Thank you, Mr. Chair, members of committee. My name is Kirk Tousaw, and I'm from the British Columbia Civil Liberties Association. The association is the oldest and most active defender of civil liberties in the country, and we thank you for the opportunity to make some remarks on Bill C-32.
Like my colleague Mr. Brayford, I feel compelled to begin my presentation by saying that the association—as I think is the case for all persons who will testify before this committee—opposes impaired driving for any reason. All too often, persons who speak out against pieces of legislation like Bill C-32 are unfairly characterized as not caring about impaired driving, but that's not the case. We oppose impaired driving. But what the association also opposes is the imposition of new and intrusive laws that will diminish civil liberties, particularly when those laws are not necessary to and will not achieve legislative goals. We believe Bill C-32 is such a piece of legislation.
There are roughly five components to this bill: the increased penalties for impaired driving, including fairly significant increases in mandatory minimum sentences and fines; a new mandatory and highly invasive drug testing process; the creation of the new offence of driving while in possession of a drug; the creation of new offences related to causing injuries while impaired and refusing to provide breath or bodily samples to police after being involved in an accident, whether or not there's an issue of impairment; and restrictions on the right of the accused person to call evidence in his or her defence.
I'm going to focus my remarks on the new offences and the drug testing procedures. I will briefly speak about the evidentiary restrictions related to blood alcohol concentration tests, and there are really three points I'd like to make.
My first point is similar to what Mr. Brayford indicated. These restrictions are based on what I believe to be the faulty assumption that the blood alcohol test is infallible. Two, the evidentiary restrictions are undue restrictions on the charter right to full answer in defence. They will certainly be challenged. They will, in my view, almost certainly be found to violate the charter. And three, I'll just comment on what Mr. Solomon said particularly about British Columbia, where I'm from, and police being reluctant to lay impaired driving charges. He characterized that as a case of police response being frustrated with the process. I don't know if that's true or not, but police are often frustrated by the fact that defendants mount defences and sometimes are acquitted, although I should say they're rarely acquitted.
But another potential reason for why impaired charges are not laid in this country is that impaired driving charges are one of the very few offences in our Criminal Code that carry the imposition of mandatory minimum sentences, and the police are sensitive to and cognizant of this fact.
With respect to the “driving while in possession” offence, the first and primary concern is that, frankly, this offence has nothing whatsoever to do with impaired driving. It appears to be an end-run around the provisions of the Controlled Drugs and Substances Act that already make it illegal to possess drugs.
As the members of this committee I'm sure are aware, the burden of the drug laws in this country fall disproportionately on persons with lower incomes. This law might be the first step in the other direction, in that it will disproportionately impact people who have the means to have a car. But I don't think that's the direction we want to go with respect to creating new offences when the activity in question—possession of a drug—is already illegal.
On the idea that because you possess a drug in your car you ought to be punishable both by a maximum penalty of five years' imprisonment and the imposition of mandatory driving prohibitions, there's simply no connection. There's no connection between taking away somebody's ability to drive—and quite likely their ability to earn a living and be a productive member of society—and the fact that they may have had a small amount of marijuana in their car or their friend may have had a small amount of marijuana in their pocket and the driver knew it. It's just not related to impaired driving.
The purpose of this bill is purportedly to address the situation involving impaired driving, not the fact that people often use automobiles to go and purchase drugs. When you have a situation in this country in which almost half the population has used cannabis, marijuana, and some 15% to 20% of the country uses marijuana on a regular basis, I think it can be clearly demonstrated that the impact of this law is going to be disproportionate in terms of the seriousness of the activity targeted.
I should also say that this came up when this committee was discussing Bill C-16, the prior incarnation of the “drug-impaired” legislation put forward by the previous government. That legislation did not include this new offence of driving while in possession, although it was added in committee by member Vic Toews. At the time, Ms. Kane, senior counsel from the justice department, essentially said there's going to be a charter problem with this because the ends of the legislation are not connected to the new offence at all.
The fact that you have some drugs in your car does not mean you're driving while impaired. I will also suggest that of the number of people in this country who use marijuana, for instance, the vast majority of them are responsible citizens who are not driving while impaired, although they may use their vehicles to obtain the drug. It's just like how you will drive to the liquor store to buy beer. That doesn't mean you're going to drink the beer in the parking lot of the liquor store and then drive home while impaired. So this shouldn't be in the bill at all.
With respect to the proposed drug testing procedure, there are a significant number of concerns that the Civil Liberties Association has and that I urge this committee to consider. First, the proposed legislation is quite fuzzy on the concept of reasonable grounds. What are the reasonable grounds that are going to be utilized by police officers to perform the standardized field sobriety tests on the side of the road? What are the reasonable grounds that are going to be used to demand that the driver come to the station for the interview and for testing by a drug recognition expert? What then are the grounds that are going to be used to demand, under threat of criminal punishment, that citizens of this country provide blood, saliva, and urine samples? These are highly intrusive procedures.
This is a country that cares very deeply about privacy, and there is a significant privacy concern with respect to those things that are within your body. The process for getting these samples is, in itself, quite invasive. It's humiliating and can be quite degrading. For instance, if you're asked to provide a urine sample, in order to ensure that the sample is true and accurate you'll have to be observed giving the sample. That's a degrading experience. Some people are afraid of needles. To get a blood sample, you have to stick a needle into somebody's body and withdraw the blood. This is going to be a very humiliating experience for people who are subjected to it.
Another problem is that the process set out in the legislation is cumbersome and time-consuming. You have to remember that from the moment you're stopped by the police, you've been detained by the police. Your liberty has been restricted. And we now are talking about a three- or four-step process that will take a significant period of time to complete. Throughout that entire period of time, the individual has been detained.
Worse, the results of both the DRE evaluation and the bodily sample testing are, frankly, of little evidentiary value to the ultimate question of impairment. The DRE process has a veneer of scientific credibility behind it, but at the end of the day, it's observational on the part of police.
One study, a study done in Oregon by Smith, suggests that the average error rate for DRE testing is about 21%. The legislative summary attached to this bill suggests that error rates are anywhere from 10% to 25%. To put it another way, we have a situation in which, of every hundred people who are forced to come to the police station to be subjected to DRE testing, twenty will end up falsely accused and will then be forced into either committing a criminal offence by refusing to give a urine or blood sample or being put through the invasive procedure of giving that urine or blood sample. That's twenty out of a hundred persons who have to go through this experience but who may well not be under the influence of any drug at all. There's an error rate, and there's an error rate because DRE testing is simply not foolproof.
Worse yet, the invasive process, the forced taking of blood, urine, and of saliva, yields information of very little value to the ultimate question. The legislative summary is clear. As Mr. Solomon pointed out, there's simply no way in the science to link the presence of drugs in one's system to impairment. In legal terms, the information gleaned from the blood or urine test is irrelevant to the ultimate issue of impairment.
Frankly, I'm not sure the judges are going to be permitting this evidence to come in, because it's not relevant evidence. Absent reliable scientific links between drug use and actual impairment, it is inappropriate to conduct invasive searches of one's bodily fluids and to impose the accompanying detention that is necessary to effectuate the tests. It's simply inappropriate.
There is no doubt that impaired driving is unacceptable. The legislative summary suggests that 97% of all motor vehicle fatalities and 98% of all motor vehicle injuries are not related to drugs. The Senate report on marijuana, also cited in the legislative summary, concluded that for cannabis, which has been said to be the most widely used illegal drug and the most widely used drug second to alcohol, “The visual recognition method used by police officers has yielded satisfactory results”. In other words, we already train the police to observe people's levels of impairment and to make decisions at the side of the road on whether to charge the person with impaired driving or to take some other action such as imposing a 24-hour driving suspension.
This law has been characterized as a tool in the toolbox for police, but I think it's akin to using a hammer to pound in thumbtacks. We have a procedure in this country for charging people who are driving while impaired by drugs. As Mr. Solomon pointed out, we've had that for a number of years. It exists, it is used, and it can continue to be used. Police do that regularly. The invasive testing contemplated by Bill C-32 simply adds a false veneer of scientific credibility to the individual officer's subjective determinations.
I can certainly say more about each of these points, but the final objection to Bill C-32 is more philosophical than practical. Laws should be promulgated in this country in order to achieve results, not, frankly, so that government can be seen to be achieving results. First, the money that's required to implement this new law has been cut by the present government, with $4.2 million taken away from drug recognition training for police officers.
It appears that the provinces are being expected to bear the financial burden of implementing this new procedure, a process that will undoubtedly take several years and cost several millions of dollars. I would suggest to this committee that this money is better spent on activities that have been shown in the past to make a significant dent in the problem. We have achieved some great successes in this country in reducing both drunk driving and other dangerous behaviours through the use of education.
The assumption that increased penalties in the criminal law or the new criminal scheme is going to deter the behaviour is an assumption that bears some scrutiny, because I think it's one without merit. The way to stop this activity—and it is reducing—is through educational programs. It's through teaching people that this is a dangerous activity. Mothers Against Drunk Driving has been instrumental in doing just that, both in this country and in the United States. The television commercials have had an enormous impact.
Having defended these cases both here and in the United States for a number of years, I can tell you that people are doing this less. And they're not doing it less because of the law; they're doing it less because it's wrong. They know it's wrong because people can be hurt, and they've been taught that. But they're not doing it less because we're increasing penalties or because we're going to take blood or urine samples from them at the side of the road or in the station.
I would urge this committee to think long and hard about going forward with a law that dramatically restricts civil liberties, that's highly invasive of privacy, and that frankly isn't going to achieve the legislative goals that I think everyone in this room would like to see achieved.
Thank you.