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.