Justice Committee on May 30th, 2007

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

Thank you very much, Minister and Mr. Chairman.

I'll just ask the one question. You saw my pain as you were getting ready to pack your suitcases for your next important engagement.

It has to do with what I'll call the new possession offence in the bill. It's in clause 2 of the bill. The current Controlled Drugs and Substances Act has a possession offence in it, and it's used from time to time as necessary. The only thing is that the act does not make it an offence to possess schedule IV controlled substances, which are steroids and things like that.

Now we have, inserted into this bill, a possession offence involving care or control of a vehicle or vessel, even if it is not being operated, and it includes all of the schedules of the Controlled Drugs and Substances Act, so that what wasn't previously an offence of possession of drugs is now being made a drug possession offence in the Criminal Code, when it arguably, in the case of steroids, would have almost nothing to do with impairment of driving.

I'm curious about the policy reason for that.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's a very interesting question.

Mr. Lee quite correctly pointed out the provisions that change section 253.1, which tries to capture that individual who was operating or has the care and control of a vehicle and is also in possession of a substance under the Controlled Drugs and Substances Act.

With respect to the specific concern about steroids, Mr. Yost, would you like to make a comment?

[Greg Yost]

At first, I would say that section 253.1 was the model that came out of the standing committee the last time, except for those changes that I mentioned we thought were improvements, particularly tying it in with the prohibitions.

You raise an extremely interesting point regarding the possession of drugs that it's not an offence under the CDSA to be in possession of. I think we'll have to look at that one and perhaps discuss with the minister whether some amendment might have to be made to bring that into account.

Steroids, to my knowledge, do not affect your ability to drive at all.

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

Thank you for your question. We can deal with it later as we move along.

[The Chair, Conservative, Art Hanger]

Thank you, Minister, for your attendance here. We appreciate it.

Members, Mr. Yost and Corporal Graham will be remaining.

Mr. Petit, you're next on the list.

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

Thank you.

My question is to Mr. Yost.

We are very happy that the bill will be easily passed by everyone without too many amendments, but I do have questions, even though this is a government bill.

Imagine there is a police barricade. This is the easiest case, but in other situations, the driver doesn't turn on his rear lights and the police are suspicious. The officer approaches, the driver rolls down his window and the officer smells alcohol. He makes him get out of the car. In certain cases, he cautions him and makes him go through certain motions in order to determine if he is able to drive. We are still talking about alcohol. We have to agree on that. In fact, we cannot ask 99.9% of police officers to deal with drug cases for the moment, particularly as regards this bill. I am not saying that they would not know how to do so, but the fact is that they deal primarily with alcohol-related cases.

Say the police officer arrests this person after he has been tested with the instrument that determines if he has gone beyond the 10 degrees. He brings the person to the police station, where it is determined that the blood alcohol concentrations are not over the limit, but that the person is drug-impaired. The drug the person took did not slow down his abilities: it stimulated them. The roadside tests he underwent measures the slowing down of one's abilities. I'm talking here about bringing your finger up to your nose or walking in a straight line. Some drugs will allow you to do that. So how is the police officer to deal with that? It is up to him to protect the public. How will he manage that?

[Greg Yost]

First of all, I must make it clear that the person must have failed the roadside tests in order to be asked to come to the police station and undergo a breath analysis or a drug recognition expert's tests. If this person had taken a drug that makes him or her a better driver, the person will pass these tests without any problem.

Normally, the person's driving, for one reason or another, draws the attention of the police officer. The officer starts to discuss the problem he observed with the person. He will then notice something. It may be the smell of alcohol or of marijuana. It is possible that the person might start laughing or behaving bizarrely or unusually within the context of the discussion with the police officer. It is also possible that the person's eyes will not react normally.

That makes the police officer suspect that there may be drugs in the person's system. This legislation will allow police officers, under such circumstances, to do roadside testing. If the person fails these tests and the services of a drug recognition expert are available, the person will have to undergo that kind of test. This does not concern alcohol; you have to turn to an expert because that is needed to determine the presence of drugs. As far as mixtures are concerned, the seven drug families and their effects on a person, Corporal Graham should be able to tell us what the police officer would be looking for.

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

I am asking the question because I have legal concerns as well. Let's say that everything you have stated is true. He fails the tests. You yourself don't know what the effects of cocaine are, compared to the effects of marijuana or to those of a different drug. Cocaine might enable a level of functioning that would surprise you. There are even business people who take it every day, carry on working, and who don't show the effects.

There is something I want to know. Let's say that everything is fine, and you take your future defendant to the station. Then, you ask the police to do five things. You can check the person's pupils. We have talked about five possibilities, including checking eye pupils. I'm trying to understand you properly. You plan to ask police officers to perform medical acts, something that could pose a problem. I hope you understand that.

If you cause some problem by looking into a person's eyes, or by checking a person's eyes, that person could sue you because you did something unacceptable. Do you feel everything has been covered? Did you talk to medical corporations about those five acts, or actions that could be taken? I would like you to list them and tell me whether you have checked everything properly.

[Greg Yost]

Since this is current practice in the United States, we consulted the International Association of Chiefs of Police about the tests we can use to screen for different drugs.

I can't imagine what problem asking someone to track a light in a fairly dark room could possibly cause. If he can't track the light properly, his eye will jerk around, that is one of the tests.

All kinds of people can take blood pressure.

Police officers have fairly comprehensive training. They also have training to determine when there could be a medical problem. When they encounter a medical problem, they send the person involved to a hospital as quickly as possible so that real physicians can determine what's going on.

These tests are not intrusive. There is nothing I know about the tests in this program that could endanger anyone's health.

[The Chair, Conservative, Art Hanger]

Mr. Petit.

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

Could I ask one last question?

[The Chair, Conservative, Art Hanger]

I'll give you time for another question, but you're over.

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

Thank you.

As you know, at present, when someone has a serious accident, we take him to the hospital and are required to obtain a warrant if there is any suspicion, so that we can ask him for a blood sample to determine blood alcohol levels and other factors.

If someone has an accident and we determine there is no alcohol in the blood, will the warrant also cover drugs and all illegal substances? Do you believe everything is properly covered?

[Greg Yost]

We can already ask for a warrant to identify drugs and alcohol. The problem lies in the fact that we normally do not have many grounds on which to request that warrant. Generally, we use a warrant to screen for alcohol, but that is already there. We do not need all these tests when we have other grounds we can use to convince the justice of the peace to give us the warrant we need.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

I have a question for Corporal Graham. You spoke of a clinical analysis. Who really conducts that clinical evaluation?

[Cpl Evan Graham]

That evaluation is done by the police officer, the drug recognition expert, the trained police officer.

[The Chair, Conservative, Art Hanger]

So on reasonable probable grounds, an individual is stopped on the highway in a remote area, and it could be in the evening. He has to conduct a clinical examination on the individual. He may even have given him--or been refused--a roadside test, and then he would have to transport that individual to a detachment somewhere, I assume.

[Cpl Evan Graham]

That's correct.

[The Chair, Conservative, Art Hanger]

Then he goes through a process of evaluating how this individual reacts under different forms of light. Every police officer on the street will have to be trained quite thoroughly. I can see this as a real defence lawyer's boon, in a way, questioning, how long did you test him or how bright was the light? I can see a myriad of things coming into play here. What is going to be standard practice and acceptable?

[Cpl Evan Graham]

The evaluation is done in a controlled environment. The vast majority of the police officers working in Canada will never be trained as drug recognition experts. Again, it's a specialized field.

What we do for training is attach an eight-hour block to the standardized field sobriety test course. They're given the general symptomology to be looking for. What they record roadside will in all likelihood be totally different from what I'd see if they brought them back to the office for me to evaluate. Most drugs are short-lived. Some are longer-acting. Some react slowly. Some start their effects very quickly.

So we fully expect that during the evaluation, things will be different from what they saw roadside. Because of that, it's a totality of the evidence right from the time they dealt with the person, from when they walked up to the car, to the conclusion of the evaluation.

[The Chair, Conservative, Art Hanger]

But the average police officer is the individual who will have to carry this initiative through from beginning to end.

[Cpl Evan Graham]

They'd only carry it insofar as they'd be bringing them to the drug recognition expert, the same as they would for a breath test. They get them roadside. They make the determination that a person is impaired by alcohol. They bring them back and put them before an expert. The expert is the evidentiary breath technician.

For the drugs, it's really no different; they observe something that's not right and they take them to an expert to be evaluated.

[The Chair, Conservative, Art Hanger]

You're saying that the clinical test, then, is actually done by the drug evaluation expert, not by the police officer.

[Cpl Evan Graham]

That's correct. The evaluator is also a police officer, but he or she is the person who does the evaluation in its entirety. The only things done roadside are the three divided attention tests that comprise the standardized field sobriety test. As for the actual looking for drug impairment, that's done at the office by a trained evaluator.

[The Chair, Conservative, Art Hanger]

Does it not leave open some question here? If an individual refuses to take a roadside test and he's brought into the office and does not take a breathalyzer, the officer and the drug evaluation expert now have to rely strictly on what--their own experience, basically?