Bill C-46 (Historical)

An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts

Part 1 amends the provisions of the Criminal Code that deal with offences and procedures relating to drug-impaired driving. Among other things, the amendments
(a) enact new criminal offences for driving with a blood drug concentration that is equal to or higher than the permitted concentration;
(b) authorize the Governor in Council to establish blood drug concentrations; and
(c) authorize peace officers who suspect a driver has a drug in their body to demand that the driver provide a sample of a bodily substance for analysis by drug screening equipment that is approved by the Attorney General of Canada.
Part 2 repeals the provisions of the Criminal Code that deal with offences and procedures relating to conveyances, including those provisions enacted by Part 1, and replaces them with provisions in a new Part of the Criminal Code that, among other things,
(a) re-enact and modernize offences and procedures relating to conveyances;
(b) authorize mandatory roadside screening for alcohol;
(c) establish the requirements to prove a person’s blood alcohol concentration; and
(d) increase certain maximum penalties and certain minimum fines.
Part 3 contains coordinating amendments and the coming into force provision.

The House proceeded to the consideration of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, as reported (with amendment) from the committee.

Speaker's Ruling

[The Deputy Speaker, Bruce Stanton]

There are two motions in amendment standing on the Notice Paper for the report stage of Bill C-46. Motions Nos. 1 and 2 will be grouped for debate and voted upon according to the voting pattern available at the table.

Motions in Amendment

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

, seconded by the member for La Pointe-de-l'Île, moved:

Motion No. 1

That Bill C-46 be amended by deleting Clause 15.

Motion No. 2

That Bill C-46, in Clause 31.1, be amended by replacing line 11 on page 41 with the following:

“ed by this Act that includes an evaluation of whether the provisions have resulted in differential impacts on particular groups likely to be targeted based on prohibited grounds of discrimination, and prepare a report setting out”

She said: Mr. Speaker, it is an honour for me to rise today to speak to my amendments to Bill C-46, an act to amend the Criminal Code and to make consequential amendments to other acts.

That is a very benign title. It does not tell us what we are debating. We are debating a bill that would deal with, I think all of us in the House can agree, the critical issue of doing whatever we can to reduce the loss of life and accidents, which are so damaging to society, caused by people who drink and drive or drive under the influence of other intoxicants. The bill deals with substance abuse and getting behind the wheel of a car.

We all know the statistics, but they are absolutely devastating to imagine, as Mothers Against Drunk Driving, a group I support, points out. Mothers Against Drunk Driving's estimate is that in Canada, every day, on average, four people are killed in automobile crashes. If we had the kind of attention and immediate review of auto crashes and people killed in auto crashes that we do for people travelling on public transit, such as airplanes, we would be made aware on a daily basis that our publicly accepted system of transport is lethal.

Our society is built around the car. Our transportation networks are built around the car. We do not seem to mind the idea that our everyday method of getting from A to B involves a significant risk of death. We take it as something that is just one of those risks we live with. A car is very powerful, and potentially a killing machine.

In 2012, 2,546 Canadians died in automobile crashes, but to the point of today's bill, 58.8% of those crashes involved a driver who had had at least some measurable intoxicant in his or her system.

In 2015, beyond those accidents that involve fatalities, a total of over 72,000 impaired driving incidents happened across Canada. What is interesting is that the statistics reflect that this is a significant improvement, with 65% fewer incidents than in 1986. Therefore, the measures we are taking make a difference, as does the awareness that drinking and driving is not acceptable. Blood alcohol levels and roadside screening make a difference.

There is no question that we want to support measures that would ensure that Canadians who have had any measurable intoxicants do not get behind the wheel of a car, that their friends stop them, that the guy at the bar stops them, and that their own concern that they will be hit with serious penalties and jail time will stop them.

Now I will go to the bill and the reasons I have submitted the amendments. I support Bill C-46. Unlike some of the experts I will mention, I will vote for Bill C-46 even unamended, but here at report stage, I want to raise the concerns again. There are significant concerns from the Criminal Lawyers' Association and civil liberties associations that the bill would go too far and would end up being challenged in the courts. That is because it involves, without the proper constraints, random breath testing, as opposed to selective breath testing.

I have gone through the evidence very carefully. It is clear that there are a lot of statistics that say that when this jurisdiction or that jurisdiction brought in random breath testing, drunk driving incidence went down. The people who study this say that we do not actually have good numbers that compare the results of selective breath testing and random breath testing to conclude that we could not have gotten the same result with selective breath testing.

What is the difference? If we have selective breath testing, we set up a roadside check, stop every driver, and look at every driver at a stationary vehicle check. We have seen roadside testing set up in different locations, particularly on evenings when people are more likely to have been out having something to drink or ingesting substances that are intoxicants before driving. The roadside testing is very effective. Selective testing is effective.

This law would go further, and this is where the various legal societies I have mentioned are concerned. Let me quote from the brief of the Criminal Lawyers' Association submitted to the committee back in September. It states:

We are also deeply concerned by the new random breath-testing regime. Increasing police powers do not come without societal costs. The experience of ‘carding’ or ‘street checks’ is instructive on how the exercise of police authority can disproportionately affect visible minorities.

Bill C-46 amounts to carding while in a car. It will inevitably disproportionately be employed against minority or marginalized communities.

A policy expert with the Canadian Centre on Substance Use and Addiction, Doug Beirness, was even more blunt. He stated:

...there is nothing truly random about random breath testing. The term random is used in place of more accurate and contentious descriptors, such as arbitrary or capricious.

The Canadian Civil Liberties Association went on to say, “a full review of the evidence”, over 23 studies, “does not provide convincing evidence that implementing [random breath testing] will necessarily have a greater impact on drinking and driving than Canada's current [selective breath-testing] system.”

My concerns are twofold. We should never pass legislation in this House that has a good public purpose, and I do not think any of us for one second will deny the importance of the public purpose, that has a significant risk of being derailed in the courts. Looking at the evidence put before the justice committee, I think this bill has a significant risk of being derailed in the courts. Likewise, we should do whatever we can to moderate the impacts of increased police powers and the risks of randomness.

I have been wondering if I should share this story with my colleagues in Parliament, and I think I will. More than 40 years ago, when I was living in a small village on Cape Breton Island, we had very limited RCMP protection. There was one detachment. My brother is younger than I am, and in those days, he had long hair. It was unusual in this particular community to have long hair. Every single time he went anywhere, he was pulled over by the RCMP. As I said, we had very limited RCMP protection, and it was very hard to get the RCMP when we were, for instance, in the middle of a store robbery, which also occurred in my family's business.

I love the RCMP. The members are wonderful, but I know for a fact that there is such a thing as selectively pulling people over, over and over again, and never finding anything. It is a form of harassment. For marginalized communities within Canada, I am very concerned about discriminatory and preferential random searches of particular marginalized groups. We know this happens. If we look at the statistics of who is in our prisons, overwhelmingly it is people of colour and indigenous people. It is not reflective of society as a whole. We know this about carding and urban police forces.

It is clear to me that there is going to be an increased problem for marginalized communities and a sense of being harassed. Therefore, I commend to members my second amendment, which is that when this process is reported back to Parliament, and this is my amendment to clause 31.1, there be an evaluation of whether the provisions have resulted in differential impacts on particular groups likely to be targeted based on prohibited grounds of discrimination and that a report set that out for us.

This will be a test for us as a society. I have no doubt that this bill will pass unamended. I am making an effort here, because I would like us to think about what happens when random breath testing is not random. As much as the societal purpose is overwhelmingly in the right direction, to get people who are drinking or intoxicated off the roads and to not let them get behind the wheel of a car, in this case, we should think twice and make the bill constitutional before we pass it.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

Mr. Speaker, I was honoured to sit on the justice committee on Bill C-46. However, I was quite shocked at the position of members across the way from the Liberal Party that they believed the current mandatory minimum sentencing of $1,000 fine for driving impaired and killing somebody was quite satisfactory. Unfortunately, the Liberal members did not want to increase that. We heard from a number of Canadian groups who believe this is blatantly unjust, particularly family members who have lost a loved one, to say that a minimum sentence of $1,000 fine for killing someone is just.

I would ask the member representing the Green Party of Canada if she feels those mandatory minimums for killing somebody while driving drunk are satisfactory.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I have to approach this on the basis of the impact societally of mandatory minimums. The overwhelming evidence from experts in criminology is that mandatory minimums do not work as a deterrent, and that mandatory minimums have an effect of skewing our judicial system so that a judge has less discretion in perhaps giving more significant penalties. In some states, for instance, Texas, they have stopped using mandatory minimums. They increase the discretion of a prosecutor to work with a defendant to force a result before it even goes to trial, and in some cases, allow a lesser penalty.

I know that my hon. friend for Langley—Aldergrove disagrees. However, I would rather see our courts apply the sentences based on a judge looking at the severity of the crime. I am also offended when someone who has killed someone while drinking and driving is let off with a light sentence. My disagreement with my friend for Langley—Aldergrove is that I do not think mandatory minimum sentences are the solution.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, I am very concerned as well, and not just about the random testing. When we look at traffic fatalities in Canada, we know that 16% of them are alcohol related, 24% are drug related, and another 18% are a combination of the two. What is troubling to me is the hypocrisy of legalizing marijuana, which is going to increase the amount of impaired drug driving, when there is not even a test for impairment. Whether the tests are random or not, there is no test for impairment with marijuana.

Would the member comment that?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, my hon. friend is correct that cannabis is to be legalized. However, the evidence is conflicting. We certainly do know that intoxication with cannabis and intoxication with alcohol have very different physiological impacts, and the blood tests are different. For instance, blood alcohol levels diminish much more quickly than residues of cannabis and THC in the system, which can be present for days and when a person is no longer intoxicated. A person behind the wheel of a car while having ingested cannabis is more likely to drive more slowly. The person may not be a safe driver, but is unlikely to do what people who have been drinking do, as we know historically, which is to drive more recklessly and faster.

The work is being done, and I am satisfied that we will see ways to analyze the intoxication of people who have ingested cannabis. I am more concerned—

[The Deputy Speaker, Bruce Stanton]

Questions and comments.

The hon. member for Scarborough—Guildwood.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, I thank the hon. member for her comments on this bill, which I think are largely constructive, and her amendments reflect a legitimate worry. However, I take issue with one concern the member has, which is that this proposed legislation would be challenged in the courts.

I can personally guarantee that this will be challenged in the courts. There is not a scintilla of doubt in mind that this will be challenged. I recollect the time when 0.08% was put in the Criminal Code, and it was challenged every which way from Sunday.

I would ask the hon. member this. Should Parliament still not face up to the larger public purpose of putting forward this legislation, and how the courts deal with it is how the courts deal with it?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I confess very honestly that this bill has led me to be torn. I have debated very strongly. I will vote for it if it is put forward without my amendments. I know that some of the experts before the justice committee urged that we not pass it without the amendments. I think the larger public purpose is so significant that the courts may or may not find that it is constitutional. There is that doubt.

I think the bill could have been constructed to ensure that the random nature of roadside screening have more surrounding it and include reasonable and probable grounds, so that police personnel would have enhanced access to breath screening, and blood drug and alcohol analysis at the roadside. I agree with all of that. The question is if the screening is not truly random and is targeting certain marginalized groups, I think that would increase the likelihood that it would be overturned in the courts. That is something that I think we could have addressed in amendments.

[Marco Mendicino, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I would like to begin by thanking my colleague from Saanich—Gulf Islands for her constructive input.

At the same time, for the reasons that follow, we will be encouraging all members to vote down the amendment and to vote for the bill in its current form.

I also just want to take a moment to address some of the comments that were raised by my hon. colleagues from the Conservative opposition. I would encourage them to read the bill very carefully, because imbedded within some of those questions were, at a minimum, some inaccurate assumptions about mandatory minimum penalties as they apply to the impaired driving regime, as well as whether or not we have the sufficient technology to test for impairment as we usher in a new era with regard to the strict regulation of cannabis. Obviously by doing so and by reflecting on the language of that bill carefully, my hope is that we will elevate debate in this House, in the interest of keeping our roads safe while at the same time safeguarding individual liberties.

It is a pleasure to speak on Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts. The bill will bring about the most important changes addressing alcohol and drug impaired driving since 1969 when Parliament enacted the offence of driving with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood, and authorized the police to demand a breath sample on an approved instrument.

Today, I will focus my remarks on the proposal in the bill that would authorize a police officer to demand a breath sample from any driver without needing to suspect that the driver had alcohol in their body. In Bill C-46, this is called mandatory alcohol screening, as members have heard. The enforcement tool was pioneered by Australia more than 30 years ago. It has now spread to New Zealand, the European Union, and dozens of other countries.

Since then, mandatory alcohol screening has been widely credited with dramatically reducing rates of impaired driving and saving many thousands of lives, as the member herself acknowledged.

The Standing Committee on Justice and Human Rights had considered mandatory alcohol screening when it held hearings on alcohol impaired driving in 2008 and 2009. In its 2009 report entitled, “Ending Alcohol-impaired Driving: A common approach”, the standing committee unanimously recommended that random roadside breath testing be put in place.

During its extensive hearings on Bill C-46, the standing committee heard numerous witnesses on the subject of mandatory alcohol screening. Professor Robert Solomon, who has written many articles on mandatory alcohol screening, as well eminent constitutional scholars like Professor Peter Hogg spoke in favour of mandatory alcohol screening.

Representatives of the Canadian Bar Association, the Canadian Council of Criminal Defence Lawyers, and the Canadian Civil Liberties Association expressed some concerns with mandatory alcohol screening.

The standing committee also heard from Australian experts about how mandatory alcohol screening works in that country, and its effectiveness in reducing deaths and injuries.

I believe it is fair to say that the arguments of opponents to mandatory alcohol screening were based partly on their claim that it is not needed in Canada, as our current system of roadside screening based on suspicion is just as effective and that mandatory alcohol screening would have a disproportionate effect on visible minorities.

With respect to the effectiveness of Canada's current suspicion-based system, it is important not only to look at the reductions in impaired driving that have occurred in Canada over the past 20 or 30 years, but also to consider Canada's alcohol impaired driving laws and how they fare when compared to other countries. The comparison is grim.

As Professor Solomon told the standing committee:

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.

These are the words of Professor Solomon, not any parliamentarian, a respected scholar.

Professor Solomon pointed out to the committee that the experience of other countries shows that going from suspicion-based roadside screening to mandatory screening has had a significant effect in reducing impaired driving deaths and injuries. He stated:

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.

Again, those were the words of Professor Solomon.

The standing committee also heard from Dr. Barry Watson of Queensland University of Technology. Dr. Watson explained the evolution of impaired driving legislation in Queensland and the effect of various countermeasures. Queensland introduced breath testing in the late 1960s, as did Canada. Queensland then introduced a program called reduced impaired driving, or RID. The police could randomly pull over other drivers, but could only breath test those they suspected of drinking. This is the system we currently have in Canada.

Finally, Queensland introduced mandatory alcohol screening in 1988. Dr. Watson's evidence strongly supports that mandatory alcohol screening is more effective than suspicion-based alcohol screening. He told the standing committee, “the introduction of random breath testing was associated with a further 18% decline in fatalities over and above what was the case when the sobriety checkpoint program was in place.” We can and must do better than we are, and I submit we should follow the example of these other jurisdictions that have been most successful in reducing the painful toll taken by alcohol-impaired driving. That means adopting mandatory alcohol screening.

More troubling is the concern expressed by several witnesses that mandatory alcohol screening would lead to racial profiling. This is a concern that we all share. We all know that there have been well-documented cases of police forces disproportionately carding or pulling over persons of colour. As my colleague made mention, there are indeed concerning statistics with respect to the overrepresentation of our indigenous and racialized communities in our jails. Let me be clear. Racial profiling is an abuse of police power. It is unacceptable. However, there is nothing in Bill C-46 that condones or promotes racial profiling.

Our government was aware that this criticism had been levelled at the provision authorizing mandatory alcohol screening in a former private member's bill, Bill C-226. Consequently, our government, in Bill C-46, proposed to specify that a police officer can only make a demand as follows:

in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law....

I pause to emphasize that passage, because it underscores that our government places a great value in ensuring that all law enforcement, and indeed all law state actors, exercise their powers in accordance with the law and the charter.

For further clarity, our government supports the introduction of an amendment to the bill's preamble, which serves as an interpretive aid for our courts. The amendment, which was adopted at committee, stated, “it is important that law enforcement officers...exercise investigative powers in a manner that is consistent with the Canadian Charter of Rights and Freedoms”.

Let me take a moment to refer to one last example of how this technology and these standards are working in other jurisdictions. The experience of Ireland supports the opinion of other witnesses who have testified, and other experts. There was an increase of about 10% in charges in the first year after Ireland introduced mandatory alcohol screening, but the number of charges have decreased steadily since then as Irish drivers have become aware of the new law. In fact, the number of charges in Ireland fell by almost 65% in the 10 years following the introduction of mandatory screening.

I believe that our courts will be able to cope with any increase in charges, because many provisions in Bill C-46 would address issues that have been causing delay, particularly with respect to disclosure, proof of blood alcohol concentration, the elimination of the bolus drinking defence, and restriction of the intervening drink defence.

In closing, I want to again thank my colleague from Saanich—Gulf Islands for her remarks. They were thoughtful, careful, and balanced. However, even she conceded that there is a good faith attempt here to strike the balance between the need to keep our roads safe while at the same time respecting an individual's charter rights. I encourage her to support the bill.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, the member opposite spoke a lot about alcohol, but not at all about marijuana. We have 253 days remaining before the Liberal government legalizes marijuana. What test will be used by police and the RCMP across the country to test for marijuana impairment, and what is the limit that will be considered the maximum allowable?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Mr. Speaker, I want to assure my hon. colleague that after careful consideration of expert evidence as well as development of new technologies, we will have the appropriate roadside screening device testing abilities to ensure we can measure impairment as it relates to cannabis. Indeed, this is a fundamental part of ushering in a new strict regime when it comes to regulating access to cannabis.

We know that the current approach to regulating cannabis is not working. I have experience in the criminal courts with respect to this. I am very proud of the work this government is doing to ensure we keep cannabis out of the hands of our children and keep our roads safe. This bill would accomplish both of those important objectives.

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

Mr. Speaker, I want to follow up on the question from my hon. colleague who asked about marijuana and roadside tests. I was at the justice committee meetings when we heard from the Australian police about their roadside tests. We also heard from an expert from a university in California, whose studies have to do with the relationship between impairment and what we get from drug tests for THC levels in blood and mouth swabs. Basically, there is no good test right now. There is not even any hint that we will have a good test in the next year or 10 years, because of the way that THC works in the body's physiology.

What test is the member talking about? We heard of nothing of the sort in committee.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Mr. Speaker, I sat through those same committee meetings, and I have to correct my hon. colleague. There was indeed much testimony in the way that technologies are used in other jurisdictions and how they are evolving and improving. We have something called oral fluid drug screeners, which will allow law enforcement actors to measure THC levels. We will ensure that we have an appropriate threshold to measure what impairment is for the purposes of keeping our roads safe.

I encourage my hon. colleagues to read the bill very carefully and to follow the debate as it evolves in this House. We are going to get this right. I am very proud of the work this government is doing to move forward with a cannabis and drug impairment regime that all Canadians can be proud of.