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.

[Benoît Gariépy]

The second theme pertains to the modified offence of driving while impaired to any degree, the new mandatory screening power for police, and the new power allowing the police to take samples of bodily substances on the basis of suspicion alone.

According to the Quebec Bar, the modified offence of driving while impaired to any degree is for all practical purposes a disguised zero-tolerance regime. The notion of impairment to any degree is tantamount to saying that, unless the person is sober while driving a motor vehicle, they can easily be accused of driving while impaired. If the person has consumed even a single glass of wine or one beer, a police officer can stop them and lay charges if they have observed what they deem to be less than perfect driving. This criterion is therefore much too broad and, in our opinion, is clearly excessive as regards the stated objectives of public safety and deterrence. It leaves too much room for subjective opinion of what constitutes impaired ability to drive a motor vehicle.

In this regard, I would like to mention two points made by the Court of Appeal of Quebec. First, the court noted, roughly translated, that:

[...] poor judgment on the part of an automobile driver does not necessarily indicate alcohol impaired driving [...]

The court goes on to state, roughly translated, that:

The criminal offence is not driving while impaired—impairment which can be caused by fatigue, stress, a physical or mental disability, etc.—but rather driving while impaired by the consumption of drugs or alcohol.

Through its criminal law committee, the Quebec Bar, which as you may recall is made up of lawyers as well as crown prosecutors, has expressed concern that such a broad and subjective criterion could lead to a criminal record for an individual, with all the attendant negative life consequences.

Still with regard to clause 320.14 of the bill, the Quebec Bar has reservations about this amendment owing to the period of time during which a person may be accused of this offence. The bar notes further that driving while impaired by drugs or alcohol can be evaluated up to two hours after the person has driven. Once again, we question how proportional this new criterion is as regards the presumption of innocence, in particular, since subclause 320.14(5) significantly reverses the burden of proof.

Moreover, in addition to this new zero-tolerance regime, there are provisions for screening and sampling that are just as worrisome for the rights of accused persons. The bill gives police mandatory screening powers in exercising their power to intercept a vehicle. Clearly, the police officer has full discretion to ask any driver to submit to a breath test.

The Quebec Bar is once again very concerned by the extent of the discretionary power afforded police officers under this new regime. Of course, we take it for granted that police officers receive and will receive the necessary training to manage this formidable discretionary power, but the fact remains that there are still risks of profiling, be it racial or demographic, based for instance on the lifestyle or consumption habits of a certain part of the population.

To properly express our concern, we refer to the Supreme Court of Canada decision in Bain, 1992, which says the following.

Unfortunately it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively. The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control.

If this undertaking applies to the crown, in our opinion it applies equally if not more so to police officers in the field.

Finally, in addition to this power, police officers will also be able to require a blood sample if they have reasonable grounds to believe that the person is driving while impaired to any degree owing to the effects of a drug, therefore even if the driver is nearly sober.

Once again, we are worried about the possible consequences of the exercise of such powers, but also about the consequences of how law enforcement views this amendment. Clearly, driving that deviates to the slightest degree from what the police officer deems to be normal driving could be considered an offence and open the door to the exercise of major and very intrusive sampling powers on the part of the police, as well as, ultimately, charges being laid against persons for conduct that is incompatible with the perception of a criminal offence.

Thank you once again for this opportunity to share our thoughts on Bill C-46. We hope they will be useful to you in your considerations.

We are of course available to take your questions.

[Pascal Lévesque]

Our analysis of Bill C-46 focused on part 2. We identified two themes. I will deal with the first theme and Mr. Gariépy will deal with the second theme.

My theme deals with the reliability and precision of results from the approved screening devices, and with issues related to admissible evidence and defence.

First of all, we understand the lawmakers' intent in clarifying the status of the law in the light of the Supreme Court of Canada's decision in St-Onge Lamoureux. Nevertheless, the implementation of that intent is problematic: it could have the effect of unreasonably limiting the defence on the reliability of the results of the devices and, ultimately, on the right to be presumed innocent.

The bill establishes the premise that, when certain conditions are met, the results of the test of the samples conclusively demonstrate the person's alcohol level at the moment the test was taken. The bill requires prosecutors to disclose only information related to those conditions. For other information, the accused have to apply to the court and demonstrate the likely relevance of the information they wish to obtain.

This mechanism concerns us. First, it reveals a fragmented reading of the Supreme Court's teachings in St-Onge Lamoureux. Of course, information about the maintenance and the operation of the devices at the moment of the tests is relevant and must be disclosed, but there is also information on the maintenance and use of the same devices in the past, which can also raise reasonable doubt as to the reliability of their results.

By placing the burden of demonstrating to a judge the likely relevance of other information on the shoulders of the accused, we risk requiring expert testimony in order to have the evidence communicated, which is a fundamental right to justice recognized in the charter. As the law currently stands, judges have previously required expert testimony to obtain that communication. The bill runs the risk of worsening that trend. The risk is that the result will be two tiers of criminal justice: the accused who can pay for expert testimony, and everyone else. Basically, the results would be so difficult to challenge that there would be a danger of ending up, in practical terms, with a presumption that is impossible to refute.

I will now let Mr. Gariépy talk to you about the second theme.

[Ana Victoria Aguerre, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec]

Thank you, Mr. Chair.

Mr. Chair, vice-chairs, and members of the committee, good afternoon.

The Quebec Bar thanks you for inviting us today to share our views with you on Bill C-46.

My name is Ana Victoria Aguerre. I am a lawyer and secretary to the Quebec Bar's criminal law committee. Today, I am accompanied by Pascal Lévesque, the president of the criminal law committee, and by Benoît Gariépy, a member of the criminal law committee, but also a lawyer who specializes in impaired-driving cases.

As you know, Bill C-46 introduces a series of major amendments to the Criminal Code, specifically by proposing a new impaired driving offence, new powers for the police in order to test for it, and new rules for the administration and admissibility of evidence in such cases.

At the outset, we must stress that the Quebec Bar supports the lawmakers' intent that led to the introduction of Bill C-46. Impaired driving is a major issue of public safety that clearly must be addressed. Nevertheless, the solutions that Bill C-46 proposes in this respect seem to us to be problematic in their implementation and, in our view, go far beyond what is reasonable in terms of the basic rights of the accused.

Given the amount of time we have been allowed for our presentation, we will move directly to the crux of the matter.

The Quebec Bar is opposed to a number of the proposed amendments in the bill and is concerned that some of those amendments will be challenged in the courts. We are concerned about the potential impact of these amendments, the majority of which seem disproportionate against the background of deterrence and awareness that the bill seeks. The concerns are specifically about the fundamental rights that everyone enjoys to be presumed innocent and to make full answer and defence.

I will now step aside to allow Mr. Lévesque to continue.

[The Chair, Liberal, Anthony Housefather]

We will reconvene this session of the Standing Committee on Justice and Human Rights with our third panel of the day on Bill C-46. We welcome today Mr. Douglas Beirness, who is the senior policy adviser, subject matter expert on impaired driving from the Canadian Centre on Substance Use and Addiction.

Welcome, Mr. Beirness.

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

Thank you, Mr. Chair.

Mr. Braid, in your testimony, you cited general statistics about the impact of mandatory breath testing in deterring impaired driving. You cited, in particular, the Australian experience and particularly cited statistics from Victoria. I'm a little skeptical about the Australian example inasmuch as it was one of the first jurisdictions where mandatory breath testing was imposed. It was one of the first measures that was taken to crack down on impaired driving and, yes, it did have an impact in reducing impaired driving.

Mr. Treasure referred to a 1984 Operation Red Nose and other checkstop campaigns that occurred in this country that also saw, following the establishment of those sorts of checkstops and breath testing, a real reduction in impaired driving. Yesterday, Mr. De Luca from the Canadian Civil Liberties Association—and it's not often I agree with the position of the Canadian Civil Liberties Association—made a very valid point, which was to say the question is not whether mandatory breath testing has an impact in reducing impaired driving, because statistics show that it does, but the question really is does it reduce or have a benefit compared to the existing system, which is selective breath testing.

When you look at Victoria, not only are you looking at the fact that it was introduced a long time ago, but also in Victoria, I understand they have booze buses and other measures wherein the police are out on the roads every single day, with seven or eight of these vehicles, and literally millions of people are stopped and go through these checks. That, again, is very different from anything that is likely to occur in Canada if Bill C-46 becomes law with mandatory breath testing.

I'd be interested in your comments.

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

Yesterday we heard the powerful testimony from Markita Kaulias. She, like you, is a mother who lost a child to an impaired driver, and like you, she came before our committee to implore this committee to amend Bill C-46 to include at least a minimum mandatory of five years for impaired causing death. Another recommendation that she brought forward was to change the term for that offence from “impaired causing death” to “vehicular homicide”.

I see my friend Mr. Sikand is here, and Mr. Sikand introduced a private member's bill that's a little more complicated than that, but it included amending the Criminal Code to change the definition to “vehicular homicide”. Is that something that you would like to see in the amendments to this bill?

[Scott Treasure]

Thank you, Peter.

Before I start, I want to thank Sheri for sharing her difficult and moving story in relation to the topics we're discussing tonight. It puts my own trepidation about coming before you guys into the proper light, considering the challenges that she goes through every day.

I'm here today representing IBAC as president-elect. I've been an insurance broker and active in my professional association in Alberta for many years. Our members see first-hand what our clients go through as a result of impaired driving. That's why emphasizing road safety and driver responsibility is an important part of the work we do.

Brokers in Alberta and across the country participate in a number of initiatives against impaired driving of any kind. For example, many brokers support and volunteer with Operation Red Nose during the holiday season, ensuring that drivers have access to a safe and sober ride home. Since its creation in 1984, Operation Red Nose has become the most important road safety campaign against impaired driving in Canada.

In Ontario, brokers sponsor the Ontario Association of Chiefs of Police drive safe campaign, aimed at increasing public awareness on impaired and distracted driving. In addition to the devastating injuries, loss of life, and serious criminal penalties, there are also significant financial and insurance-related consequences, which provide additional deterrents.

While auto insurance coverage varies from province to province, if you are illegally operating a vehicle, as is the case with impaired driving, all policies limit the liability to the statutory minimums and accident benefits. All other coverages are denied. You will also be subject to drastically higher insurance premiums, and in the case of repeat offences, you may find it hard to even get insurance coverage at all.

When coverage is denied, it is important to have supporting evidence. Alcohol-impaired driving is relatively easy to quantify through a Breathalyzer test. Drug impairment is more subjective. It is not clear that there is an accurate and reliable test currently available, and until the science evolves and precedents are set, there could be a period of uncertainty in the insurance world.

I only call a couple of examples into play here. Obviously, you're aware of other jurisdictions that have legalized and have gone slightly different ways when it comes to the blood concentration level of THC. Within those, I believe the fear is that there could be significant court challenges with that blood concentration level. Oregon, I believe, is not using the blood concentration level at all. I think Colorado is looking to more roadside safety.

The other pieces are statistical uncertainties and stressing the importance of accurate data collection in those jurisdictions where it has been legalized. On the idea of of marijuana-related deaths or marijuana-related accidents, in my industry the more important piece would be who's at fault in those accidents. That's an important piece that we need to keep in mind.

In the meantime, education is critically important, and I encourage the government to put as many resources into this as possible. I know that brokers will continue to actively contribute to increasing public awareness of the dangers of both alcohol-impaired and drug-impaired driving. Like everyone else, we want to get impaired drivers off the road and, better yet, prevent them from driving in the first place. We believe the proposals contained in Bill C-46 will contribute to that outcome.

Ultimately, whatever the legislation is, our industry and the thousands of brokers across Canada are equipped to help Canadians with these changes.

Thank you for your time. We would be happy to answer any questions you may have.

[Peter Braid]

Thank you very much, Mr. Chair.

Good afternoon, honourable members. I'm very pleased to be here today on behalf of the Insurance Brokers Association of Canada, or IBAC, to contribute to our public discussion on Bill C-46. As a former member of the House of Commons, I must say it's a pleasure to be here although somewhat strange being on this side of the table. Let me also take the opportunity to thank each of you for your public service.

IBAC is the national voice of property and casualty insurance brokers and a strong advocate for insurance consumers. Through our 11 member associations, we represent over 36,000 brokers who are small-business owners and community builders in virtually every city and town across the country. IBAC also has the important role of advocating on public policy issues that affect insurance brokers and consumers, and it is through this lens that we appear before you today.

I would like to state at the outset that IBAC strongly supports the objectives of this bill: reducing impaired driving and improving road safety. Every day insurance brokers deal with the aftermath of traffic accidents caused by impaired driving and they can attest to the physical, emotional, and financial devastation that result from such incidents. Ms. Arsenault has just shared her own very personal and powerful story.

We are optimistic that the measures contained in Bill C-46 will make a difference in road safety. Bill C-46, as you know, proposes mandatory alcohol screening, which has proven to be very effective in several jurisdictions, for example, Australia, which brought in random breath testing over 30 years ago. The results speak for themselves. In the state of Victoria alone, the proportion of impaired driver fatalities has dropped dramatically from 49% in 1977 to 15% in 2014.

We are also in favour of measures to close loopholes, which allow some impaired drivers to avoid penalties, and in favour of the enforcement of stiffer penalties to act as deterrents. The legalization of marijuana of course raises a number of concerns with respect to drug-impaired driving. Many in society expect that marijuana use may become more prevalent and socially acceptable, so there could potentially be a corresponding increase in drug-impaired driving.

There are still many questions surrounding the impact of drug-impaired driving on the insurance industry. Specifically we look forward to seeing further research and testing of reliable detection tools to support the enforcement of this legislation. As the policy picture becomes clearer, the insurance industry will make the necessary adjustments.

Again, we support the initiatives that will reduce the number of deaths and injuries caused by impaired drivers and believe that the following considerations will be of utmost importance: one, increased penalties and the removal of defence loopholes; two, further research into roadside tests for drug impairments; and, three, public awareness campaigns. We are confident that with stronger laws and regulations in place, real progress can be made.

Thank you for your time and your attention. It is now my pleasure to pass the presentation to Mr. Scott Treasure, the president-elect of IBAC.

[Sheri Arsenault]

I'd like to begin with a video. They always say a picture is worth a thousand words.

[Video presentation]

I'd like to thank you for inviting me to speak to you on what to me is one of the most important decisions a government can make. I speak to you today not as a legal expert or an organization with vast resources, but as an ordinary citizen, a real victim, and a mother.

Thank you very much for watching that video. That video means a lot to me. It goes with my presentation. It's not only my heartbreaking story, but it's also the story meant to represent what four families go through every single day here in Canada.

On November 26, 2011, my young son Brad and his two good friends were violently killed by a drunk driver. Their fender mowed through my son's car from behind at well over 200 kilometres an hour in a 70 kilometres per hour zone. He drove through Bradley's little car. There was nothing left of my son. He had to be identified by his dental records.

The impaired driver was charged with three counts of impaired driving causing death, three counts of driving over .08, and three counts of manslaughter, for a total of nine charges. He was found guilty, convicted on all nine charges, and sentenced in August 2014 to an eight-year prison term.

Attaching manslaughter to this crime is extremely rare. My son's case was only the 13th time in Canada. The offender was eligible for parole on October 28, 2016. He became eligible for full parole in April 2017, which is only a fraction of his eight-year sentence.

The Canadian public has seen that sentences are already extremely low for impaired driving crimes causing death, and I strongly believe that we are deceiving Canadians with such a reduction of sentences. An eight-year sentence equates to 2.2. That's a mere fraction, considering the severity of the crime that resulted in the horrific death of three innocent young men. Most Canadians don't know that. They believe what they read in the newspapers or see on TV. Eight years, he went to jail for eight years. That's not how it's supposed to work.

It's very difficult for me to write or speak about my son Bradley. Every parent's worst nightmare is that knock on the door by that stranger in the uniform with his hat off.

I assume that you read my “new normal” in my written presentation. I am the mother of a murdered child and there is nothing normal about my life now. It's bad enough to lose your child through absolutely no fault of their own, but to lose your young son so horrifically is something beyond words.

The pain for my loss was in itself very difficult, and it took almost three years and 31 court-related appearances to get from the date of this tragedy to the date of sentencing. I knew that I could never bring my young son back, but I thought I could possibly do something positive that would prevent other mothers from going through a similar tragedy.

I hope everybody is able to read my written brief. My written brief is very thorough in explaining my strong arguments regarding mandatory minimums and deterrence. My focus is on impaired drivers who cause death.

As I see it, our existing situation is four to five deaths a day. We all know those stats. We all know almost 200 injured every day. I try to think why. I think those who know they shouldn't be driving imagine they will get home. The fact is, they most often do get home, and this only reinforces that behaviour.

The chances of getting caught are very low, and if they do get caught, the punishment is very lenient. That's why people who drive impaired think the risk is worth taking.

The probability of being charged if you are a driver who caused death is only 22%, and out of the 22% of people who get charged with impaired driving causing death, only 11% are convicted. I fell into that 11%. I'm considered lucky. I don't feel that lucky. I'll be honest with you. But 78% who cause death are never even charged. They walk free because of loopholes. The case is thrown out of court in the first five minutes. Sentences, on average, are between two and three years.

It seems our justice system perceives these tragedies as just that, an unfortunate tragedy or an accident. When you compare that with other crimes that cause death, it just doesn't make any sense to me. You would be hard pressed to find a Canadian who thinks that our sentences for drunk drivers who cause death are anywhere close to where they should be.

To me, it's very simple. The time does not fit the crime. Somewhere, somehow, accountability should play a part for such a serious crime, loss of life, and not only for the victims but for the general public.

I'll turn to Bill C-46 and what I see as deficient in this bill. What I find and what is most noteworthy to me is Bill C-46 contains most of the contents of former Bill C-73 and former Bill C-226 by filling in some of the loopholes, but it has completely removed the stiffer penalties for impaired drivers who cause death. It also reduces the punishments considerably for the first, second, third, and subsequent offences from what was proposed in these former bills. A $1,000 fine is considered a credit card fine in this day and age, and that's where this bill remains.

In Alberta, if you take one more fish than you're allowed or if you go fishing without a licence, the mandatory minimum is a $1,000 fine. It's the same for impaired drivers.

Essentially, this is the same legislation as our existing legislation from 2008, Bill C-13 regarding impaired drivers who cause death. Shouldn't the first instance be harsh enough so there is no second and third and fourth and until possibly a death occurs?

Bill C-46 does add a small increase depending on your blood alcohol, a raise of $500, and they did add in mandatory breath testing. On random breath testing, I recognize that there is a 20% reduction in deaths quoted by MADD and Dr. Solomon regarding other countries, but this is over a very long period of time, 10 to 20 years. I would suggest that there is more to it than just the component of random breath testing. To me, there are many sides to this coin and over all those years there have to be many other variables included that have factored in.

I would like to know what the sentences are for drunk drivers who cause death in these countries. I believe other variables over such a long period of time such as cultural change really factor in too. With the legalization of marijuana, is this government prepared to give our police forces the resources they need? How will it affect the civil liberties? How will it affect our already overflowing courtrooms? These are the questions that I wonder about.

I will tell you random breath testing would not have helped in many cases that I know. It would play no part to me in hard-core drinkers. The offender who killed my son and his two friends admitted in his parole hearing he drove drunk over 300 times in a five-year period. He drove once or twice a week. When he killed my son and his two friends, he was considered a first-time offender. First time caught is what I call that, and most hard-core ones are like him.

We can't expect random breath testing to be the only answer. We can't assume our police will catch everyone. In 2012, only 5% of impaired drivers who were caught tested at .08, but 64% of those tested at double or more, and those are the ones who kill. There is no certainty or severity in this bill to recognize loss of life or to deter others.

Overall, Bill C-46 is considered to be very deficient in changing the behaviours of hard-core, habitual impaired drivers. It would not significantly reduce deaths, at least not until there's a cultural change, and that could take decades. This bill does not recognize causing one or multiple deaths as a serious crime.

Because I know my time is almost up, I'll speak briefly on mandatory minimum sentences.

Five-year mandatory minimum sentences would greatly strengthen the deterrence goals in sentencing. It would provide a level playing field for judges, prosecutors, and defence lawyers, while still leaving a wide area of discretion between minimum and maximum for consideration, such as mitigating and aggravating factors, rehab, etc. A five-year mandatory minimum sentence would not be considered too severe or cruel, considering parole and statutory release dates. Sentences for impaired driving causing death would be commensurate with other serious offences, so it would not be viewed as an accident or an unfortunate tragedy.

On deterrence, the five-year mandatory minimum sentence for impaired drivers causing death is needed, because I believe it would provide a strong general deterrent example to the public that saving the lives of our loved ones is significant, and both the certainty and the severity of the punishment are effective in deterring crime. Deterrence is critical.

Finally, we all know that impaired driving is the number one cause of criminal deaths in Canada: four a day. A car is a deadly weapon. Safety is a non-partisan issue and protecting Canadians should be our government's priority.

On June 16, 2015, the day that Bill C-73 was introduced, the former justice minister, the Honourable Peter MacKay, sat me down in a private office here in Ottawa, looked me in the eye, assured me he did not anticipate much opposition to this legislation, no matter who formed government in the fall, and said, “It's a good bill, Sheri.”

I was very optimistic when the new government was formed in 2015. I wrote to all 184 Liberal MPs in January 2016 by email and I hand-delivered a letter. I even blogged my optimism on my website. I have this letter and my blog to hand out. I received six replies. Truthfully, that alone was heartbreaking.

To me, it's inconceivable that impaired driving causing death is not taken more seriously when it comes to punishment. I ask that you review Bill C-46 with an open mind and with a particular reflection on the impacts: the deaths, the injuries, the victim impacts, the costs on our society, and the respecting of Canadians' clear demands for harsher penalties. I strongly recommend that the committee support an amendment for the reinstatement of the mandatory minimum sentence for impaired drivers who cause death, as was provided in Bill C-73 and Bill C-226. We are all just sitting ducks, every one of us here, including our children and our friends. We are candidates for the next horrific death at the hands of an impaired driver. This is 2017, and it's a choice. In fact, it's wilful.

Sadly, I feel like a nobody. Every day I wake up with the realization my son is gone and it seems that victims don't matter. We have no accountability, no justice, and no deterrence.

I'll close with the hope that special attention be paid to the words of the late Arnold Chan, MP for Scarborough—Agincourt, who stated that all MPs should forget their ideologies and work together to get things done for Canadians.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

All right, we will be resuming this meeting of the Standing Committee on Justice and Human Rights with our second panel of witnesses today on Bill C-46.

It is a pleasure to welcome Ms. Sheri Arsenault, director, Alberta, Families for Justice.

Welcome back, Ms. Arsenault.

[Wayne Stetski, NDP, Kootenay—Columbia, BC]

Thank you.

Thank you for being here today.

My riding of Kootenay—Columbia is located in southeastern British Columbia, and my constituents are very interested in and concerned about both Bill C-45, trying to ensure that economic opportunities continue for small business, and Bill C-46, in terms of keeping us all safe.

I would start with a question for Mr. Therrien. In the material prepared by the committee, you are specifically mentioned as having raised concerns regarding random breath testing, provisions from Bill C-226, particularly concerning racial bias in the application of this law.

What sorts of conditions could you recommend to the committee to prevent arbitrariness and racial profiling in random breath testing?

[Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada]

Thank you very much, Mr. Chair.

Thank you for the invitation to appear before you today on Bill C-46. I'm accompanied by Madam Kosseim. As you may be aware, we appeared before the public safety and national security committee, SECU, on a similar private member's bill, C-226, a year ago. I would stress from the outset that our office fully understands the severity, societal impact, and clear dangers of impaired driving. For governments and law enforcement, combatting impaired driving is clearly a compelling state objective, given the tragic impact on Canadians each year.

In our testimony before SECU last September on the other bill, we acknowledged the pressing nature of the state objective but also posed three questions related to the necessity and proportionality of the new provisions. Those questions included consideration of how invasive this new power could be, how necessary it is to move away from the suspicion standard, and whether there is any concrete evidence as to how effective the proposed changes might be.

In the interim, since our last testimony and the introduction of this bill, the government published a charter statement and a legislative backgrounder, which attempt to deal with these questions. While we might disagree on some particulars, for instance on the reasonable expectation of privacy of individuals subjected to new mandatory roadside testing, on the whole we find these explanations satisfactory.

For instance, these materials provide information on the limitations of the current system in Canada and the effectiveness of models outside Canada in reducing deaths due to impaired driving. On the whole, we think that the government's answers to our questions on necessity and proportionality, if not perfect, are in most ways adequate.

All that said, however, there are some other substantive privacy issues we would like to raise, including the broadening of purposes for which test results and analyses of bodily samples can be shared and how this sensitive data would be handled.

Clause 15 of the bill, which would add subsection 320.36(2) to the Criminal Code, permits the sharing of the results of any evaluation, physical coordination test or analysis of a bodily substance for the purpose of the administration or enforcement of a federal or provincial act.

Currently, the use and disclosure of this type of information is restricted to specific Criminal Code, Aeronautics Act or Railway Safety Act offences, or to the administration or enforcement of provincial law.

As a consequence, the bill would widen the potential uses and purposes for which such results may be put by authorities.

While road safety is clearly a compelling state objective, we do not see how the numerous other administrative objectives would justify the sharing of test results.

In your study, we recommend that the committee examine which specific laws are contemplated here and consider restricting sharing to the enforcement of statutes with sufficiently compelling state objectives that justify sharing sensitive information originally obtained without grounds.

If you are not convinced, you could limit sharing under the system in the subsection in question only to federal or provincial laws dealing with transportation security.

We would also ask whether testing results are retained on individuals who are not found to be in violation of the regulatory limits.

Unrestricted retention of negative test results or false positives would represent a privacy risk if clear ground rules around their required destruction are not set in advance.

Thank you for the invitation. I look forward to answering your questions.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone, and welcome to the Standing Committee on Justice and Human Rights and our deliberations on Bill C-46. We are delighted today to have some very distinguished witnesses appearing before us. First I want to welcome Mr. Stetski; I think this is his first time at the justice committee.

[Professor Robert Mann, Senior Scientist, Institute for Mental Health Policy Research, Centre for Addiction and Mental Health]

Thank you very much.

My name is Robert Mann. I'm the senior scientist from the Centre for Addiction and Mental Health in Toronto, or CAMH, as we call it. I'm a member of the epidemiology faculty at the University of Toronto.

In Bill C-46 the Government of Canada is proposing to revise Canada's impaired driving laws. The provisions being considered in Bill C-46 are supported by research and how impaired driving can be prevented. The bill addresses impaired driving in two general areas: driving under the influence of cannabis and other drugs, and driving under the influence of alcohol.

With regard to driving under the influence of cannabis and other drugs, we note that the Government of Canada has stated its intention to legalize cannabis use. This change in the legal status of the drug is consistent with the recommendation of the Centre for Addiction and Mental Health to legalize cannabis use to achieve the public health goals of controlling cannabis use and preventing cannabis-related harms. The success of the public health approach can be seen in the reduction in rates of tobacco use and in driving after drinking that have been observed in recent decades in contrast to evidence that cannabis use has changed little or may be increasing among some groups in the population.

However, regardless of the legal status of the drug, it is recognized that one of the major health problems associated with cannabis use is an increase in the risk of collisions and resulting casualties among those who drive under the influence of cannabis, or DUIC as I'll phrase it, and among their passengers and other road users as well.

Much research has been devoted to the impact of cannabis and traffic safety in recent decades. Laboratory studies indicate that cannabis affects basic physiological and psychological processes involved in the driving task and epidemiologic studies now show that DUIC increases the risk of collision involvement significantly. Currently, rates of DUIC in the general population are relatively low, but are much higher among some subgroups. For example, rates of DUIC among adolescent and young drivers now equal or exceed the rates of driving after drinking in these groups. Recent studies have estimated that between 75 and 95 deaths on Canadian roads in 2012 were caused by DUIC, that DUIC caused about 4,500 collision-related injuries, and that between 7,800 and 25,000 Canadians were involved in collisions caused by DUIC that year. Adolescents and young adults are most affected by these deaths, injuries, and collisions since they are most likely to drive after using cannabis.

Preventing collisions and casualties that result from DUIC is a very important goal and should receive more attention regardless of the legal status of cannabis. Combinations of legal measures with educational and remedial measures have been implemented in various jurisdictions across the world, but currently, because these measures are relatively recent, we know little about their impact in preventing DUIC. However, we can look to the impact of measures to prevent driving after drinking to inform our efforts to prevent DUIC-related collisions. Similar combinations of legal, educational, and remedial measures have been introduced around the world and the success of these measures in reducing alcohol-related collisions is considered one of the leading public health successes of the past century. The key to this success has been the introduction of per se laws, which make it an offence to drive if the level of alcohol in the blood exceeds the level specified in law. These legal limits have been shown to reduce rates of driving after drinking and resulting casualties in the population.

CAMH scientists estimated that Canada's per se law, introduced in 1969 and setting the legal limit for alcohol in Canada at .08% at that time, prevented over 3,000 deaths in Ontario alone between 1970 and 2006. This experience suggests that introduction of a per se or legal limit law, along with enabling the use of roadside oral fluid screeners to facilitate identification of drivers under the influence, should be central to our efforts to prevent DUIC-related collisions. Other jurisdictions have successfully implemented a similar approach and their experience can guide us here.

Although there is now much interest in the topic of driving under the influence of cannabis, it must be remembered that alcohol still accounts for a larger number of deaths and injuries than cannabis; thus, efforts to prevent these deaths and injuries are still essential.

One measure that would significantly reduce alcohol-related casualties on our highways is mandatory alcohol screening or MAS. MAS originated in Australia and Europe in the 1970s. All states in Australia have implemented MAS, as have many states in Europe and many other parts of the world. The key to MAS is allowing the police to request a breath sample without probable cause. This permits the processing of large numbers of drivers at the roadside as a way to increase general deterrence. This causes an increase in the average driver's perception of being caught if he or she drives while impaired, which is believed to be the mechanism for the beneficial effects of MAS on collision rates.

Evaluations of MAS have supported its effectiveness in reducing alcohol-related collisions and fatalities. Reviews have found reductions in alcohol-related fatalities across studies ranging from about 8% to about 71%, and an average reduction of 30.6% in accidents with injuries associated with introducing MAS has been reported. Because of these positive results, MAS has been supported by many health organizations. In a WHO-sponsored study of measures to prevent alcohol-related harms, MAS was one of the measures given its strongest support.

A second measure that would significantly reduce alcohol-related deaths and injuries on our roads would be the introduction of a legal limit of .05% in the Criminal Code of Canada. There is clear and strong scientific support for a legal limit of .05%. Above this level, it is clear that safe driving skills are impaired and collision risks are substantially increased. Reduction of the legal limit to .05% in other jurisdictions has provided substantial evidence of beneficial effects.

The potential impact on fatalities on our roads would be substantial. In 1998 CAMH scientists estimated, based on effects seen in Australia and Europe, that introducing a .05% legal limit in Canada could prevent between 185 and 555 deaths on our roads per year. Rigorous scientific research that has appeared since that time has supported and strengthened that conclusion.

In conclusion, driving under the influence of cannabis, alcohol, and other drugs is a significant public health problem. There is strong evidence that the deaths and injuries that result from this behaviour can be substantially reduced by effective public policies. The Centre for Addiction and Mental Health strongly supports the Government of Canada in its efforts to implement these policies and notes that the initiatives considered in Bill C-46 are consistent with the best scientific evidence for preventing the casualties that result from impaired driving. As the Government of Canada reforms the country's impaired driving laws, CAMH would be pleased to help in any way we can.

Thank you for having me with you. It's been an honour.

[Dr. Jeff Brubacher, Medical Doctor, Department of Emergency Medicine, Faculty of Medicine, University of British Columbia, As an Individual]

Thank you for the opportunity to speak.

I'm an associate professor at the University of British Columbia, with a research focus on impaired driving. I'm also an emergency physician at Vancouver General Hospital, which is one of Canada's largest trauma centres. I've worked at Vancouver General for over 20 years, so I've had a lot of experience seeing people with road trauma, and too much experience seeing people involved in crashes, injured in crashes involving impaired driving.

I'm happy to say that the rate of impaired driving, alcohol-impaired driving at least, has decreased over the years, certainly since I started practising, but it's still much higher than it should be. We're doing some research here in British Columbia studying drivers who visit the hospital after a crash and measuring drug and alcohol levels. We're finding, and this is recent data covering 2015, 2016, 2017, that about 18% of these injured drivers who come to the hospital after a crash, test positive for alcohol, and 15% are above the legal limit of .08%, so it's much higher than what it should be.

We're also looking at THC, the active ingredient in cannabis. We're finding that a number of drivers are using THC. About 7% of the drivers that we're seeing test positive for THC. About 4% of the drivers we're seeing have THC above two nanograms per millilitre. Just for perspective, other drugs are often seen. About 10% test positive for recreational drugs such as cocaine or amphetamines, and around 20% have used an impairing medication. So impaired driving is still a problem in 2017. With that background, I think Bill C-46 has a lot of good material in it that I think will help decrease the rate of impaired driving.

First, I want to say that I agree with random breath testing. I think it's a powerful measure. I think it will decrease impaired driving, prevent crashes and injuries. There are two observations from my research that support this. The first observation is that police do not always recognize drivers who are impaired by alcohol.

When we compared the results of our toxicology testing with police reports to see whether police suspected that the driver had used alcohol, we found that for drivers with a blood alcohol concentration between .08%, the legal limit, and .16%, twice the legal limit, in those drivers police suspected alcohol 58% of the time. Put the other way, they missed it 42% of the time. For drivers with higher alcohol levels, above .16%, so more than twice the legal limit—and these are drivers who's risk of crashing is 30 times higher than when sober; so a high risk of crashing in drivers who are going to be impaired—police suspected alcohol 80% of the time. The police were doing better, but they still missed 20% of the time. Random breath testing would get around that. Police won't have to suspect alcohol to test them, and I think they'll detect some of those drivers that they're currently missing.

The second observation, and this is from older research that we did some time ago, we found that many impaired drivers, even when they come to the police's attention, go unpunished. This is from the same basic method. We're looking at drivers who come to hospital after a crash and have alcohol levels tested, and we're looking at their alcohol results and seeing what their subsequent driver record shows. Were they convicted of impaired driving? What we found there is that for drivers with a blood alcohol level between .08 and .16, only 4.7%—so less than one in 20—were convicted of impaired driving. For drivers with a blood alcohol over .16, twice the legal limit, only 13.6%—so about one in seven—were convicted of impaired driving.

We don't know why these drivers are not being convicted, but I suspect that part of that problem is police having difficulty gathering the evidence they need. Again, I think that random breath testing would help them gather that evidence.

This is bad. It's bad because laws against impaired driving work by creating the perception in the public that if you drink and drive, if you're impaired and drive, you're going to be caught and you're going to be punished. That's what deterrence is about. When drunk drivers or impaired drivers come in contact with police and are not recognized as being drunk, are not charged with drunk driving, or get off on a technicality, that undermines the deterrent effect of those laws. I think random breath testing is a good way to get around that.

That's my first point: I agree with random breath testing.

My second point is that I agree with using roadside screening devices to measure drugs in saliva to help police identify drivers who use drugs.

In this same research, we looked at police reports and compared them with toxicology testing for THC, the active ingredient in cannabis. We found that for drivers with THC in the range of two nanograms to five nanograms per millilitre—that's not just positive but substantial levels—police suspected drugs in only 8.5%, or about one in 12 drivers.

It didn't get any better when the THC levels went up. We had 16 drivers where the THC was above five nanograms per millilitre. Police suspected drugs in only one of those drivers—6%—and I don't mean to say anything bad about police. It's difficult to detect moderate cannabis impairment. Police have a very difficult time detecting drivers who are impaired by cannabis. I think they need help to do that, and I think roadside oral fluid screening devices would be a valuable tool for police to help them detect these drivers.

The third point I wanted to make is that I believe in per se levels. I think per se levels for THC are the way to go. I think the levels chosen—two nanograms per millilitre and five nanograms per millilitre—are reasonable options. The best evidence shows that drivers who use cannabis have an increased crash risk. The exact THC levels where that risk starts to go up hasn't been as well defined as it has for alcohol, but two nanograms per millilitre and five nanograms per millilitre are certainly in line with the evidence we have.

The reason we need per se limits is that it's very difficult for police to prove that a driver is impaired. As for the current system of drug recognition experts, I'm not an expert on this, but I know enough about it to say that it has its role. It gives a systematic way for police to gather evidence, but it's difficult. It's a resource-intensive and time-consuming system, and it's not widely available. If you have a crash in a rural area, a drug recognition expert might not be able to get there. Also, it's most likely open to legal challenges.

Per se limits would be a far more streamlined and more efficient way of gathering evidence. Going back to the 1960s when per se limits were introduced for alcohol, there were dramatic decreases in alcohol-impaired driving. My hope would be that setting per se limits for THC would have the same effect for driving impaired by cannabis.

Those are the points I wanted to make. I'm happy to answer questions later. Thank you for listening.