end up with criminal records for non-violent cannabis offences, and where cannabis is not being kept out of the hands of young people.

Most Canadians no longer believe that simple possession for small amounts of cannabis should be subject to harsh criminal sanctions, which can have lifelong impacts for individuals, and which take up precious resources in our criminal justice system. Our government agrees that there is a better approach, one that is evidence-based and that will protect the health and safety of Canadians, with a focus on protecting our young people.

As a starting point, on June 30, 2016, we appointed a task force on cannabis legalization and regulation with a mandate to advise us on the design of a new regulatory system. I know that the chairperson, the Hon. Anne McLellan, and the task force's vice-chair, Dr. Mark Ware, appeared before you as witnesses last week.

As you heard, the task force conducted extensive consultations across the country, visited the states of Washington and Colorado, which have legalized cannabis for non-medical purposes, and considered nearly 30,000 online submissions sent in by Canadians. It also sought the views of a diverse community of experts, professionals, advocates, front-line workers, youth professionals, indigenous communities and organizations, territorial, provincial, and municipal officials, law enforcement, citizens, and employers.

On December 13, 2016, the task force delivered its final report containing over 80 recommendations for the development of a Canadian legal cannabis framework. It reflects a public health approach aimed at reducing harm and promoting the health and safety of Canadians. The report has been very well received, is comprehensive, and provides important background information on the issues this bill seeks to address. It also proved essential in developing Bill C-45.

The bill paves the way for Canada to become the first G20 country to legalize and strictly regulate cannabis at the national level. It was introduced last spring alongside another important piece of legislation, Bill C-46, which proposes new and stronger laws to more seriously tackle drug and alcohol-impaired driving.

As set out in clause 7 of Bill C-45, our government's intention is to protect public health and safety with a particular emphasis on protecting young people's health by restricting their access to cannabis; preventing advertising and other promotional activities that are likely to encourage cannabis use; providing for lawful production of cannabis to reduce illegal activities; deterring illegal cannabis-related activities through appropriate sanctions and enforcement measures; reducing the cannabis-related burden on the criminal justice system; providing Canadians with access to a quality-controlled supply of cannabis; and enhancing public awareness of health risks associated with cannabis use.

Bill C-45 creates a framework in which adults can access legal cannabis in an appropriate retail context that is sourced from a well-regulated industry, or grown in limited amounts at home. Adults 18 years or older will be permitted to legally possess or share with other adults up to 30 grams of legal dried cannabis, or its equivalent in other forms. Selling, or possessing to do so, will only be lawful if authorized under the act.

Under no circumstances will cannabis be sold or given to a young person. Production of cannabis will also require specific authorization. Possession, production, distribution, import, export, and sale outside this framework will all remain illegal and be subject to criminal penalties. These penalties will be proportionate to the seriousness of the offence, ranging from ticketing up to a maximum penalty of 14 years imprisonment. This graduated approach reflects our legislative objectives.

Bill C-45 will also exempt young persons from criminal prosecution who possess or share up to five grams of cannabis, rather than exposing them to the criminal justice system for what amounts to very small amounts of cannabis. Above five grams, young people will be subject to the Youth Criminal Justice Act, which emphasizes community-based responses, rehabilitation, and reintegration. For less serious offences, alternatives to charging are encouraged, such as taking no further action, warning the young person, or referring them to a community program or agency to help address the circumstances underlying their behaviour.

Under Bill C-45, the federal, provincial, and territorial governments will all share in the responsibility for overseeing the new system. The federal government will oversee the production and manufacturing components of the cannabis framework and will set industry wide rules and standards. Provinces and territories will be responsible for the distribution and sale. They will also be able to create further restrictions as they see fit, including increasing the minimum age to align with their legal drinking age. Further, the provinces and territories, along with municipalities, could create additional rules for growing cannabis at home, such as lowering the number of plants allowed per residence, and restricting where cannabis can be consumed, such as in public places and vehicles.

In addition to our working with them to establish a secure supply chain, provinces and territories will be key partners in our government's efforts to raise public awareness about the risks associated with cannabis use. As set out in budget 2017, our government has provided $9.6 million for public education and awareness, as well as monitoring and surveillance activities. This includes monitoring patterns and perceptions around cannabis use among Canadians, especially youth, through the annual Canadian cannabis survey. This work will inform and refine further public education and awareness activities to mitigate the risks and the harms of use.

I would now like to address some of the concerns that have been raised either during second reading debate, or by witnesses appearing before you last week. I want to assure this committee that in developing the bill we were aware of concerns voiced about the minimum age, youth possession of small amounts of cannabis, personal cultivation, and the impact of our proposed legislation on youth.

Let me start by saying that overall Bill C-45 is informed by and closely aligns with the recommendations of the task force report. In terms of minimum age, our government has accepted the task force's advice that we need to strike a balance between the known risks of cannabis and the reality that Canadian youth and young adults currently use cannabis at some of the highest rates in the world. In striking this balance Bill C-45 restricts the sale of cannabis to adults aged 18 and older. Provinces and territories will be able to set a higher minimum age just as they do with alcohol and tobacco.

In exempting from criminal prosecution young persons who possess or share up to five grams of cannabis, we are aware of the criticism that this sends the wrong message to youth. Our government's position is clear: young persons should not have access to any amounts of cannabis. Under Bill C-45 there will be no legal means for a young person to purchase or acquire cannabis. Criticizing our government's decision not to criminalize youth for possessing or sharing very small amounts of cannabis ignores the evidence. Statistics clearly show high usage rates among youth despite the fact that cannabis is currently a prohibited substance. Our government recognizes that for very small amounts there is a better way to deal with young people than using the full force of the criminal law.

Our government has been engaging with provinces and territories to encourage them to create administrative offences to prohibit youth from possessing any amount of cannabis similar to what is currently done with alcohol and tobacco. This measured approach would provide police with the authority to seize small amounts of cannabis from youth. Ontario has recently announced its intention to do just that. I have been encouraging and urging other provinces and territories to follow suit, most recently just last week at the FPT meeting in Vancouver.

Another issue that was raised during second reading debate was the suggestion that home cultivation could mean greater access to cannabis for children. In response I would note that the task force concluded that small amounts of cannabis for personal use can be safely and responsibly cultivated by adults in a manner that protects young persons in the home. Adults will be required to take appropriate precautions as they must do now when storing prescription drugs, alcohol, and other potentially harmful substances. Additionally the significant penalties proposed in Bill C-45 for selling and distributing to young persons, or for using or involving any young person in the commission of a cannabis offence sends a strong message to any adult who would allow cannabis to get into the hands of children.

In response to the other concerns raised, such as those related to the timing of implementation, challenges surrounding drug impaired driving, and Canada's obligation under international drug treaties I would like to emphasize that these are all issues that we continue to diligently work to address. We are continuing to work collaboratively with the provinces and territories, and as mentioned, Minister Goodale and I met with our counterparts last week.

The Ministers of Health, Finance, and Agriculture have also met to discuss the issue. In addition, federal officials will have maintained ongoing engagement with their counterparts.

Mr. Chairman, I will respect my time frame and I very much look forward to questions. I will turn it over to my colleague Minister Petitpas Taylor.

[Dr. Douglas Beirness]

Mr. Chairman and committee members, thank you for the opportunity to address you today.

My name is Doug Beirness. I am a senior research associate and subject matter expert on impaired driving with the Canadian Centre on Substance Use and Addiction, known as CCSA. CCSA was created by Parliament as a non-governmental agency to provide national leadership and evidence-informed analysis and advice to address substance use in Canada. I am also a member of the Canadian Society of Forensic Science's drugs and driving committee, the DDC. The DDC will make a presentation to this committee separately next week.

Today I speak to you from my position with CCSA and my many years of experience in research in the area of impaired driving. Rather than concentrate on statistics, just let me say that over the 35 years I have been doing research in this field, I have witnessed tremendous reductions in the number of Canadians killed each year in motor vehicle crashes involving an impaired driver. Still, a third of traffic fatalities in this country involve alcohol. In addition, as we have developed the tools and the means to investigate appropriately, a great deal has been learned about the dangers associated with the use of drugs by drivers. Today drug use rivals alcohol as a major contributor to serious crashes in this country.

In the time I have today, I would like to address several issues that are mentioned in Bill C-46. I'll start with mandatory alcohol screening.

Forty years ago, Parliament gave police the power to stop vehicles to check drivers for alcohol use. However, the power to demand a breath test was contingent upon the officer having a reasonable suspicion that the driver had consumed alcohol.

Although the threshold for suspicion is not high, it's been demonstrated that police officers vary considerably in their ability to detect alcohol and assign the symptoms of alcohol use. I don't say this to discredit the work of our police officers. I raise it to illustrate the fact that the detection of alcohol can be difficult, especially in a brief checkpoint at the side of the road. If a driver escapes detection, it serves to reinforce the behaviour and increases the likelihood of its reoccurence.

As you heard earlier today, the Australians pioneered the concept of random breath testing, or RBT, as part of a large-scale effort to reduce drinking and driving that included a very intense year-round program of police checkpoints, during which virtually every driver was tested for alcohol. The goal was, and remains, to test every driver in a state at least once a year.

The strategy worked. When used in this fashion, mandatory breath testing increases the rate of detection of impaired drivers and serves to increase the perceived and the actual probability of apprehension, both of which are key factors in general deterrence.

In the past, any suggestion of random or mandatory breath testing was quickly dismissed as a violation of our rights. Perhaps it's time to reconsider that position. Think for a minute of what we go through to simply board an airplane. By comparison, providing a simple breath test at the side of the road is a small sacrifice to help ensure the safety of all road users. The need is great, the benefits are substantial, and the sacrifice is really minimal. The evidence strongly supports providing police officers the opportunity to test drivers for the presence of alcohol at any time, regardless of suspicion.

Oral fluid drug screening is the next topic I'd like to address. Approved alcohol-screening devices, that is, portable Breathalyzers, have been widely used throughout Canada since the 1970s to provide a quick and valid assessment of drivers who have been drinking. Over the past few years, there have been increasing calls for a similar device that could be used at the roadside to quickly and reliably assess drug use by drivers.

Such a device simply does not exist. Oral fluid screening provides a partial solution. A small sample of oral fluid can be collected and screened in a matter of minutes to provide an indication of whether a driver has ingested a potentially impairing substance. The Canadian Society of Forensic Science's drugs and driving committee tested three such devices, and determined that they were able to detect cannabis, cocaine, and methamphetamine with a high degree of accuracy.

Oral fluid screening devices have the potential to be a valuable tool for officers engaged in drug-driving enforcement, but they're not the solution to the problem.

Although oral fluid screening can reliably detect three of the most common substances used by drivers, there are many other substances that are not detected, for example, opioids and benzodiazepines. More important, the devices only provide an indication of drug presence, not a drug concentration nor an indication of impairment.

As is currently the situation for alcohol, the officer would need to have a reasonable suspicion of drug use before requiring a driver to submit to oral fluid drug screening. Establishing suspicion of drug use can be significantly more challenging than it is to detect the presence of alcohol. It requires that officers be trained to recognize the signs and symptoms of various types of drug use.

The current training course for the standardized field sobriety test should be expanded to include training in the common signs and symptoms of drug use as well as the use of oral fluid screening devices. These training programs need to be developed and implemented as soon as possible to help ensure that our police are prepared for the legalization of cannabis.

The implementation of oral fluid screening devices will not eliminate the need for the drug evaluation and classification, or DEC, program. In fact, providing officers with oral fluid screening devices and enhanced skills in the recognition of signs and symptoms of drug use may actually enhance the need for the DEC program.

An important point I would like to convey is that a strong DEC program is an essential component in the enforcement of drug-impaired driving laws. More officers will be needed to ensure that all suspected drug-impaired drivers can be evaluated within a reasonable time following arrest.

Bill C-46 also reaffirms the recent Supreme Court decision on the admissibility of evidence provided by a DRE on impairment by type of drug without the necessity of qualifying the officer as an expert. This strengthens the value of the DEC program and reinforces the requirement to maintain the stringent standards established for the program by the International Association of Chiefs of Police.

We believe the DEC program is an important element in the enforcement of drug-impaired driving laws in Canada. It requires strong national leadership to ensure the fidelity of the program, to coordinate and facilitate training with provincial and municipal police agencies, to share information, to monitor progress, and to ensure that there's ongoing education and training.

In essence, per se limits such as 80 milligrams per decilitre for alcohol are a legal shortcut. In theory, they negate the necessity to prove the driver was impaired. Showing that the driver had an alcohol or drug concentration in excess of the prescribed limit is usually sufficient. Such laws rely on the scientific evidence demonstrating the relationship between the concentration of alcohol or drugs in the blood and the extent of impairment and/or risk of crash involvement.

The value of alcohol per se laws, however, goes beyond the apparent advantages to adjudication. Per se laws have been shown to have a general deterrent effect as well, reducing the likelihood that people will operate a vehicle after consuming too much alcohol. There's no reason to believe that a general deterrent effect would not be evident with drug per se laws as well.

Unfortunately, the research on which to base per se laws for drugs is not as definitive as it is for alcohol. Drug effects can be quite variable. Studies assessing the risk of crash involvement also reveal variable results.

Our current focus is on cannabis. Cannabis is also the substance about which it is most difficult to make definitive statements on the relationship between concentration, impairment, and crash risk.

Whereas breath testing has become the standard for assessing the concentration of alcohol in drivers, blood samples are required to measure the concentration of drugs. Because the concentration of some drugs, particularly cannabis, decreases rapidly, it's essential that blood samples be drawn as close as possible to the time of the offence.

Currently, blood draws require the oversight of a licensed physician in a hospital emergency department, where collecting blood samples from suspected impaired drivers may be given low priority, resulting in substantial delays. Allowing blood samples to be taken by licensed technicians provides the opportunity for police to obtain samples in a timely manner. We support the inclusion of qualified technicians among those who will be able to draw blood for analysis.

Regarding alcohol ignition interlocks, 10 years ago, in a report for Transport Canada and the Canadian Council of Motor Transport Administrators, it was recommended that impaired driving offenders be given the opportunity to participate in an interlock program at the earliest opportunity, in particular, immediately upon conviction. The recommendation was based on evidence that convicted offenders often continued to drive while prohibited, and often under the influence of alcohol. The earliest possible entry into an interlock program would allow offenders the opportunity to drive legally with insurance while providing the public with the assurance that these individuals will be unable to drive after consuming alcohol.

To sum up, over the years we've learned a great deal about the issue of driving while impaired by alcohol. Still we continue to deal with this complex problem. The legalization of cannabis poses additional challenges. Although many of the lessons learned about dealing with drinking and driving can inform our approach to drugs and driving, we must recognize and take account of the fact that the issues involved in drugs and driving differ in many ways from those involving alcohol.

We'll need new strategies and tactics. The public, for one, needs to be informed of the dangers. The police will need new training and tools. While the measures included in Bill C-46 will assist in tackling the problem, they're not a solution but the beginning of a solution. In this context, we'll need to collect the appropriate data to monitor and evaluate the various elements of the legislation to enable evidence-informed decisions regarding the impact on the system for dealing with impaired driving, and ultimately, on road safety. These data would greatly enhance the value of the database and would allow investigations of the role of cannabis and other drugs in all deaths, provided we have the toxicology data available to us.

In closing, we would like to reinforce the statement in the legislation that recognizes that driving is a privilege, not a right, and as such, it's subject to rules, regulations, obligations, and responsibilities. The public expects a safe and effective roadway system, free from the risks imposed by drivers who use impairing substances. Bill C-46 takes the next steps to meet this expectation.

Thank you.