Justice Committee on May 30th, 2007

[Cpl Evan Graham]

Essentially that's what we're looking at right now. With the provisions of Bill C-32, we won't have that problem. There will be a demand to do the drug evaluations, the same as it is for a breath test, and the person will have the option of doing the evaluation or not. But if they don't do it, they'll be charged criminally. The provision of a bodily fluid sample will be an option, but if they choose not to, again, there will be criminal sanctions.

So we're going to treat drug-impaired driving exactly the same way as we treat alcohol-impaired driving, with the evaluator being the evidentiary breath technician.

[The Chair, Conservative, Art Hanger]

Thank you.

Let me throw another wrench into the works. Barely 40% of all drug charges laid, or impaired-driving charges laid, find a conviction. Is this going to change? Is anything in this bill going to change that? In fact, 40% may even be high.

[Cpl Evan Graham]

I can tell you that in states where the drug evaluation classification program has very solid footing, two of them being California and Arizona, the pleas are virtually all guilty pleas. The only way the defence can attack the findings of the evaluation is to attack the credibility of the police officer.

The science is sound. It's supported by different studies. As long as the police officer does everything the way they're supposed to, we're finding right now in Canada that we're getting convictions. We've only had two or three who have been found not guilty. We've never had a case appealed. And we've been doing this program in Canada since 1995, on a voluntary basis.

[The Chair, Conservative, Art Hanger]

Mr. Yost, do you have a comment?

[Greg Yost]

Perhaps I can make one comment.

You said that barely 40% result in convictions. The numbers I've seen are higher than that. A lot of cases don't go to trial; the person pleads guilty. So maybe it's only 40% of those going to trial.

As for what in this bill will bring that number up, well, we certainly believe the DRE is very solid and will help there. And we have the evidence to the contrary defence, making that defence a rational scientific defence instead of making it based upon hypothetical calculations of what the person's blood alcohol would have been.

So we are hopeful that this will lead to a higher conviction rate in those matters that are currently going to trial based upon the toxicologist and “me and my three drinking buddies” kind of evidence.

[The Chair, Conservative, Art Hanger]

Thank you, sir.

Mr. Petit had his hand up first. Then we will go to Mr. Lee and then Mr. Thompson.

Go ahead, Mr. Petit. I recognized you.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

Now, there are people who are skilled in screening for drugs and other substances. We know that when it comes to determining alcohol levels, there are issues involving timing, quantity, weight and height that can help the police. For example, the police use a breathalyzer test to determine whether the person's blood alcohol level is over the legal limit. We therefore have all kinds of tools to help lay charges and establish a defence.

When it comes to drugs, have we already determined everything we have and everything we know about time, height, weight and quantity? Will police officers know how to use those guidelines, or will they be adrift, so to say? I am not trying to ascribe ill intent to anyone, but this is something I would like to know. We are very familiar with alcohol, because for over 20 years we have been focusing on time, height, weight, quantity and other factors that affect how it acts. But will that kind of knowledge be available to drug recognition experts, or DREs?

[Greg Yost]

In actual fact, the answer is no. I think that drug recognition experts will testify before you, at which time they will be able to give you a much more definite answer.

The problem is that there are seven families of drugs. There are thousands of drugs, many of which are illegal, and their effects on any given individual can depend on all kinds of factors. Drugs don't act like alcohol. Moreover, if you add a small amount of alcohol to some drugs, the effects can be quite different.

The prosecutions will be based on observations leading to an individual's arrest. The arrest is based on grounds the police might have had to suspect the individual had consumed drugs, as well as on the results of roadside tests carried out, and on the expert's assessment, which is then confirmed by the tests. If the tests do not confirm that the individual took cocaine when the expert said he took cocaine, that will be the end of it, and there will be no prosecution. That sequence has already been approved by courts in Canada as being sufficiently convincing to incriminate the individual beyond any reasonable doubt.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

To conclude that point, when an individual has been convicted for driving with illegal blood alcohol levels, after three months the individual can obtain a device that breathalyzes him every time he wishes to start the car, and thus makes it possible to use his car again. Let's say I was convicted for taking drugs, and not alcohol, what would I have to do to have that equivalent right restored?

[Greg Yost]

I don't see how that would be possible. You would need to be admitted into the provincial program, and I don't think the province would accept someone with a drug-abuse problem into an alcohol-abuse program. Moreover, when you take the wheel, there's no screening test to determine whether you've taken marijuana. Those instruments don't exist. It would be up to the provinces to decide whether you could enter the program, but I really don't see why we should open those doors.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Madam Jennings, quickly.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Very quickly.

The minister said that there are 2,000 police officers across Canada, if I'm not mistaken, trained to conduct the sobriety tests on the roadside, and at this time, there are 250 drug recognition experts. Then he said there will be an additional 144.

Are the 2,000 trained police officers just RCMP? If they are not, how many belong to provincial and municipal police forces? Can you identify them, give us an actual breakdown?

I'd also like to know, given that we're being told that the police forces in Quebec already do an evaluation by a drug recognition expert, how many have been trained—I'm assuming by the Sûreté du Québec and probably the Montreal police force—by which police forces, and for how long?

With this legislation, we're going to need a much greater number, and I'm worried that the figures we're being given are primarily for the RCMP. They may not take into account all of the police forces across Canada that would be required to implement this, and therefore the need to ensure that this is properly implemented.

[Cpl Evan Graham]

There are currently 2,428 police officers who have received training in standardized field sobriety tests. They run the gamut from every municipal, provincial, and regional agency, as well as the provincial police forces in Ontario and Quebec, the RCMP, and the Department of National Defence police. The same goes for those trained as DREs.

In 2003, when we took the program national--previous to that it was just in British Columbia--the decision was made to ensure that we trained police agencies right across the country regardless of what organization they're from. I can give you the exact numbers; I don't have them with me. I have a breakdown by province and whether they're municipal, regional, or provincial, as well as the RCMP.

The numbers are highest for the RCMP. The program started in British Columbia and ran there for 10 years before it went national. The RCMP are the provincial police in B.C. The split there is about two-thirds RCMP and one-third municipal, and the same would go for those who receive the training.

Nationally, it's the opposite. We're sitting around 18% to 20% in the RCMP who are trained, whereas the rest are made up of other agencies. Depending on what province it is, the numbers are different. The RCMP don't police here in Ontario, so we have very few people who are trained as DREs or are SFST trained.

Quebec has one DRE. She is with the Gatineau police. Over the years we've trained members of the SQ as well as the Montreal city police, but they didn't follow through with the training. Last year the Province of Quebec took the stand that until the legislation is passed giving us the authority to have a demand for the drug evaluation, the police forces were not to participate in the training. That's why there's nobody trained in Quebec. We are prepared to do the training there, but for reasons that are beyond our control, we can't.

There was a needs assessment in 2003 as well. Every police agency was asked to submit the questionnaire. The onus was on them to let us know what they thought, because that's what we use to prioritize the training. Those agencies that said they wanted the training are getting it; those that said they don't are not on the priority list. When we have a demand for training, we go to that list to ascertain who should receive priority training.

[The Chair, Conservative, Art Hanger]

Thank you, Corporal.

Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you.

I have a question, and I don't want anyone to take my scrutiny of this legislation as lack of support for the bill generally.

There are a couple of triggers in the legislation that involve the suspected presence of an illegal drug in the body of the person. What's bothering me is this. I'm looking for ways to prevent this statute from being a continuing search for illegal drugs, even if they don't impair. In order to trigger the police officer's decision, he or she just has to suspect that there is a scheduled drug in the system of the person. There doesn't appear to be a concurrent requirement for impairment. If there's some alcohol associated with it, then one could suspect that the mix of alcohol and the drug might produce impairment.

I'll direct my question to Corporal Graham. In your experience in the last few years, has it ever come up, in Canada or elsewhere, that police start relying on this type of legislation to take people who are known to police off the road and put them through the drill when they suspect they've been taking illegal drugs but maybe the alleged impairment isn't that clear?

I'm throwing that out here. I'm thinking of many drugs that would never induce impairment in certain quantities but would be illegally present, in the pocket, in the body, etc.

[Cpl Evan Graham]

For the drug evaluation, although the Supreme Court of Canada gave us the authority to stop vehicles, to check driver fitness and vehicle fitness, generally speaking the vehicles are stopped for some reason. If we suspect that it may be a matter of driver fitness, then they'd do the sobriety test. If the person passes the sobriety test, we don't continue the investigation; the driver is free to go.

Whatever we do, we still have to be accountable to the court and be able to justify why we're advancing from stage to stage. When we get them back to the office for the drug evaluation, if they pass the sobriety test, or the divided attention test, there's no point in going through the clinical indicators because we don't have impairment. Without the impairment, we don't have a charge, because the charge is specifically for driving or operating a motor vehicle while impaired.

So whether they have consumed alcohol or drugs.... And I've actually had cases where we've stopped people and we've seen them smoking marijuana, and they don't do the roadside tests very well, and there were reasons for that; they may have had problems. In the case of this driver in particular, he was scared—and rightfully so. We went back to the office and put him through tests. There was some indication that there might be some impairment—bearing in mind that marijuana is more mentally impairing than physically impairing. At the conclusion of the clinical indicators, I was the evaluator and said flat out, this person is not impaired. Yes, they consumed marijuana, but that's no different from their having had a beer. As a result, the person was let go without any charges.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Chairman, that's the response of an excellent policeman. I hope every one of our police officers thinks and acts the same way. You did refer quite properly to the fact that in the end, whatever happens, it would be scrutinized by a court.

But in terms of processing guys on prairie roads, the court may never see that, the fact that the charge may not be laid. It could be an officer who has a job to do and wants to get the evaluation done and knows the person is a drug taker.

Am I thinking outside the envelope here, or are my concerns unjustified?

[Cpl Evan Graham]

I would suggest they are somewhat unjustified.

If an evaluation is done by a drug recognition expert, that evaluation must be reviewed by an instructor. Every evaluation the person does is put into a log. We're now working on an electronic log that will be done via the Internet, so I can access any evaluation anytime. The instructors review it to make sure the protocol is done correctly and the fines are correct—and these are things they must do to remain in the program. As a DRE, we must be recertified every two years.

If a DRE doesn't comply with the program, or they're consistently doing things that would bring the program into disrepute, then they're decertified and their supervisor will be notified of the fact that they've been removed from the program. I expect there would be some kind of sanction taken against that individual, because they're putting not only the program in disrepute, but also the agency they're working for.

So I just don't see that being an issue.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

I have 11 detachments in my riding. It's mostly rural. Last weekend, the long weekend, we had quite a problem in various campsites and campgrounds in different parts of Alberta.

My hometown—and Mr. Hanger is the only one here who is familiar with it—is up in the mountains and a popular place for people to go when they have a long weekend. It's great, beautiful country, with camping and all of that stuff. But we had a horrible weekend. Five people work in the detachment in my hometown and they had to call in reinforcements from some of the other detachments close by. There were numerous charges for drunkenness and impaired driving laid throughout the weekend, but I don't know of any DREs being available to any of these rural people. How do you address that?

It was a fairly large number of people who were arrested and, I assume, charged for the offences. A lot of it would have come under this legislation as well, because drugs were certainly a big part of it.

So I'm just curious as to what rural detachments can do. Six out of the 11 detachments, I can assure you, are in pretty remote areas. Five are fairly close to Calgary and larger centres, but—

[Cpl Evan Graham]

Alberta had its first DRE course in November of last year. There were 24 candidates. Nine of them were from the Edmonton Police Service, and the rest were from around the province, including the RCMP. The majority of those were from non-major centres.

It's going to be a problem until we have capacity. If we were starting off with the breath testing program, we'd have the same problems. We essentially have to look at where the largest problem is right now, that being the major centres and the highways that are the busiest, before we get to the rural areas. And of course, if the RCMP are policing it, there is always the possibility that we'd put somebody in there and get them trained and then they would get transferred.

So,in the short term, the smaller centres and the three territories in particular will probably not get that many people trained, just because of how we have to prioritize things.

[Myron Thompson, Conservative, Wild Rose, AB]

Is that training under way in the assumption that this bill will pass?

[Cpl Evan Graham]

Yes, it is, and it has been since 2003.

[Myron Thompson, Conservative, Wild Rose, AB]

Well, we'd better take care of that assumption and get the job done, gang. Let's pass this bill, because I think it's a great bill.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Thompson.

Mr. Petit.