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.

[Tom Stamatakis, President, Canadian Police Association]

Honourable members, I appreciate the opportunity to appear before you this evening as you continue your study of Bill C-46.

I note that there are some familiar faces around the table, but for those of you who may not be aware, I'm appearing before you tonight as the president of the Canadian Police Association, an organization that represents more than 60,000 front-line civilian and sworn police professionals serving across Canada.

As I have testified before, I also note that I'm a police officer in the city of Vancouver. I am, however, seconded from the Vancouver Police Department to the Vancouver Police Union as its president. I'm also the president of the British Columbia Police Association, an association of all the municipal police unions in the province of British Columbia.

My opening remarks will be brief. I want to begin to saying that the Canadian Police Association supports Bill C-46, which represents one of the most significant modernizations of our country's impaired driving laws that I can remember.

I know that all members around the table share our goal of getting impaired drivers, whether they are impaired by alcohol or drugs, off our streets. While we may at times differ when it comes to specific tactics, I believe the provisions of this legislation, if enacted, will have a significant and positive impact on our efforts.

I'm sure most of you are aware that impaired driving imposes one of the most significant demands on the resources of almost every Canadian police service. While there's no question we've had success through education in reducing the number of impaired driving incidents, there aren't many officers you could talk to in this country who don't have at least one heartbreaking story about responding to a motor vehicle accident where alcohol or drugs were a factor.

I'm confident in saying that the changes proposed by Bill C-46, specifically those that allow for mandatory roadside testing, will help our officers more effectively reduce the number of those stories, although I do understand that some concerns have been raised regarding civil liberties, our fundamental rights, and the potential for infringement under this regime. I want to say that, in this regard, police officers across the country are already asked and trained to exercise a tremendous amount of discretion every day in the execution of their duties, and that will continue.

While opponents of this mandatory screening have painted a picture where officers will regularly be randomly stopping motorists and demanding breath samples, I can say from a practical standpoint that this is simply impossible to imagine. The familiar holiday checkpoints will remain, but what these new provisions will allow us to do is eliminate many of the inefficiencies that plague impaired driving prosecutions.

As I'm sure this committee is aware, studies, particularly those done by researchers at Simon Fraser University, have shown that under the current regime, a single impaired driving case can take a police officer off the road for up to eight hours. The legislation you're considering today will have a meaningful and positive impact in that regard, particularly by eliminating many of the common defences now used to beat the charges. Most notable are arguments regarding reasonable suspicion and whether or not an officer had grounds to pursue breath testing in the first place.

I should also note very briefly that steps taken in this legislation to eliminate the bolus drinking and intervening drinking defences are very much appreciated by our members. Additional clarity within legislation is always preferable, and while some people will never fully be deterred from drinking and driving, I'm hopeful that explicitly restricting these two common defences that officers hear every day will help in the long run.

As I mentioned, I want to keep my opening remarks brief, as I believe I can help you best by answering any questions you might have about the current state of impaired driving enforcement or how these new changes might impact front-line police personnel in this country.

Again, thank you for the opportunity to appear before you this evening. I look forward to continuing this discussion.

[Murray Rankin, NDP, Victoria, BC]

I believe you gave a thorough legal opinion about seven years ago on this very issue. It was an excellent piece of work. At the time, it seemed to me—to build on the point I've been trying to make—that you were referring in that opinion only to random stops such as at a checkpoint. Of course, Bill C-46 is wider than that. It isn't narrowed to what I understand is the Irish experience but is more like the Australian experience, as I've heard it described. As you say, it may be that if everyone is stopped, there's no way that anyone could be accused of profiling in that context, because everyone gets stopped. There are many people who've expressed serious concern that this will be used in a random way to target certain minorities.

Considering your opinion written seven years ago, have you done a specific legal opinion assessing this bill, given that it's much broader than when you simply looked at checkpoints?

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

And it's in your estimation that, as written in Bill C-46, the mandatory testing would pass constitutionally under section 1 because we're trying to stop the 1,000 deaths a year that Ms. Kaulius was talking about, and we're trying to prevent the 60,000 injuries a year, and that's better done front-loaded than through the court system later, when the injuries and the deaths have already happened.

[Jeff Walker, Chief Strategy Officer, National Office, Canadian Automobile Association]

Thank you very much. Good afternoon. My name is Jeff Walker. I'm the chief strategy officer at CAA.

Let me begin by thanking the members of the standing committee for inviting the CAA to join you today to provide our views on Bill C-46. Our focus of discussion is going to be on the drug-impaired driving aspects of Bill C-46.

The CAA was founded in 1913 as a consumer advocacy organization. We have 6.2 million members in Canada today, and since our inception, we've been advocating for critical pieces of the traffic and road safety network that are currently in place today—everything from stop signs, which were put in place in the early 1900s, to seatbelts and airbags. You name it, and we've been involved all the way along, and we continue to be committed to this aspect of safety in Canada. We represent, roughly, one in four adult drivers in Canada, and we're recognized as one of the most trusted brands in the country.

Although drugs and driving has long been a public policy issue in road safety, only recently has this issue become a major concern to Canadians in light of the government's plan to legalize cannabis. In some of our polling across the country, seven in 10 Canadians have told us that they are concerned about their safety on the roads with the coming legalization of marijuana. Public education about the danger of driving under the influence of cannabis is, and will continue to be, a significant area of focus for us and many other stakeholders in the years to come.

The Canadian Centre on Substance Use and Addiction has reported that, in stark contrast to alcohol-impaired driving, the number of drug-impaired incidents has been rising since 2009. As alluded to by Markita, if you look at Washington and Colorado, it's the same pattern. There is no reason to assume this trend will reverse. What we need to do is minimize it.

CAA is pleased to see that with Bill C-46 the government is committed to creating new and stronger laws to deter Canadians from driving while under the influence of drugs.

The introduction of roadside oral fluid screeners and ensuring that drug evaluating officers providing testimony do not need to be qualified through an expert witness hearing are positive steps forward. These new tools will help police to better detect drug-impaired drivers and ensure that they will face the justice system.

The legislation also creates three new offences for having specified levels of drug in the blood and sets these levels for cannabis. Based on the available scientific evidence, we think that these levels are reasonable for now, but we believe that one of the major things that needs to be done is more investment in scientific research around this question. There are major gaps in the science right now.

As with drinking and driving, driving under the influence of cannabis affects not just those individuals who partake but potentially all road users. Alarmingly, while few Canadians would argue that they are better drivers after drinking alcohol, a significant number of Canadian young people actually believe that driving after smoking marijuana makes them safer and more focused drivers. This is real. I've been there. I've watched the focus groups. It's a problem. For this reason, CAA was pleased to see the McLellan task force report confirm that work must be done urgently to address these misconceptions. Several issues have to be tackled immediately: public education, better funding for law enforcement, more research on science and technology to detect impairment, and the impairing effects of cannabis.

Bill C-46 deals with the law on cannabis quite thoroughly, but it leaves unanswered some key questions such as funding for law enforcement, research, and public awareness. The legislation is a positive step, but it's only the first step. Last week, the federal government announced new funding amounting to $161 million to support Bill C-46. That funding is to be used for law enforcement, bolstering research, and raising public awareness. We're very happy that this announcement was made, but I want to flag something. Half of that money is going to be spread over five years, and if you break it out across the 13 jurisdictions in the country, you're talking about $11.5 million for each of them. That's not a ton of money. Maybe that helps with the science, but if we're talking about public education, there's still a way to go.

We know from our experience with alcohol and other driving campaigns that public education plays a significant role in reducing the amount of impaired driving. A major public education effort is going to be required to make Canadians, particularly young Canadians, understand that driving under the influence of cannabis is likely to impair their ability to control their vehicle.

As I alluded to earlier, our recent polling says that 20% of Canadians age 18 to 34 believe they are the same or better behind the wheel after consuming cannabis. This is not the only misconception about the impairing effects of cannabis. We and other non-profit groups in this country have been left to carry the burden of creating and executing public education campaigns on our own. We're going to continue to do our part, but we want help.

Additionally, the government will need to continue to support the law enforcement community to ensure it has the resources necessary to develop the tools, detection devices, and access to training that it will require into the future.

In conclusion, the CAA, without reservation, supports measures that make Canada's roads safer, and we believe that Bill C-46 is a good step in the right direction. However, to combat drug-impaired driving, three key elements—meaningful legislation, public awareness, and effective enforcement and measurement—all need to be taken care of. If we get all three right, we're going to be in a good place. We need to do it, and we need to do it right.

Provinces, law enforcement, and stakeholders will do their part and the tax revenues that people talk about as coming from this may eventually provide the kind of funding that we need, so it becomes a self-funding thing to be able to take care of these things, but in the near term we need a real down payment to be able to get this right from the beginning.

We cannot wait for legislation to begin this important work that we all have in front of us. It's important and needs to come soon. Again, to your point from earlier, we have a lot of people already consuming cannabis and driving today and there's nothing, so getting this done soon is really important.

Thank you very much.

[Markita Kaulius]

I will. Sorry. I just want to get this one part in here.

With the legalization of marijuana, research has shown that impaired driving stats rose. In Washington state they rose from 8% in 2013 to 17% in 2014. In Colorado they tripled. From 2005 to 2014 they went from 3.4% to 12.1%.

I'll be very brief here, sorry. While we support the random breath testing and the lowering of breath alcohol concentration to .05, we hope that the federal government will make additional amendments to Bill C-46. We know that some people may not agree with changes to the laws, but these changes are being proposed in the interest of public safety to save all Canadians. The public have accepted changes in laws regarding no smoking in restaurants and public places, the mandatory wearing of seatbelts, and we go through tighter security at airports and border crossings because we know it will keep the public safe. We get it and we just do it.

Bill C-46 is an extremely important bill. As the justice and human rights committee, you have an opportunity to make one of the most important decisions in the future laws in Canada. Public safety should be a prime consideration as every citizen deserves the right to their life and safety in their community.

Thank you.

[Markita Kaulius, President, Families For Justice]

Thank you.

Dear MP Housefather and honourable members of the Standing Committee on Justice and Human Rights, thank you for allowing me to be here today to speak with all of you.

My name is Markita Kaulius. I am the founder and president of Families For Justice. I am here today representing thousands of Canadian families that have had our children and loved ones killed by impaired drivers in Canada.

On May 3, 2011, my 22-year-old daughter Kassandra went to the university to write a final exam towards her teaching degree. Later that day, she went out to coach a girls' softball team, and pitched a softball game herself that night. Kassandra left the park and was driving home when she was stopped at a red light. The red light turned green, and she proceeded into the intersection to make a left-hand turn. An impaired driver came speeding down the curb lane and accelerated through the intersection on a red light that had been red for 12 seconds. The driver got airborne over railroad tracks and slammed into my daughter's driver-side door, striking her at 103 kilometres an hour. Kassandra's car was sent up and over a median about 1,200 feet down the road, and debris was sent across four lanes of traffic. The driver got out of her car and went up to look at my daughter dying, then fled the scene of the collision. Kassandra never came home. She was killed in a catastrophic accident. I'm sorry, it was not an accident; it was a collision. She died from multiple injuries she received from being crushed to death at 103 kilometres an hour.

During that same year, 1,074 other innocent Canadians were killed, and over 62,000 people were injured in Canada by impaired drivers. Even with all the education and awareness campaigns we have had over the past 35 years, impaired driving is still the number one criminal cause of death in Canada.

Each year statistics show impaired driving causes the deaths of thousands of innocent people across this country. Statistics show on average between 1,200 to 1,500 people per year are killed by an impaired driver—that equates to about four to six people a day—and 190 a day are injured by impaired drivers in Canada.

Numerous lives are tragically cut short by impaired drivers who make the decision to be reckless in their actions. They make the wilful choice to put others at risk on our roadways and highways by driving while being impaired by either drugs or alcohol. Somewhere today in other communities, there is the next victim of impaired driving.

A speeding vehicle in the hands of an impaired driver becomes a 2,000 pound weapon. It is as much a lethal weapon in causing death as a loaded gun or a knife. The only difference is that the weapon of choice is different and the victims are at random on our roadways and highways, and it causes more severe injuries. It happens in every city and town across Canada. The deaths are all vehicular homicides, and the devastation to families is life changing.

Families For Justice has been lobbying the federal government in the form of several bills over the past six years. We supported Bill C-247 and Bill C-226, which were both voted down by the federal government, and over the past six years while we've been waiting for the past and present governments to make changes to laws in Canada, over 6,000 more innocent lives have been lost to impaired drivers in Canada.

In 2011, fatalities involving a drinking driver accounted for 33.6% of total deaths on Canada's roadways. The statistics reflect the growing rate of drug presence in drivers involved in fatal crashes as well. In fact, drugs are now more present than alcohol in drivers involved in fatal crashes.

An estimated 30% of impaired driving offences are by repeat offenders. These offenders are more likely to drink and drive frequently, often at higher breath alcohol concentration levels, and they have a history of prior convictions. Some have alcohol dependency issues.

Those with chronic dependency issues are often employed and driving through our neighbourhoods, through school and bus zones, in the morning rush hours with high blood alcohol levels from the previous night's drinking or drugging. They are also relatively resistant to changing their behaviour, as evidenced by their continued offending behaviour, even after they have faced penalties. Even though these offenders represent a relatively small proportion of the driving population, they account for nearly two-thirds, or 65%, of all alcohol-related driving fatalities and they were responsible for making 84% of all drinking and driving trips. In other words, they drink and drive more frequently than any other type of impaired driver.

We owe it to the lives lost and to the families to rededicate ourselves to the task of finding the most effective measures to finally put an end to impaired driving on our roads. Canadians are counting on the Government of Canada to not give in to the temptation to simply talk tough in the wake of these tragedies. We are counting on you to stop the next crash, the next injury, and the next death, and focus on effective deterrents. It is time now that we measured the progress of making real changes to Canada's impaired driving laws, not in the years that you have just had a discussion about it. This legislation will save lives and hold people accountable for their actions in committing crimes.

The impaired driving act was designed to address inconsistencies in the Criminal Code, harmonize and increase penalties for repeat offenders, simplify the burden of proof for establishing blood alcohol concentration, and speed up impaired driving related court cases. The legislation should contain important measures that are essential to combatting impaired driving, but there are still items that need to be addressed in this bill.

While we support many of the proposed changes in Bill C-46, we strongly feel there are two urgent changes that need to be considered and have not been addressed. Drivers of all ages still risk the chance and drive after consuming alcohol or taking drugs, and only very strict deterrents would impact the crucial thoughts of a driver before they drink or do drugs. Tougher laws must be implemented to enforce deterrence.

Families for Justice submitted over 117,000 names of Canadians on petitions asking the federal government to change the Criminal Code of Canada and the offence of impaired driving causing death. We ask that this offence be redefined as vehicular homicide as a result of impairment. We also do not see any mandatory minimum sentencing for anyone convicted of impaired driving causing a death, which was also requested on our petition from the Canadian public. We feel both these changes in the laws are very strong deterrents to add to Bill C-46. The driver has broken two driving laws: one, by driving impaired, and two, by causing the fatality of an innocent person.

We have the support of the B.C. chiefs of police, the Edmonton police, the RCMP, the Alberta Federation of Police, the Canadian Association of Chiefs of Police and there isn't a first responder, a paramedic, a police officer, a fireman, or a citizen who doesn't hope that one day the number of tragic impaired driving collisions will stop.

Changing the Criminal Code of Canada would finally call this crime what it rightfully is, vehicular homicide as a result of impairment. Minimum mandatory sentencing would finally hold people accountable for their actions in committing crimes against society, and in causing the deaths of innocent people. With additional changes we propose in Bill C-46, it would become one of the most important pieces of legislation for public safety that would become law and affect Canadians now and for future generations.

For 16 years, the law has set 10 years' imprisonment for causing bodily harm and life imprisonment as the maximum punishment for impaired driving causing death. In Bill C-46, the maximum penalty for dangerous driving causing bodily harm would increase from 10 years to 14 years. For impaired driving causing death, the sentence has not changed. It says in the Criminal Code of Canada that a person is liable on conviction of the indictment to imprisonment for life for causing a death, but sadly, no judges ever give this sentence for causing death in impaired driving cases.

The average sentence for impaired driving causing death is two to four years. The actual amount of time served in a two-year to four-year sentence is six months to 12 months. That's it. You can raise the sentence on a piece of paper in the Criminal Code but the reality is the lengths of sentences are never given out by judges in Canada in impaired driving cases where death or multiple deaths have occurred. No one in Canada has ever received a life sentence in prison for causing the death of multiple family members.

The courts need to acknowledge that the deaths that arise from impaired driving are homicides. They are vehicular homicides. People are being killed by the reckless action of others who make the choice to put others at risk by driving while being impaired. There is no excuse in this day and age for anyone to drive impaired as every one of those deaths was 100% preventable.

Over the years, judges continue to give out low sentences and fines in impaired driving cases. Therefore, those cases become precedents for future sentences. A prosecutor recently told a friend of mine who is a police officer that only about 3% of cases actually ever make it to trial. After plea deals are done and charges are dropped, he said only about 3% actually make it to trial.

We have seen such sentences as a $100 fine, a $1,500 fine, seven weekends in jail, and these sentences were given out to a driver for his third offence for impaired driving. This time he killed two women. Basically he got a $750 fine per death and served three weeks in jail for killing. One of these women left six children orphaned. The pain and the suffering of that family will last a lifetime.

Another couple, Brad and Krista Howe, were killed in Red Deer, Alberta. They left five children orphaned as well. The impaired driver who killed them was given a two-year sentence and was released after serving only seven months in jail. He served three and a half months per death. We've seen sentences of $2,000 fines, 90 days to be served on weekends only, four months in jail. That driver is appealing his four-month conviction.

Entire families have been killed by impaired drivers: Catherine McKay killed Jordan Van de Vorst, his wife, his son Miguire, age two, and daughter Kamryn, age five, in Saskatoon, Saskatchewan. The driver was convicted in 2016. It was her third impaired driving charge. She was sentenced to 10 years, and spent one month in jail. She was then sent to a healing lodge. Even the elders at the healing lodge shared with the deceased family that they didn't feel that was appropriate, that this woman should have spent some time in jail. She will come up for parole in February 2018 after serving 18 months out of a 10-year sentence. She will have served four and a half months per death.

Mr. Marco Muzzo killed three children in Vaughan, Ontario, Daniel, age nine, Harrison, age five, and Milly, age two, as well as their grandfather, and seriously injured the grandmother and aunt. In one fell swoop, he decimated an entire generation of the Neville-Lake family, its legacy and its future. Mr. Muzzo will come up for a parole hearing 18 months into his nine-year sentence. He will have served four and a half months per death. Jennifer and Edward Lake received a lifetime sentence of being without all three of their children.

Over the past several years an average sentence handed down for impaired driving has been two to four years. The average sentence actually served in jail is about six to 10 months.

We continually hear from the public that our justice system is broken and failing. Presently, victims feel that a human life is of no value in our criminal justice system and the victims are hardly considered. After attending many court cases over the last six and a half years, it appears in a court of law that often the investigations themselves are on trial and not the accused. The public feel there is a revolving door at the courthouses across Canada and that the courts are not holding people accountable for breaking the law and are depriving Canadians of their fundamental right to safety.

Parents have told us the message coming from our courts to Canadians is loud and clear and it is unmistakable: criminals have more rights than their victims. Even when writing a victim impact statement, victims have strict guidelines on what they are allowed to say and are limited on the number of pages they can write, while the accused is allowed all of the character references they can submit to court. The accused is allowed to see the victim impact statement before the victim even is allowed to read their victim impact statement. People keep asking us why the sentencing laws are so lax in Canada. We wish we could answer that question. Maybe someone here today could answer that for us. Why are the sentences so low in Canada?

We need stronger deterrents and tougher sentencing laws in Canada. We believe that mandatory minimum sentencing is not for every crime. However, Canadians do believe that when an unnatural death has been caused to an innocent person, the accused should be held accountable for causing a death and receive an appropriate sentence based on the severity of the crime. The sentences that are being handed down by our criminal justice system are inappropriate and need to be changed, and just changing them on paper and not having them ever enforced will not make a difference.

Most people who currently break the laws do so because they know there are very little consequences that will happen to them in our criminal justice system. If a mandatory sentence of five years was handed down, the accused would only serve about 10 to 12 months, which is still a low sentence for killing someone but is better than the six months or the $1,500 or $100 fine that is being given out now. The victim's family receives a lifetime sentence of being without their child or loved one and the victims receive a death sentence. Those who are not killed but who are injured may live a lifetime with extensive injuries or disabilities to deal with.

The convicted person is serving the least amount of sentence after committing the crime of killing or injuring a person. In Canada, impaired drivers will continue, and magnify, with the upcoming changes to marijuana laws. This crime will only grow if there are no mandatory minimum sentences handed down for impaired driving causing death. Considering the upcoming lessened restrictions on marijuana, not to mention the current crisis of opiate overdoses, which also happen in vehicles, the public is fearful of more impaired driving fatalities. Changing the Criminal Code of Canada would cover future deaths caused by both alcohol and drug impairment.

[Roberto De Luca]

Thank you very much for the opportunity to appear before you today. I'm Rob De Luca. I am a lawyer and a program director with the Canadian Civil Liberties Association.

I would like to begin by emphasizing that we support the goal of this bill. The government clearly has a strong role to play in combatting the persistent social problem of impaired driving. However, we submit that this bill, in its current form, is not the answer. In our written brief, which unfortunately wasn't here in time for the official translation, we specifically address four areas of concern: mandatory alcohol screening, the increase in mandatory minimum fines, the increase in maximum allowable penalties, and the new statutory presumptions in the drug-impaired context.

This afternoon I will focus my submissions on the provision authorizing mandatory alcohol screening, otherwise known as random breath testing. As we detail in our written materials, we have significant concerns about the likely impact and the constitutionality of this expansion of police stop-and-search powers. Currently, police officers in Canada are authorized to stop a vehicle to check vehicle fitness, licence, registration, and sobriety. A sobriety check must be limited to observing an individual's behaviour, speech, and breath. What is impermissible, and we believe unconstitutional, is a random roving stop for the purpose of a roadside breath demand.

The Supreme Court of Canada has held that a breath demand engages individual charter rights. Among other things, a breath demand constitutes a search and seizure that engages an individual's reasonable expectation of privacy. For this reason, police may currently demand a roadside breath sample only if they have reasonable grounds to suspect that a driver has alcohol in his or her body. This framework is frequently referred to as selective breath testing.

Random breath testing would mark a fundamental change in our law. Current expectations dictate that an individual is susceptible to a search and seizure only when officers reasonably suspect that the person has done something wrong. The random breath testing framework, by contrast, requires that one must now prove that they have done nothing wrong. This transforms the police-citizen interaction; the presumption of innocence is replaced with a presumption of guilt.

We recognize that there are written opinions suggesting that the implementation of random breath testing would be constitutional. I would like to raise two major reasons why we believe random breath testing is not a justifiable limit of charter rights. First, I will discuss the lack of evidence justifying this increased intrusion on charter rights. Second, I will discuss the impact that an additional arbitrary search power will have on individuals, and in particular those who come from minority communities.

It is true that the introduction of random breath testing has been revolutionary in many countries. Random breath testing does work to deter impaired driving, but the correct question is not whether random breath testing works. In Canada, what we need to ask is whether random breath testing will be more effective in deterring impaired drivers than is our current regime of selective breath testing, a practice that we have had in place for decades, which does less to limit the charter rights of individuals. This is a question that is extremely difficult to answer. Indeed, we think that a review of the research on this topic suggests that it is a question that it is not possible to answer on the basis of the current research and the existing international comparators, particularly New Zealand, Australia, and Ireland.

There are two main difficulties with any attempt to conclude that the success of random breath testing in other jurisdictions would carry over to the Canadian context. First, the vast majority of jurisdictions that have implemented random breath testing did not have any roadside testing program before they introduced the program. The successes of these programs do not speak to the comparison between random breath testing and selective breath testing. If random breath testing is adopted in Canada, it will be implemented in a country that has had decades of RIDE programs, in which drivers have become habituated to being stopped on the side of the road for the purposes of a sobriety check.

In Canada, selective breath testing, combined with other initiatives, has led to our own revolution in impaired driving. We've seen the percentage of driver fatalities involving alcohol drop from 62% to roughly half that mark today.

While there are some jurisdictions that implemented random breath testing after first implementing selective breath testing and experienced an additional decline with the introduction of random breath testing—again, the comparatives here are New Zealand, Ireland, and certain jurisdictions in Australia—the success of random breath testing in these countries cannot be divorced from the host of other measures to combat impaired driving that were introduced at the same time, such as drastically increased enforcement and publicity efforts. As such, it is simply not possible, on the basis of the existing research, to tease apart the impact of implementing random breath testing and all of the other considerable efforts that went on at the same time. For this reason, we view the projected impact of random breath testing implementation in Canada as more speculative than certain.

This brings me to our second broad area of concern. A speculative effect is simply not sufficient to justify authorizing police powers that we know will limit charter rights. We are especially concerned about the impact that an additional arbitrary police search power will have on individuals who come from minority communities. The current proposal would not limit the new search power to stationary checkpoints, where discretion is curtailed and therefore the risk of racial profiling or other improper exercises of police powers is reduced. Those who are already disproportionately stopped while driving will now not only be pulled over and questioned, but required to provide a breath sample as well. For those individuals who tend to be singled out disproportionately, a breath demand during a so-called routine stop will frequently be experienced as humiliating and degrading. It is a mistake to think that a breath demand will, in fact, always be a quick and routine affair. Many individuals will be required to exit the vehicle and stand on the side of the roadway, or sit in the police cruiser, while they provide a breath sample.

This factual background informs our constitutional analysis that random breath testing is unconstitutional as currently presented. As indicated earlier, we have spoken to additional concerns with Bill C-46 in our brief. I would urge the committee to examine our written submissions along with the detailed recommendations in our brief that are aimed at addressing our most serious concerns.

Thank you.

[Kathryn Pentz, Treasurer, Criminal Justice Section, Canadian Bar Association]

Thank you.

The criminal justice section of the Canadian Bar Association is pleased to comment on Bill C-46, which proposes to amend Canada's impaired driving legislation. The section recognizes the importance of road safety and the need to ensure that Canadian law offers effective enforcement mechanisms to address impaired driving. As front-line practitioners, crowns and defence lawyers, the CBA feels that we are very familiar with the operation of the law in this area and the demands impaired driving cases place on the system.

The reality is that litigation of impaired driving consumes significant court resources, and any change should be approached cautiously and only when shown to be necessary. Part 1 of the bill deals with impairment by drugs. Drug-impaired driving is a major concern and with the expected legalization of marijuana, the number of drivers on the road under the influence of marijuana is likely to increase. We appreciate the need to address this reality.

Part 1 of Bill C-46 would amend section 253 of the Criminal Code to provide acceptable levels for drugs, as we now have for alcohol. However, the reality is that it is much more difficult to determine an impairment level for drugs than for alcohol. Most experts will agree that everyone is impaired to some degree by alcohol at .08, but the analysis is not so simple in relation to drugs. In the fall of 2016, I had the opportunity to attend a government-sponsored conference in Quebec City on marijuana-impaired driving. The experts there from both the U.S. and Canada were unanimous that it was impossible to set a limit at which all drivers would be impaired by marijuana. Habitual users will have a higher tolerance and will not be impaired as easily as an occasional user. If the limit was set at five nanograms, a habitual user could fail the test but not necessarily be impaired. In contrast, an occasional user might pass the test but still be quite impaired.

The CBA is an association of lawyers, and unfortunately we cannot offer scientifically valid solutions. What we want to do today, however, is identify this as a problem and say that in order to comply with Canada's Constitution, any proposed limits must link the concentration level to impairment based on proven scientific evidence.

Part 2 of Bill C-46 would replace the existing criminal legislation on impaired driving with an entirely new regime. From the perspective of front-line practitioners, both the crown and defence, this is extremely problematic. In fact, our first recommendation is that part 1 of the bill proceed and part 2 be deleted.

Impaired driving is one of the most extensively litigated areas of criminal law, and every aspect of the existing law has been subject to intensive constitutional scrutiny. The law is now settled. When cases are litigated, the arguments are mainly about the facts of a particular case and how they relate to the established law. We are not arguing on how the law of those sections should be interpreted. If part 2 of Bill C-46 were proclaimed, we would basically be back at square one, arguing interpretation and constitutionality of the new provisions.

The criminal justice system is still struggling to deal with the time limits recently imposed by the Jordan decision of the Supreme Court of Canada. The government has recognized that court efficiencies are at a critical point. The Senate has recently released its report with recommendations to achieve greater efficiencies. We all acknowledge that court delays are a major concern. The CBA's criminal justice section believes that this is not the time to impose legislation that will add significant demands on the system. A complete revision of impaired driving laws, in our opinion, is unnecessary. Apart from the need to address drug impairment with the new technological advances on the market, the existing laws are not deficient. Any deficiencies that we see arising would result more often from a lack of training and resources than from problems with the existing legislation.

I will offer a few examples of our specific concerns in relation to part 2 of Bill C-46.

Proposed subsection 320.14(5) provides a defence to “over 80” if the driver consumed alcohol after driving, had no expectation that they would be required to provide a sample, and the levels were consistent with a level under 80 milligrams at the time of driving.

The aspect of having no expectation that they would be required to provide a sample is something new in legislation. The language “no reasonable expectation”, who will have to prove or disprove that expectation? What is a “reasonable expectation”? Presently, if an individual attempts to skew Breathalyzer results by consuming large amounts of alcohol after driving, we have the option of charging that individual with obstruction of justice. The only addition of this “no reasonable grounds to believe that one would be asked to provide a sample” is to introduce new terminology that would spawn further litigation.

We also feel very strongly about the mandatory roadside testing under proposed subsection 320.27(2). That testing is provided when the officer has a screening device. First and foremost, we have to recognize that it would involve a tremendous input of resources to get these screening devices out there, but the essence of the CBA's objection is that it is random testing. We view this as a violation of section 8 of the charter and believe it would not withstand constitutional challenge.

Advocates of random testing frequently look to Australia and its experience, where there was a significant reduction of fatal and serious crashes following the introduction of random testing, but we have to recognize that Australia does not have a charter of rights. More importantly, when they went to random testing, they went from no testing to random testing. In Canada, when we went from no testing to suspicion-based testing, we also had a reduction. We can't look at the Australian model and assume that we are going to have the same reductions.

The other reality, Ireland, has had some success, but again, Ireland deals with drinking and driving largely under an administrative scheme as opposed to a criminal justice scheme.

When we are looking at mandatory roadside testing, it's important that we recognize those factors and not simply jump aboard other studies and assume that we are going to have the same results with our existing legislation and without going to the administrative regime that has been seen in other countries.

The CBA is also concerned about proposed paragraph 320.28(2)(b), which seems to allow any police officer to completely bypass the drug enforcement officer and make a demand for a bodily substance. Under the existing legislation, if an officer believes a person is impaired, they may demand that the person comply with testing by a properly qualified police officer, a DRE officer.

Under the new legislation, the police officer can do that, or they can bypass the DRE officer directly and make their own demand for a bodily substance. This is, in essence, totally bypassing the need for the trained officer. We have a situation where the DRE officer, who is trained, has to go through tests before he can make a request for bodily samples, yet the untrained officer can just make a request for bodily substances without doing any testing. We view that, again, as a violation, and we believe very strongly that untrained officers should not be permitted to make a demand for a bodily substance. That is far more intrusive than making a demand for breath.

Proposed section 320.29 amends the section dealing with warrants after an accident resulting in death or bodily injury. However, unlike in the existing warrant section, the officer does not need to have any grounds to believe an offence was committed, only that there was an accident, coupled with a suspicion that the person has drugs in their system—not “had” drugs in their system at the time of the accident, but “has” drugs in their system at the time of the request of the warrant. There is no linkage at all to the drugs or the alcohol or the accident. This could basically allow the police to make a request for a warrant in any case where there's a death or bodily harm even where there's no allegation of an offence by the person targeted. Again, there are significant charter implications for such a broad authorization.

Bill C-46 still contains mandatory minimum sentences. We were pleased that the extent that was in Bill C-226 was removed, but mandatory minimum still exists in Bill C-46. The CBA has long opposed mandatory minimum sentences and we continue to do so. The minister has also recognized these as problematic and we support the judicial discretion to determine the appropriate penalty in this case, in individual cases.

Proposed section 320.23 provides that an offender is not subject to mandatory minimums if he or she completes a treatment program, but under Bill C-46, that can only happen with the crown's consent. We believe that it should be the court and not the crown who determines if a treatment program is required. We are also concerned that the lack of available treatment facilities in some jurisdictions could result in inconsistencies in the application of this section.

Thank you for your attention and I welcome any questions.

[Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association]

Thank you for inviting the Canadian Bar Association to discuss Bill C-46 with you today. The CBA is a national association of over 36,000 lawyers, law students, notaries, and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice, and that aspect brings us to appear before you today.

The CBA's criminal justice section consists of experienced lawyers who practise in Canada's criminal courts on a daily basis from both the prosecution and defence side. With me is Kathryn Pentz, the current chief crown attorney of Cape Breton and secretary of our national section. She will address some main points from our submission in response to your questions.

Thank you.

[Prof. Robert Solomon]

Thank you for the opportunity to comment on Bill C-46. I believe this is the sixth or seventh time I have appeared before the justice committee in regard to impaired driving issues.

As indicated, I'm a professor of law at Western University and I've been researching and writing in the field for about 35 years. I've worked with MADD Canada, its predecessor organizations, and other groups. However, I'm here today on behalf of myself, Dean Erika Chamberlain of the faculty of law at Western University, and Dr. Roy Purssell, professor of emergency medicine, University of British Columbia and medical lead of the British Columbia Drug and Poison Information Centre.

Among other things, Bill C-46 will simplify and clarify the federal impaired driving law, create new drug-impaired driving offences, authorize roadside oral fluid testing, and address many evidentiary procedural and technical concerns with the current law. We support these measures because they will improve the federal impaired driving legislation. However, in terms of traffic safety, by far the most important measure is the mandatory alcohol screening provision. Consequently, I will limit my comments to this issue.

This measure would authorize the police to demand a roadside breath test from any driver they have lawfully stopped. The test is conducted while the driver remains seated in the car, and the average stop takes approximately two minutes. The results of the screening test are not admissible in court, but rather are used exclusively as a screening mechanism to determine if there are grounds for further testing. The Criminal Lawyers' Association and others have claimed that mandatory alcohol screening is not necessary, and that Canada's impaired driving laws are working well. It's difficult to see how anyone can credibly make that claim given that impairment-related crashes kill about 1,000 Canadians a year, injure almost another 60,000 more, a disproportionate percentage of whom are teenagers and young adults. Those between the ages of 16 and 25 represent 13% of the population but 31% of alcohol-related crash deaths.

Our current law has left Canada with one of the worst impaired driving records among comparable countries. Consistent with earlier studies, the United States Centers for Disease Control reported that Canada had the highest percentage of alcohol-related crash deaths among 20 high-income countries in 2013. Although Canadians drink considerably less than their counterparts, they're much more likely to die in an alcohol-related crash. For example, Canada’s per capita rate of alcohol-related crash deaths is almost five times that of Germany, even though Canadians consume 33% less alcohol. They drink more, we die more.

The laws in these other countries do a far better job than the laws in Canada of separating drinking from driving. Not coincidentally, 17 of those 19 countries have comprehensive mandatory alcohol screening programs. In fact, according to a World Health Organization traffic study, 121 out of 180 countries have some form of mandatary alcohol screening. Canada's laws are not only out of step with comparable democracies in developed countries, they're out of step with the rest of the world.

Research over the last 45 years in Sweden, Finland, Denmark, Australia, the EU, Czech Republic, Switzerland, and numerous other countries, have shown that mandatory alcohol screening generates substantial and lasting reductions in impaired driving crashes, deaths, and injuries. For example, a 2004 study concluded that New Zealand's fully implemented mandatory alcohol screening program resulted in a 54% decrease in serious and fatal night-time crashes and saved society more than $1 billion in 1997. Ireland achieved similar reductions in crash deaths and injuries within a decade of enacting its mandatory alcohol screening program in 2006. Rather than overburdening the courts, as has been suggested by some people, the introduction of mandatory alcohol screening in Ireland was the major factor in impaired driving charges dropping from 18,500 in 2006 to 6,000 in 2015.

While the dramatic traffic safety benefits of MAS, mandatory alcohol screening, were first established by studies in the 1970s, 1980s, and 1990s, this body of research is wholly consistent with recent research from New Zealand in 2004, the Netherlands in 2005, Switzerland in 2006, even the United States in 2006, Denmark in 2007, Estonia in 2007, Czech Republic in 2010, the European Union in 2010 and 2003, Hong Kong in 2013, Ireland in 2015, and Australia in each of the last four years. These studies are directly relevant and can hardly be considered dated. Moreover, many of the studies I've referred to took into account potentially confounding factors.

The assertion that there is no direct evidence that mandatory alcohol screening is better than selective breath testing, the system we currently have, is simply false. The sharp decreases in fatal crashes that occurred in Queensland, Western Australia, New Zealand, and Ireland occurred after those jurisdictions moved from selective breath testing to mandatory alcohol screening, exactly what would occur in Canada if the mandatory alcohol screening provisions in Bill C-46 were enacted.

Critics have claimed that mandatory alcohol screening would lead to targeting of certain groups. In fact, the opposite is true. Canadian police currently have the power to stop vehicles—both under common law and under provincial statute in most provinces—to question the drivers about their driving, their sobriety, their licence, and their insurance. Somewhere between four million and six million Canadians are stopped each and every year at sobriety checkpoints and during routine police patrol activities. Currently, the processing of these drivers is based on the officer's subjective assessment, using his or her own unaided senses. Mandatory alcohol screening would change only one aspect of the existing law, namely, the basis for demanding a roadside breath test. In contrast to the current system, under mandatory alcohol screening, all drivers passing the checkpoint are stopped, and all drivers are tested using an objective screening test rather than the officer's subjective judgment. Mandatory alcohol screening limits subjectivity in assessing drivers.

MAS, mandatory alcohol screening, will be challenged under the Canadian Charter of Rights and Freedoms, but we have to put mandatory alcohol screening in the context of other accepted screening procedures that occur on a daily basis. Millions of Canadians are routinely subject to mandatory screening at Canadian airports—131 million, apparently, the last data indicates—at our borders, in courts, and in many other government buildings. The Canadian courts have never held that these mandatory screening procedures violate the charter. To put it bluntly, far more Canadians are killed on our roads in alcohol-related crashes than in attacks at our airports, borders, and courts. Mandatory alcohol screening is less intrusive, inconvenient, and stigmatizing than are many of these other screening procedures. It operates in exactly the same way and serves the same protective purpose. Given that the courts have upheld the constitutionality of airport, border, and courthouse screening, there is no principled basis for reaching the opposite conclusion in terms of RBT. I am pleased to leave further discussion of the charter to my colleague Dr. Peter Hogg, Canada's pre-eminent constitutional law scholar, who will be appearing in the next session.

Decades of experience in dozens of countries indicates that implementing a comprehensive mandatory alcohol screening program would save hundreds of lives, prevent tens of thousands of injuries, and reduce the social costs of impaired driving by billions of dollars a year. Rather than overburdening the courts, mandatory alcohol screening has been shown to reduce impaired driving charges and prosecutions. Frankly, it's about time that Canada's impaired driving law focused on protecting the public rather than immunizing impaired drivers from criminal responsibilities for the needless deaths and injuries that they cause on our roads.

The major problem has never been a lack of research, but rather a lack of political will. Parliament should follow the evidence, enact the MAS provisions in Bill C-46, and finally bring Canada's federal impaired driving law into line with the laws in the rest of the world.

I would be happy to provide the committee and my colleagues with a copy of our published and unpublished studies that document the position that we've taken here today.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Absolutely.

I'd like to welcome Mr. May, who is replacing Ms. Khalid today, and Mr. Ehsassi, who is replacing Mr. Bittle.

It's also a pleasure to commence our study of Bill C-46,an act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other acts, or as we all think of it, impaired driving.

We have a panel of very distinguished witnesses before us today. We have with us Mr. Robert Solomon, distinguished university professor, faculty of law, Western University.

Welcome, Mr. Solomon.

[Bill Karsten]

Touché.

Sir, thank you for those comments. One thing about the Federation of Canadian Municipalities, it has great respect for the work the federal government is doing on all the files and I certainly wouldn't want to be combative in responding to your points. They're well taken.

The issue, I think, in terms of when you suggest that yes, we have talked and have had meetings with folks like Mr. Blair etc., we view those more as preliminary consultations as opposed to the ability to really sit down at the table and understand this as it evolves week by week. That's still a message we have in terms of needing to be at the table and involved all the time.

It's a very interesting point that you make in terms of the variance between the two companion pieces of legislation, Bill C-45 and Bill C-46. We will be providing additional information on FCM's position in a forthcoming submission to the House of Commons justice committee that will be specifically addressing Bill C-46.

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

I think we'll move to municipal issues for a while.

Mayor Karsten, you spoke in terms of needing an extensive implementation process, co-ordinating with all levels of government and so forth. Certainly, that's been under way ever since this process began. I know that Parliamentary Secretary Blair has consulted across the country, with both provincial partners as well as municipal, so I think that is under way.

Other things like prioritizing decision points, federal funding and so forth, are really out of the scope of what this committee is commissioned to do. Our job is to examine Bill C-45, which deals really with the treatment of marijuana in terms of whether it's legal or not. It doesn't deal with impairment issues. Impairment issues are dealt with in Bill C-46, the study of which is going to be under way soon. Bill C-46 does provide additional mechanisms, additional tools, for detecting and processing impairment situations.

I'd like to correct the record. Ms. Gladu said that in Colorado the impaired driving rate increased. We have a letter from the Governor of Colorado and the Attorney General for Colorado too, the Attorney General of the United States, saying that in the first six months of 2017 impairment actually decreased by 21%. I take note of Ms. Emery's reference to the national highway safety board, which indicates not a major increase at least in impairment offences, so I would suggest that impairment is probably not the issue to talk about in respect to legalization.

To be more specific, right now in British Columbia we have situations where illicit growers will rent a property and turn it into a grow op, which is not appropriate for the property, not appropriate for the landlord, so policing grow ops does become an issue and I think that with this new legislation, that sort of thing will cease. I would suggest to you that's a case where this legislation will reduce the load on municipalities so I would ask all three of you witnesses if you would like to testify to that.

Starting with Mayor Karsten, please.

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

Thank you, Chair.

I'm going to start by perhaps answering in a small way some of your concerns about funding. I note that in terms of helping to implement Bill C-46, the provinces and territories can access up to $81 million for the purchasing of and training on oral fluid drug screening devices and training for field personnel for field sobriety testing and drug recognition expertise and so forth.

Provinces and territories will be responsible for distributing this funding to municipal and indigenous police forces within their jurisdictions. Beyond that, I think the funding concerns are the taxation and sharing schemes and are certainly beyond my scope. I think those are things that you're probably best advised to address with the new Minister of Crown-Indigenous Relations, as well as the Minister of Indigenous Services.

In terms of concerns that we are being rushed, I've heard this from a number of sources, of course, but from my experience in project management, it is important to have target dates. If you don't have target dates, things just slide out into infinity. It is important to have these dates to work towards, and I have found that it helps people to put the resources in place to try to meet these dates. I think they will be challenging, but I think we have to do our best to do it.

In terms of being ready, what aspects are most concerning to you? What aspects of this legislation do you think are going to be the most difficult for you to meet?

[Norm Keith]

There is more attention. The companion legislation to Bill C-45—Bill C-46—is moving towards dealing with a framework for public safety, in particular motor vehicle safety, and as technology advances and law enforcement concerns are understood and reflected in legislation, that will be dealt with.

Most Canadians seem to be more worried about public safety on our roadways than about workplace safety. My experience, if I have any expertise, is more in occupational workplace safety. It is a matter for concern, because it seems as though we're valuing the travelling public on the road more than we are the worker in the workplace.

I think there should be complementary legislative proactive testing measures taken. The proviso and the theme of the legislative framework I'm recommending is hopefully striking a balance between respecting workers' privacy and their need for assistance if they're proven to be impaired. There can, however, be as much or more harm done in a dangerous workplace or to a travelling member of the public—situations in which you have public safety but also occupational safety at play—than there would be with roadway safety.

The statistics are that for every person killed on the roadway you have about one person killed in the workplace, and it seems that the workplace risk of fatalities is being given less attention. That's why I've emphasized the points I have.