Justice Committee on June 5th, 2007

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order. This being Tuesday, June 5, 2007, the orders of the day, as noted, bring about the discussion on Bill C-32, an act to amend the Criminal Code on impaired driving and to make consequential amendments to other acts.

We have a number of witnesses appearing before the committee. I will just go down the list. We will begin with the Barreau du Québec and Mr. Louis Belleau, who is the president of the committee on criminal law of the Barreau du Québec, and Nicole Dufour, a lawyer with research and legislation services. From the Canada Safety Council, we have Mr. Raynald Marchand, general manager of programs; Emile Therien, past president; Ethel Archard, consultant. As an individual, we have Line Beauchesne, associate professor, Department of Criminology, University of Ottawa. From the Criminal Lawyers' Association, we have Paul Burstein, director; and Jonathan Rosenthal, representative.

Welcome, all.

I will begin with the Barreau du Québec, please.

Is it Mr. Belleau?

[Louis Belleau, President of the Committee on Criminal Law of the Barreau du Québec]

Maître Dufour will present the Barreau's position, and I will be available to answer questions later.

[The Chair, Conservative, Art Hanger]

Okay.

Ms. Dufour.

[Nicole Dufour, Lawyer, Research and Legislation Service, Barreau du Québec]

Good morning. As you say, I am responsible for coordinating the work of the Criminal Law Committee of the Quebec Bar. That Committee is made up equally of members who are defence lawyers and Crown attorneys. Academia is also represented on the Committee. With me today is Mr. Belleau, who will answer questions, as appropriate.

To begin with, I would like to summarize the Quebec Bar's position on Bill C-32. What we can say, right from the start, is that we agree with the goal being pursued through this bill, which is to establish rules to ensure effective action against impaired driving under the influence of drugs. However, we do have some concerns that we would like to make you aware of.

This bill creates a new offence—that is, the operation or the fact of having the care or control of a motor vehicle while in possession of a controlled substance, within the meaning of the Controlled Drugs and Substances Act. The Quebec Bar believes that there is no rational link between the intent of the bill and the offence of possession. In the absence of a breach of the driver's obligation, there should be no such offence. The offence of possession is, in fact, already provided for under the Controlled Drugs and Substances Act.

Furthermore, the penalties that are suggested for a first conviction on the new offence, which is an order prohibiting the offender from operating a motor vehicle for a period of at least a year, with no access to mitigation measures, appears to us to be unduly harsh, considering the absence of a logical connection between the offence of possession of a controlled substance and the prohibition to operate a motor vehicle.

We agree with changes that would allow a peace officer to make a video recording of a performance of the physical coordination tests. However, we would like there to be an obligation, on the part of peace officers, to systematically make such video recordings, in order that the best possible evidence be available. This would probably limit the nature and scope of legal debate on these issues.

With respect to sentencing, the Quebec Bar advocates the free exercise of judicial discretion by the court in order to ensure that punishment is just, by balancing the relevant principles. In that respect, the Quebec Bar cannot support the changes proposed in the bill with respect to the minimum fine for a first offence and the minimum prison term for a subsequent offence.

The effects of imposing a minimum fine will vary based on the financial circumstances of the accused. The Quebec Bar is concerned about the negative repercussions of such a penalty on the offender's family. Indeed, imposing a prison term of no less than 90 days for a third offence would mean that the sentence could not be served intermittently. That could have unfortunate consequences, such as the loss of employment, for example, and would clearly affect other members of the accused's family.

The bill also provides that, in the absence of evidence tending to show both that the approved instrument malfunctioned or was used incorrectly, or that, when the analysis was performed, the concentration of alcohol in the accused's blood would not have exceeded 80 milligrams of alcohol per 100 millilitres of blood, evidence corresponding to the results of the analysis will constitute conclusive proof of the accused's blood alcohol level at the time the offence was alleged to have been committed.

The Quebec Bar is concerned about this double requirement of evidence and its consequences. We believe that conclusive proof as to the malfunction or improper use of the equipment should suffice to reject the test results. Otherwise, we believe this provision is likely to violate the presumption of innocence.

The bill also proposes to make it impossible to adduce direct evidence of a blood alcohol level of less than 0.08 with a view to challenging the instrument results. We are concerned that this could lead to wrongful convictions. As an illustration, we would cite the example of an accused who, after failing such a test, decided on his own to go to a health clinic for the purposes of determining, through a blood test, what his blood alcohol level was. If the results of that test showed the level to be under the limit, that person would not have an opportunity to adduce that direct evidence if he or she had been unable to prove that the instrument malfunctioned or was operated improperly.

The Quebec Bar is also concerned about the difficulties an accused could encounter when attempting to demonstrate that the instrument malfunctioned or was used incorrectly. What exactly would he or she have access to?

Those are our comments.

[The Chair, Conservative, Art Hanger]

Have you completed your presentation?

[Nicole Dufour]

Yes.

[The Chair, Conservative, Art Hanger]

Thank you very much.

From the Canada Safety Council, sir, the floor is yours.

[Emile Therien, Past President, Canada Safety Council]

Thank you very much, Mr. Chair.

I'd like to acknowledge Diane Diotte and her staff for facilitating our appearance here today. Thank you very much.

We have brief remarks, and I think all of you have received our submission.

Canadians are very concerned about young drivers impaired by alcohol or drugs and older drivers impaired by prescription medications. The Canada Safety Council considers the issue of drug-impaired driving to be a very high priority, and we agree that government action is needed. It is imperative.

The former and current governments proposed the amendments in Bill C-32 to strengthen the enforcement of drug-impaired driving offences in response to this high level of public concern. Criminal legislation must be airtight, because unlike provincial traffic regulations, the accused is innocent unless proven guilty. A very high level of proof is required because for the accused the stakes are very high. Anyone convicted of a criminal offence will carry that record for life. The chances are therefore very high that such legislation will be challenged and loopholes found.

Drug-impaired driving is a very complex issue. Until the enormous problems identified in the Canada Safety Council's submissions are resolved, criminal legislation is premature. That is why we urge the government to put Bill C-32 on hold, until it can meet the rigorous requirements of a criminal court. There are other ways to respond to this serious problem, and we have recommended that these be pursued. The council agrees that immediate precautionary measures are in order, but the priority must be to protect the public from drug-impaired drivers, rather than simply impose criminal sanctions after the fact.

This committee is no doubt aware of Canada's strategy to reduce impaired driving, which is known by the acronym STRID. That strategy started in 1991 and has the full support of all provinces and territories, as well as Transport Canada. Justice Canada must not take unilateral action on impaired driving.

Canada's impaired driving laws are among the strictest in the world. Combined with leadership from STRID, this has led to significant progress in the fight against impaired driving. Between 1995 and 2000, road fatalities involving a driver who had been drinking went down by one third. That said, impaired driving remains a safety problem of the highest priority in this country.

In 2004, the latest year for which comprehensive statistics are available, road crashes involving a driver who had been drinking killed 815 people. Consistently about half of all impaired driving fatalities are the impaired drivers themselves—very definitely not innocent victims.

The absence of national statistics on motor vehicle fatalities or crashes involving drug impairment should be of concern. Good laws are not driven by feelings and opinion polls, but are based on hard facts, credible statistics, and solid research.

l expect that you have all looked at our submission, so l would like to review some of our recommendations.

It should be obvious that we believe Bill C-32 is premature, and we strongly recommend that it be put on hold for the necessary groundwork to be completed. Indeed, the government's priority should be to provide resources, and these include adequate funding to ensure that future legislation has a solid scientific basis and technological support, to identify drugs that can impair driving ability, and to establish defensible impairment levels for each drug and specify the measurement methods.

We have pointed out that more and more impaired driving cases are being pleaded outside the Criminal Code. The government must consider the reasons behind this trend before proceeding with further criminal legislation.

Administrative licence suspensions have proven effective in the fight against impaired driving. Under traffic codes, most Canadian jurisdictions impose 12- to 24-hour suspensions on drivers whose blood alcohol concentration is below the criminal limit. These suspensions remove potentially dangerous drivers from the road. They provide a stern and effective warning, without the punitive lifetime consequences of a criminal record and a costly criminal court case.

The Canada Safety Council has encouraged provincial and territorial governments to impose administrative licence suspensions on drivers who show impairment by substances other than alcohol. That is why we recommend that federal resources should redirect moneys earmarked for the implementation of this bill to help provinces and territories deal with drug-impaired driving under their traffic codes.

One of our key recommendations is that Justice Canada should collaborate with STRID to coordinate any amendments to the Criminal Code with respect to drug-impaired driving. I stress that it could be counterproductive for Justice Canada to enact impaired driving legislation that interferes with the national strategy and counters measures now in place.

Proponents of Bill C-32 say a driver impaired by cannabis poses as much of a risk as a driver who is above the legal limit with alcohol. First of all, the bill is not restricted to cannabis. On top of that, there is no scientific basis to establish impairment by cannabis, or for that matter, any drug.

It should also be noted that the evidence clearly shows alcohol carries a higher risk than cannabis. The underlying problem with this illicit drug is that it is an illegal substance. The focus should be on the fact that so many Canadians are using it at all. Its negative health and safety effects extend far beyond impairment while driving. A national strategy is needed to reduce cannabis use, with an emphasis on youth and habitual users. In our opinion, this is far more urgent than criminal legislation on drug-impaired driving at this time.

It may be counter-intuitive, but there is little evidence that drivers who have used cannabis on its own are more likely to cause crashes than drug-free drivers. It does negatively impact driving ability, although in very different ways from alcohol. THC, the active component in cannabis, can be detected in the body for up to four weeks, but its impairing effects do not last. Relatively few road fatalities test positive for THC alone. Most often it is found in combination with alcohol, a combination that drastically increases crash risk.

Roadside breathalyzers allow police to detect and measure the presence of alcohol. At present there is, unfortunately, no reliable, non-intrusive roadside method to test for cannabis. Even if such a test were available, a defensible limit must be set at which a cannabis-using driver is criminally impaired. Before criminal legislation can be implemented, defensible criteria must be set for THC impairment, alone and also in combination with alcohol, and the government must approve detection tools for use by trained police officers. This process alone could take years, but without it the law will not be enforceable.

l'd like to move on to medications, which are also covered in Bill C-32.

Canadians over age 65 take an average of nine medications daily, including prescription, over-the-counter, and herbal. Medications can have a positive or negative effect on driving ability. Some people, such as epileptics, may not be able to drive at all without medication. Physicians prescribe benzodiazepines to combat anxiety and insomnia among seniors. They can have side effects such as drowsiness, impaired motor function, and confusion, and have been implicated in many collisions.

Seniors taking certain painkillers may experience sedation and mild impairment. Even over-the-counter drugs can reduce driving ability. Antihistamines can cause drowsiness and poor concentration. Tranquilizers or cold remedies such as cold tablets, cough syrup, and sleeping pills can reduce driving ability. Combinations of medications can also produce unexpected side effects and bad reactions. Combining alcohol with medications is very risky, especially for seniors. With age, tolerance for alcohol decreases steadily, and the body does process it less efficiently.

Currently about 22,000 human drugs are available in this country. To identify those that can impair driving—alone or in combination with other substances—and then set defensible criteria for each and approve measurement tools just poses a huge challenge.

With Canada's aging population, legal medications present a health and safety issue that extends beyond driving and must be addressed. The council views this as a very important health and safety issue, but not a criminal issue.

Other strategies, some of which are already in place, would be far more effective and appropriate than using the Criminal Code to prevent driving under the influence of potentially impairing medications. We have therefore recommended that the federal government develop and fund a strategy, including public education, to address concerns associated with impairment by medication. Justice Canada must assess the rationale for and potential consequences of using the Criminal Code as a legislative tool to address medication-related impairment. This issue, in our view, is a better fit with Health Canada's mandate.

To a lesser extent, illegal use of prescription medications such as those with psychotropic properties, as well as the use of illicit drugs such as cocaine, are factors in impaired driving. Targeting cannabis could turn users to other, even more harmful substances.

In summary, we know politicians are under pressure to do something about the perceived increase in drug-impaired driving. However, the proposed criminal legislation is likely to be ineffective, and even counterproductive. We urge you not to risk failure. Address the problem in collaboration with the appropriate agencies outside the Criminal Code at this time.

Thank you very much.

[The Chair, Conservative, Art Hanger]

Thank you very much, Mr. Therien.

Next, as an individual, is Ms. Beauchesne.

[Prof. Line Beauchesne, Associate Professor, Department of Criminology, University of Ottawa, As an Individual]

Good morning. Thank you for your invitation.

In any piece of legislation, before being able to say how relevant the measures being proposed actually are, one first needs to consider the goal being pursued and look at the problems to be resolved. In this case, the purported goal is to improve road safety by preventing people who are impaired from driving a vehicle, as they may pose a danger to themselves or to others. However, a bill hoping to attain that objective must successfully resolve the following issues.

The first major issue, which was raised during parliamentary debates, is that thus far, activity has, for all intents and purposes, focussed on alcohol, in terms of both prevention and our legal system, even though there are many other factors that can give rise to impaired driving, be they fatigue, medication or other reasons.

The second issue relates to repeat offenders, who seem to be relatively unaffected by prevention campaigns. Repeat offenders are few in number, but are responsible for the vast majority of accidents. According to the research, these repeat offenders are clearly dependent on drugs, the main drug being alcohol, for most of them. Alcohol is a drug, even though that seems to be somewhat forgotten in some of the debate.

This bill must make it possible to determine all the causes of impaired driving and to better target repeat offenders. However, it succeeds in neither case.

What are the issues clearly indicating that this bill misses the target, which is to improve road safety by preventing impaired driving?

The first issue is that the bill is practically unenforceable from a financial standpoint. In fact, a number of parliamentarians have pointed to that specific problem and the debate on Bill C-16 — the predecessor to Bill C-32 — clearly demonstrated that. The resources that will be needed to implement this bill across the country are in the millions of dollars. Even the addition of 1 000 police officers, as one parliamentarian has suggested, would in no way resolve the problem in rural areas. The process created here is cumbersome and practically unenforceable.

As well, enforcing this legislation will be costly. In a general sense, there is the cost of training DREs and police officers. However, the regular renewal of portable detection equipment, validation of laboratory drug tests and judicial procedures are also extremely costly. We are talking here about a middle class that will defend itself. There is a whole maze of possibilities. We already know what the alcohol-related side of this costs in terms of legal proceedings. This opens a whole new window of opportunity that will create very costly legal tangles.

The second issue, as was already mentioned, is that traces of drugs in the body are not clear proof that a person was impaired. They simply indicate that this individual used drugs. If, for example, a person used marijuana Friday evening and, on the following Friday, is given a drug test, the test will not be about determining whether that person was impaired because of marijuana. The test would only tell us that in the days or weeks prior to that, the individual in question had used marijuana.

The kind of equipment that authorities claim to be able to use is relatively discriminatory. It has been proven scientifically that it cannot be said that a person is impaired simply because traces of drugs have been detected in that individual's body.

The third issue is that enforcement of this legislation is likely to be extremely discriminatory. As Mr. Therien pointed out, there are 22,000 different types of medication and a whole range of drugs. It is quite clear that the portable equipment used nowadays focusses on certain types of drugs that are used by certain kinds of people.

In that respect, one may wonder whether the real objective is to catch people who use illegal drugs, or to include all the possible causes of impaired driving, whatever drug has been used. During the debate on Bill C-16, some pointed out that if medication were involved, that person would be referred to a physician or to someone other than the police.

The message of prevention that this bill sends is that there are good and bad reasons to drive while impaired. Let me give you an example.

Supposing an individual worked an unexpected shift and has not slept for 30 hours. That person is practically asleep, but still decides to his or her car and ends up killing someone. Are we going to say that it was okay for that individual to have killed someone, simply because he or she had worked too many hours? I don't think that's the kind of message we are trying to convey. We may also be talking about someone 79 years old, who is told by his daughter that his medication puts him to sleep and that he really should not drive a car, but who decides to drive his car anyway, and ends up killing someone. Are we going to tell such individuals that they have the right to kill someone, simply because they are elderly and they decided to drive their car?

The message of prevention that this bill sends is not clear at all. In fact, it seems to be more about the fight against illicit drugs than it does about preventing impaired driving. The millions of dollars that will be invested for no purpose in this bill are millions of dollars that could be invested in prevention.

So, what should be done to improve the current situation as regards impaired driving and move in a different direction in relation to the two issues that I have raised?

It is quite clear that prevention should focus on broadening advertising aimed at specific client groups, so as to include medications considered to impair the ability to drive. Indeed, France has done a great deal of work in that area. Be it on television or through other means, we have to stop saying that alcohol is the only thing that results in impairment, and encourage people to drive only when they are fit to drive.

We are not talking about reinventing the wheel here. I am not referring to sobriety tests, because the issue is not only about having used specific drugs; we are also talking about roadside reflex tests that are videotaped, tests which would now be mandatory. Those tests would make it possible to determine whether an individual is able to drive. Whatever the reason, if that person is not able to drive, he or she would be taken off the road.

We do not need to know whether such individuals use drugs, whether they were tired, whether they were going home or whether they were coming out of a bar. They were tested and filmed and proven not to have the necessary reflexes to drive properly. We are not only seeking people who use drugs through this exercise. The important thing is to remember that we need to take people off the road who are driving impaired.

One of the basic concepts in criminology is that an enforcement mechanism that is simpler and is used more often — and people have the sense that it is being enforced — is preferable to a complex and costly mechanism that is rarely enforced, and which gives people the feeling that they will not get caught because the authorities will hesitate to move in that direction. They have the feeling they will not be targeted because this is only aimed at people who use illegal drugs.

It is much easier to train police officers to carry out a basic reflex test — which involves asking people to walk in a straight line or lift their legs, while being filmed, than it is to train DREs, at a cost of many millions of dollars, whose job it will be to determine, using an extremely complex procedure, whether people seem to have used drugs.

France has done more in a year and a half to reduce speeds on the highway by installing cameras that regularly take pictures of drivers. Highway accidents have decreased by a quarter or a third. I will soon be receiving all the details with respect to the assessments that have been carried out. This particular program involves demerit points and fines, which have a much greater impact than if 300,000 additional police officers had been assigned to patrol the roads in France.

As a result, the more complex the procedures, the less likely it is that they will be enforced and that they will be highly discriminatory.

As regards the second issue—that is, repeat offenders—studies show that the vast majority of them have an alcohol dependency problem. People like them could have their licences taken away. However, what is needed is a much better organized national register to keep track of them, so that their licences can be taken away as long as there are not adequate guarantees that their problem has been resolved. The real issue here is treatment.

When you read the testimony of highway accident victims, you realize that they often lacked support following their accident. So, perhaps we should be spending more of these millions of dollars on support for highway traffic accident victims.

In closing, I would just like to say that it is time to give police officers the means they require to ensure more effective prevention of impaired driving, whatever the cause. Police action will be successful if the procedure is simpler and includes demerit points, higher insurance premiums and a proper offences registry. Such measures, which are far less costly than those presented here, would also allow for the introduction of a series of additional measures aimed at prevention and at assisting highway traffic accident victims.

Unfortunately, this bill does not move in that direction and even risks reducing police effectiveness in this area, at the expense of the many individuals who are victims of traffic accidents.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Beauchesne.

Now we will go to the Criminal Lawyers' Association.

Will you be presenting, Mr. Burstein?

[Paul Burstein, Director, Criminal Lawyers' Association]

We will both present, Mr. Chair.

[The Chair, Conservative, Art Hanger]

That's fine.

[Paul Burstein]

Once again the Criminal Lawyers' Association is honoured to have the opportunity of appearing before this committee to help with the very important work that it does.

With me today is Jonathan Rosenthal. He is a lawyer of almost 20 years' experience in defending drinking-and-driving cases. He's lectured to law students, lawyers, and judges on the topic, and I'll be asking him to address you on the bill's amendments relating specifically to the investigation and prosecution of drinking and driving.

I should say I sort of lured him here under false pretences. I promised him we'd see the Senators, and we haven't yet been to the Senate chamber to have a gander. So I promised him we'll go after we're finished here.

My name is Paul Burstein. I'm here to address you on the new drug-impaired driving provisions. I'm not only a criminal lawyer; I also am an adjunct professor at Osgoode Hall Law School and Queen's University. I've been a director of the CLA for ten years, and I've been called upon on a number of prior occasions to testify before this committee on issues relating to marijuana and cannabis. I should say I was also counsel on the trilogy of cases that wound their way up to the Supreme Court of Canada dealing with the decriminalization of marijuana, as well as many of the medical-marijuana cases. I only say that because while I don't purport to be a scientist, I certainly consider myself to be quite familiar with the social science concerning marijuana and its uses and abuses.

Let me begin by emphasizing, if I could, that when you decide what, if anything, to do about marijuana, you must be very careful in dealing with “studies”. As many say about statistical analyses, “figures lie and liars figure”. The report of the Senate Special Committee on Illegal Drugs identified the weaknesses of many of the studies that concerned the use of marijuana and its symptoms and manifestations. They noted that “there are divergent opinions about the interpretation of studies and their meaning in connection with the specific effects of marijuana on driving”.

I only say that because when police groups or any other proponents of the bill who come before you cite numbers and statistics, I just urge you to be very cautious before you accept the data. The most objective and complete summary of the data, I believe, at least up until 2002, was found in the Senate report, and I urge you to go to that. Indeed, the Senate report concluded, after reviewing essentially all the studies current to that date, that findings show that cannabis alone does not increase the likelihood of responsibility in an accident. The findings definitely confirm the significant risk of alcohol, but generally fail to demonstrate that there is an effect of cannabis alone on the risk of being responsible for a fatal accident or an accident involving serious injury.

It's not to say that it's a good idea to drive after consuming marijuana. Of course it's not. But the question is whether there's enough there to warrant invocation of the blunt instrument of the criminal law. Also, I say to you that when proponents come here and try to tug at your heartstrings through reference to families of victims of fatal accidents, it's essential that you keep in mind two things. As you've already heard some of my colleagues here say, these provisions will do little or nothing to prevent the small percentage of the population who do drive after consuming marijuana from continuing to drive after smoking marijuana. You'd be fooling yourselves to think otherwise. Second, as you've also heard—and I certainly endorse the comments of Mr. Therien and Professor Beauchesne—there are other and much better non-criminal ways of preventing and reducing drug-impaired driving.

As I'm sure members of this committee already know, the Senate committee has already plowed much of the ground for you. Indeed, having considered the social science evidence, the Senate committee concluded that “it would appear that it would be highly desirable to adopt the DEC”—that's the drug enforcement classification—“and train police officers in drug recognition”.

However, I would say there are two reasons why that recommendation does not justify this legislation, at least at this time. First of all, the Senate recommendation about DREs, or drug recognition evaluators, was part of a bigger package that recommended decriminalization of the personal use of marijuana, which of course was assumed to likely increase not only the use of marijuana but the likelihood that people might drive after consumption. That recommendation--to decriminalize the personal use of marijuana--was predicated on the Senate committee as well as the committee of this House recognizing that the criminal prohibition on marijuana caused disproportionate harm to people by virtue of the criminal prohibition compared to the potential harm that it might prevent. So this is only going to make it worse. It's going in the wrong direction.

On proposed subsection 253.1(1), the driving-while-in-possession offence, there's nothing about that offence that prevents harm. There's simply no scientific or logical basis to conclude that the mere possession of drugs increases the risks associated with impaired driving. If that were the case, why has no province in this country imposed licence suspension as a consequence of a drug conviction? No country in the world does that. Remember, according to the statistics that are presented to you as to why something needs to be done, this offence, proposed section 253.1, will have the most effect on young Canadians, because it would seem that mostly young Canadians are engaging in this behaviour. There's already, though, according to the Senate and the House committee reports, a disproportionate impact of the criminal prohibition of marijuana on young persons. This is going to make it ten times worse.

The second reason why we say the Senate recommendation does not support this legislation is because unfortunately the reality of the screening testing mechanisms does not yet meet the hopes and expectations. I don't believe the Senate committee heard evidence about what the current state of affairs is. There's some reference to studies there, but Dr. Beirness of the Traffic Injury Research Foundation testified before this committee on Bill C-16 and he recognized that the testing procedures were far less than perfect. In the States, even, they're at best reliable maybe 80% to 90% of the time. But what does that mean? It means one in five or one in ten most likely young Canadians, on the strength of an unreliable test, will wrongly be taken into police custody to the hospital and forced, under penalty of criminal prosecution, to give a blood sample for no good reason. That, in our view, is an undue cost.

Let me wrap up my section by just saying there are three significant costs to the criminal justice system you've already heard some allusion to. First is the cost of training the police. There are much better uses of scarce police resources than training them to do this. Bear in mind, it's not like an instrument where you can buy it once. Even though police officers may advance in their careers from front-line officer to detective to administration, you have to keep re-training those police officers. A machine, at least, stays in the police detachment as police progress through the system. It's very expensive. Second, even if the DRE provides grounds to take bodily samples, the bodily sample analysis is itself a big question mark. What level of drug in the blood or urine suggests impairment? There is no clear science on that, which means, the third problem, the cost of litigating these, as you've already heard, will be very expensive in every one of these cases because this is very soft science. The length of trial will double or triple, as my colleague Mr. Rosenthal is about to tell you.

I conclude by telling you that we strongly oppose certainly all the DRE amendments, especially the offence provision, proposed section 253.1. Deterrence doesn't work. In fact, if it did, why do you need it, because there's already a criminal offence to possess marijuana, so you know that doesn't work. It will significantly burden the criminal justice system. Right now there are probably no trials in the system--or very few--on defences to possession of marijuana because most of them are diverted or people plead guilty because of the somewhat benign consequences. No person will agree to plead guilty to possession of marijuana while driving a car because of the devastating consequences.

Finally, as for the other amendments, no one wants drivers on the road who are stoned, as Professor Beauchesne says, nor do we want them drowsy or unskilled or on their cell phones. These amendments will not have a net reduction on societal harm, but rather it will increase it. We would rather see you spend more money equipping police to get guns off the street than getting marijuana drivers off the street.

Mr. Rosenthal.

[The Chair, Conservative, Art Hanger]

Mr. Rosenthal, please.

[Jonathan Rosenthal, Representative, Criminal Lawyers' Association]

I will be addressing the amendments in paragraphs 258(1)(c), (d), (d.01), and (d.1) of the code. These are dealing with what is commonly known as evidence to the contrary.

The proposed amendment will require an accused person to show either machine malfunction or improper operation to avoid conviction for an over-80-milligram offence. If this amendment is passed and it survives charter scrutiny and charter litigation, it will have numerous, far-reaching implications, and in addition there will be significant cost, both in time and money, in regard to over-80 litigation.

This is a disturbing and unprecedented provision in criminal law. This is a provision that really creates an unrebuttable presumption. Since blood alcohol measures cannot be measured at the time of driving—you can't stick a needle into the arm of someone who's driving—there's a presumption that's been created known as the “relating back provision” that is really a shortcut for the crown to prove that someone is over-80 at the time.

However, this proposed amendment puts a significant and somewhat impossible burden on persons who may be factually innocent. When I'm talking about factual innocence, I'm not talking about legal innocence, not talking about raising a reasonable doubt, but talking about people whose actual blood alcohol levels at the time of the offence are under the legal limit, people who have done nothing wrong, and people who are not at risk to harm others or themselves.

Under this legislation, people will be convicted and will suffer the stigma of a criminal record and all the consequences of a criminal conviction—people who are as a matter of fact legally and factually innocent.

This amendment is premised on the supposition that the Intoxilyzer 5000C is an infallible machine. No machine is infallible. In fact, Intoxilyzers do not measure blood alcohol content. What they do is estimate blood alcohol content based on a blood-breath ratio. These are fast machines. They're machines that give an instantaneous reading. They're machines that are much quicker than machines used in hospitals to actually analyze blood. They're machines that are much cheaper than those used in hospitals to actually analyze blood.

I ask myself, and you may want to ask yourselves, if these machines are really that accurate and that infallible, why aren't all of the hospitals using these Intoxilyzers instead of expensive, much more time-consuming blood machines?

Just improving an instrument does not make it infallible. Just being approved by our alcohol test standards committee does not make an instrument infallible. We don't have to look any further than the experience that I know occurred in Ontario.

There was a machine known as the ALERT model J3A. It was an approved screening device, it went through all the tests, it was approved under the Criminal Code, it was designated. It was used for about 15 years, until someone realized that in fact it wasn't an approved instrument, and it was recalled.

This proposed amendment will entirely take away from the trier of fact, whether it be a judge or a jury, the ability to determine guilt or innocence. Criminal trials, if you bring them down to a simple level, are really simple: the crown and the police get up and say he did it; the accused gets up and gives the reasons why he did it. You have a judge decide. That's what judges do.

This amendment entirely takes away that possibility, unless you can show that the machine was either being improperly operated or was malfunctioning, and if you can't show that, quite frankly, you're guilty.

This is an extreme amendment. There is no other provision in the Criminal Code that has this sort of requirement, this sort of what I call an erosion of the presumption of innocence.

I just want to give you a few examples where you may see people who are legally innocent—their blood alcohol level as a matter of fact is below the legal limit—being convicted.

My friend earlier gave the example about someone going to a private health clinic for a blood test. Quite often, breath samples are taken at the hospital at the same time as blood samples are taken. If there is a difference between the two—in other words, the blood sample is below the legal limit but the breath sample is above the legal limit—in anyone's mind that would be a reasonable doubt, or even further, the person is probably innocent. Under this legislation, too bad. Unless the accused can show a problem with the machine or operation, he's guilty.

You may have a situation where a judge doesn't find that someone's evidence raises a reasonable doubt. They go farther and say, “I believe Mr. Jones' evidence. I believe all his witnesses.” It doesn't matter. The judge, notwithstanding that, under this legislation is going to be compelled to find that person guilty.

Let me give you another example. Someone drives home, they park their car, they put it in the garage, they lock the door, and they have a few drinks. For some reason the police show up and breath samples are taken. There's no doubt that the person had nothing to drink beforehand. Under this legislation that person will be found guilty, unless they can show a number of things.

I suggest to you that if this legislation is passed, we're heading down a very dangerous, slippery, and sliding slope.

Let's apply the ideology of this legislation to other cases. Let's say we apply it to a DNA case. We all know DNA is infallible. Could you imagine if the Criminal Code were amended to say in a sexual assault case that if someone's DNA is found there, they can't raise the defence that they weren't there. They can't. They could show you a plane ticket. They could show you a video that they were in another country. No one would support that type of legislation.

It's the same thing with the fingerprint. We all know fingerprints are infallible. What happens if the legislation were amended so that if your fingerprint is found on a document you're deemed to have created that document? You have no right to defend that. That's what judges do. They take a look at the facts and they determine who they believe.

This is the recipe for a wrongful conviction. There will be wrongful convictions.

I can tell you, as a lawyer who specializes in defending drinking-and-driving cases--and there are a number of us--that if this legislation is passed, we're not going to lie down, wave the white flag, and say you've got us. It's just not going to happen. What will happen is that there will be significant litigation to attack both the operation and the functioning of those machines. Judges are going to be ordering--and I can tell you this will happen--production of maintenance logs, which they're not doing now. They're going to be ordering production of training manuals. There are going to be source code litigations on the manufacturers themselves, which are third-party applications. You're going to have lengthier trials.

There's an amendment here dealing with certificates so the breath technicians don't have to come to court. You can forget that. I can tell you that we're going to insist on it now. We're entitled to cross-examine the breath technician on every single case.

You're going to see subpoenas, which we see in the States, for the actual breath machines to be brought to court for independent analysis.

In closing, let me just leave you with this. If this amendment is passed, I'll grant you this: you're certainly going to convict a lot more people who are guilty, but you're going to erode presumption of innocence, and you're also going to convict a lot of innocent people. In due course someone is going to have to clean up the mess of these wrongful convictions.

You also had better prepare to allocate a greater number of resources. Anyone who practises criminal law in a jurisdiction where there's a backlog--whether it's a crown attorney, a defence lawyer, or a judge--will tell you that the source of the backlog is litigation over drinking-and-driving offences. The harder the penalties are, the more people will litigate.

If you want to pass these types of amendments that are going to lengthen trials, you'd better build a bunch more courthouses. You'd better hire yourself a bunch more judges to sit in these courtrooms, and while you're at it, throw in a bunch more crown attorneys.

More importantly, and lastly, I can tell you it will make CMI, the manufacturer of the Intoxilyzer 5000C, because you'll need to order a lot of those machines. A lot of those machines are going to be stuck in exhibit rooms and courtrooms, as opposed to police detachments.

Thank you.

[The Chair, Conservative, Art Hanger]

Was that your conclusion?

[Jonathan Rosenthal]

That was my conclusion.

[The Chair, Conservative, Art Hanger]

Okay.

Thank you for your very passionate intervention, Mr. Rosenthal. It brings to mind a lot of questions, but they're not for me to ask right now.

Mr. Lee.

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

Thank you.

We take note of the warning of robust engagement from the Criminal Lawyers' Association.

In a 30-second preamble, I want to note my fascination with the current government's apparent obsession with sex and drugs. There's another bill in front of the House of Commons that talks about restricting work permits. It's an amendment to the Immigration Act. The government's own press releases explicitly refer to strippers and exotic dancers. I'm curious about that, and we'll see how that works out.

In this case, we're dealing with drugs. I have two focuses, and I'd like to direct a question to any of the lawyers at the table--I think they're almost all lawyers. The first one is this. Section 253.1, which has been referred to here, only deals with the issue of possession; it doesn't deal with impairment. It covers the same territory as the Controlled Drugs and Substances Act.

It occurred to me that about five years ago I was taking a flight, Mr. Chairman, and my spouse said to take a sleeping pill in case I wanted to sleep on the flight. I still have it. I never used it. I never took it out, and it's buried in the bottom of my wallet. I think if I tried to get it out, it would rip my wallet. It's still here, it's right there. I think it's a schedule 4 drug, and it just occurred to me that if we pass this section, I would be committing a criminal offence as soon as I got into my car. So is it ill-considered in this bill to include schedule 4 drugs in the legislation? Should we just walk from that, fix it? It's a mistake the government didn't notice; they didn't think about it.

Schedule 4 drugs include steroids, and I can't see the connection between being in possession of a steroid, or having a steroid in your body, and being impaired. There's no connection, from a public policy point of view at least.

So let me just put that to the first one who puts up their hand, Mr. Chairman. I would appreciate the analysis of Ms. Beauchesne, or from the Criminal Lawyers' Association.

[The Chair, Conservative, Art Hanger]

Ms. Beauchesne, would you like to start, and we'll go to the Criminal Lawyers' Association after?

[Prof. Line Beauchesne]

You're right. This bill seems to focus more on the war against drugs than on combating impaired driving. There is more of an inclination here to go back to the approach used during prohibition than to reflect on what would actually bring down the number of impaired drivers.

As we mentioned, a lot of innocent people run the risk of being caught in this net without being impaired, and will, rightly, challenge the charges. The results have been fairly well laid out by the lawyers. Unless the government already decided it will spend the money on this whether it's helpful or not, because it has money to waste, I believe there is a need to sit back down and look at the whole issue of impaired driving.

[The Chair, Conservative, Art Hanger]

Mr. Belleau.

[Louis Belleau]

Your comments are extremely relevant. The risk that this bill is attempting to prevent, by regulating or prohibiting the possession of drugs while in a motor vehicle, is the danger caused by individuals who have used drugs and are not able to drive a vehicle responsibly. If that is the goal being pursued, then legislation has to be passed that will enable us to attain that goal. Here, an offence is being created that does not attain that goal.

There is no connection between the fact that you, Mr. Lee, for example, may have a sleeping pill in your wallet while driving a motor vehicle, and the safety of the public in terms of protecting the public from drivers who are under the influence of alcohol or drugs.

If we want to be logical about this and see this as a way of ensuring safety on the roads, we would have to create a corresponding offence for anyone driving a vehicle in which there is a bottle of wine, or for someone coming back from the corner store with a case of beer to watch a hockey game, the logic is exactly the same. It is no more difficult to uncap a bottle of beer or roll a marijuana joint while driving a vehicle.

So, it is quite obvious that there is no rational link between the prohibition and the goal being pursued. It is unconceivable that we would prohibit someone from having a bottle of beer or two in his car, supposedly to ensure safety on the roads.

Indeed, the Quebec Highway Traffic Code prohibits the consumption of alcohol in a vehicle. That applies not only to the driver, but to anyone travelling in the vehicle. However, that prohibition does not include penalties such as suspension of the driver's permit, demerit points or anything else of that nature. There is a fine associated with the commission of that offence, obviously, but there is nothing so radical as what is provided for in the new section 253.1.

There are other comments that should be made with respect to that clause, particularly as regards the sentence. This clause creates a harsher sentence than the one currently provided for under the Controlled Drugs and Substances Act, particularly with respect to cannabis. The penalty for simple possession of cannabis is the same as for the summary offence, reduced by no more than $1,000 and six months in prison, whereas in this case, there is an option to prosecute by indictment with a five-year prison term for an offence that is essentially the same as the one now covered by the Controlled Drugs and Substances Act.

And this clause contains a further absurdity: the penalty of a prohibition on driving. Proposed clause 253.1 provides no opportunity for an offender to use an alcohol-ignition interlock device. Thus, the following situation might arise. A person is stopped with a sleeping pill in his wallet and is sentenced, in theory, to a harsher penalty than someone liable to be charged with an offence under the Controlled Drugs and Substances Act. That person would be prohibited from driving for a year and would not have the option of using an alcohol-ignition interlock device, even though he was perfectly sober and fit to drive at the time he was intercepted. On the other side, you have an individual who could be stopped because he was dead drunk and, three months after the prohibition, could request the use of an alcohol-ignition interlock device with his vehicle.

So, as you can see, there is a complete imbalance between the treatment of these two types of offenders when, in actual fact, the problem we are trying to prevent is the same. In our opinion, this provision, primarily because of the lack of any logical connection between the prohibition and the goal being pursued, which is to ensure road safety, is beyond repair.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Belleau.

Mr. Lee, thank you.

Mr. Burstein, did you have a comment?