Justice Committee on June 7th, 2007

[Kirk Tousaw]

Certainly, but the problem is—and I think it's one of the major problems we've been dealing with all morning—is that there's this assumption of infallibility. It was said, I think by Mr. Solomon, that if you fail the standardized field sobriety test, you're impaired. Well that's simply not the case. Police officers do sometimes get it wrong. That's why, for instance, when we talk about removing the ability to call the two-beer defence—

[Rick Dykstra, Conservative, St. Catharines, ON]

Kirk, that's fine. That's true. Aside from any new legislation that we're introducing, that's the case.

[Kirk Tousaw]

That's right.

[Rick Dykstra, Conservative, St. Catharines, ON]

If you're talking about infallibility, whether it's right or whether it's wrong, it's a completely different philosophical argument from whether or not the legislation actually makes sense, whether the legislation should be enacted.

[Kirk Tousaw]

No, I don't think it is. What happens is that we now have the idea that we're going to subject people to highly invasive, privacy-intrusive drug tests on the basis of an assumption, first, that there's some level of at least certainty that the person might have drugs in their system; and second, that if we find the drugs in their system, that provides evidence of impairment. Those are two faulty assumptions. That's simply not the case.

With respect to the idea that we should not allow, for instance, someone to take the stand and say, “I only had one beer”, that has been referred to as getting people off on a technicality. I don't think the right of an accused person to testify under oath that they're not guilty is a technicality. In fact, that's the cornerstone of our judicial system.

[Rick Dykstra, Conservative, St. Catharines, ON]

I want Mr. Solomon to respond, but the other point you made at the beginning was about the whole issue of the percentage of people who actually use marijuana and whether someone in a vehicle has it in his pocket, and therefore the driver is....

Whether you think marijuana should or shouldn't be an illegal drug is entirely another argument. The fact is, it is an illegal drug in this country for those who don't have a medical exception to be able to use it. When you use a vehicle, when you actually purchase the drug, or when you actually use the drug, those are three things that are still illegal in this country. You may wash over it from a civil liberties perspective, but those acts are certainly still illegal from a legal perspective, at least the last time I checked. That's why they've been incorporated into the bill.

[Kirk Tousaw]

No, I think—

[The Chair, Conservative, Art Hanger]

I would like you to respond, Mr. Tousaw, but there is limited time here.

I'm going to go to Mr. Solomon, and then the next questioner.

[Robert Solomon]

I think we have to get this clarified.

I agree with you that the testing of bodily fluids is at the end of the process. This is after the person was stopped. The officer has reason to suspect you have drugs in your body. You fail the standard field sobriety test. They have reasonable grounds to believe you are impaired by drugs. They take you to the station. They do the eleven-part test of DRE. They conclude you have a particular drug.

At the end of that, you're right, they get to demand and do an invasive test. It's just like how, if I'm charged with an indictable offence, the police can fingerprint me. I may find that to be invasive. If the police charge me with particular offences, they can demand hair, saliva, DNA. So you're right, it is, but it's at the end of a long process in which there are a number of safeguards and barriers built in. I think we have to recognize that. If, at any one of those stages, the officer concludes that there are no drugs and you're not impaired, you don't pass go and you don't go to the next step.

The other thing that I think it's important to emphasize is the other aspects of the DRE that establish the impairment. I would take issue with the view that DRE testing can't establish that you're impaired. That's absolutely not so, because it can establish that you are impaired. As a matter of fact, the science on divided attention, past testing—horizontal gaze and various test elements are clearly linked to impairment.

So I think you're right, it is invasive, but it's at the end of a long number of barriers that you have to jump over, all of which you have to answer yes to. Every other element of the DRE goes to impairment. The other elements go to the impairment by drug, including some of the physical examination stuff, but you're right, the bodily fluid test only confirms presence of drug.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Solomon, Mr. Dykstra.

Madam Jennings.

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

Thank you.

My colleagues here have covered some of the issues I had some concerns about, including the lack of connection between impairment and possession of an illegal substance in the vehicle. But I do have one issue, and it is under clause 3 of Bill C-32, in proposed subsection 254(2), which says:

If a peace officer has reasonable grounds to suspect that a person has in the preceding three hours had alcohol or a drug in their body while they were operating—the peace officer may, by demand, require the person to comply with

When we look at the actual Criminal Code and the section that is being amended by Bill C-32, there's a clear link between the officer having to have

reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed—an offence under section 253

The reasonable ground that the officer has to have is that the individual actually may be impaired.

Under Bill C-32, the peace officer no longer has to have reasonable grounds to believe the driver has committed an offence under section 253, which is the offence of impairment. The officer merely has to have reasonable grounds to believe that the person, in the preceding three hours, had alcohol or drugs in their body. That's a real problem. Do you not see that as being a problem, Mr. Solomon?

I would prefer to see that, under clause 3 of Bill C-32, in proposed subsection 254(3), we add in the reasonable ground that an offence was committed under section 253. That would then allow the officer to conduct the breathalyzer test, the breath test, the road sobriety test, whatever. That would then trigger all of the other mechanisms the officer has to confirm or inform his reasonable grounds that the driver was impaired. Right now, nowhere in that subsection do we talk about having committed an offence under section 253. We find that in the Criminal Code, but we don't find it here.

[The Chair, Conservative, Art Hanger]

Mr. Solomon.

[Robert Solomon]

I'll apologize. I'm somewhat at a loss, because I don't have that right in front of me.

It was my understanding that to do the tests at roadside for either drugs or alcohol, you need a reasonable suspicion that they have the alcohol or drug in their body.

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

Period. But under the Criminal Code, it says very clearly—let me read it:

Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable

--and then it goes on about breath samples, etc.

Bill C-32 is amending that section, and it's amending it by saying:

If a peace officer has reasonable grounds to suspect that a person has in the preceding three hours had alcohol or a drug in their body while they were operating a motor vehicle...the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol

The reasonable and probable grounds in the Criminal Code were linked to the fact that the person had committed, was committing, is committing, or at any time in the previous three hours committed an offence under section 253. In Bill C-32 we've removed the connection between the reasonable grounds—

Our courts have clearly defined all of the criteria for “reasonable grounds”, depending on the circumstances that meet the test of reasonable grounds. We've removed the connection with committing an offence under section 253. That's a glaring problem.

[The Chair, Conservative, Art Hanger]

Mr. Solomon.

[Robert Solomon]

Again, the question catches me a little off guard, because I haven't memorized those sections. My understanding, though, is that you need the reasonable suspicion for the roadside, and you need reasonable and probable grounds to then make the demand to take them down to the station for the DRE. I'd be happy to take a look at it, and perhaps I can address it later.

[The Chair, Conservative, Art Hanger]

I'm going to move on now, Madam Jennings.

Madame Freeman.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

We are all aware of the impaired driving problem. We realize that this bill provides for many rather important mechanisms, including the training of drug recognition experts. I personally believe that it will not be easy to enforce that legislation. I would like to hear your comments on that.

It is one thing to pass legislation, but to enforce it, a procedure has to be put in place. How shall we be able to enforce it in remote areas? In a previous hearing, we learned that the training of drug recognition experts is very costly, that it includes several stages and that it is quite long. The cost of that training will be paid by provinces. The training budgets of the RCMP have been reduced. I wonder how we will be able to train the number of experts required to enforce that legislation.

Do you think that it would be possible in practice to implement this bill satisfactorily given the training required for the Drug Recognition Expert Program? That training includes eight examinations and two practical tests. Twelve evaluations have been mentioned. It is rather difficult to find drug recognition experts. All those people have to be trained. Do you really believe that the implementation of this bill will be possible considering that it must cover the whole country?

[Robert Solomon]

As I understand it, the RCMP are continuing to train DRE officers at this current time. I'm pleased to see the rigorous standards of training because they ensure that those conducting the tests have the skills necessary to do so at a high level of accuracy. I think that's a positive thing.

Will there be some problems in some remote areas where there's no DRE officer? Yes, just as there are major problems in enforcement now where you have rural areas and relatively scarce police enforcement resources.

I accept that it's costly to train, but this legislation will provide a framework, and the training will ensure the accuracy and reliability of the results. So the legislation is a very positive step.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Do you have any comments on this subject?

[Kirk Tousaw]

I'd identify a serious concern. Notwithstanding the accuracy of DRE testing, there has to be a procedure in place to do it. What we heard from Mr. Solomon earlier is that police are reluctant to lay impaired charges because the defences take so long and they have to spend so much time in court.

This system isn't going to change that at all. In fact, it's going to increase the amount of time required to defend each case, because as a defence counsel you're going to have to challenge the standardized field sobriety test results and the officer's ability to do that. You're going to have to challenge the DRE test results and the officer's ability to do that, along with the training and the procedures they've gone through. And you're then going to have to challenge the toxicology screening results.

I think what you're going to see happen is what Mr. Solomon suggests is happening now, in that police are going to be reluctant to go down this road and lay these charges. They're going to do what they do, which is issue administrative roadside suspensions for 24 hours—at least in British Columbia—and not lay the charges.

So there are two pieces. One is that we don't have the people to implement the program. The provinces certainly don't have the money to implement the program currently. And the program itself is going to cause a further backlog in the criminal justice system, which is going to lead to more and more problems with the courts.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Tousaw. Madame Freeman, thank you.

We'll go to Mr. Moore. This will be the last line of questions.

[Rob Moore, Conservative, Fundy Royal, NB]

I'll split my time with Mr. Petit, if that's okay with you.

Regarding Ms. Jennings' questioning, I just want to confirm, Mr. Solomon, that your understanding—even though you haven't had quite a chance to review it—is correct on the safeguards that are in place. I did want to state that up front. I am referring to your understanding on the suspicion that leads to the standard field sobriety tests, as well as the reasonable and probable grounds that lead to the work with the drug recognizance experts. I did want to put that out there.

I wanted to give an opportunity to Ms. Miller. Is there anything you wanted to say? You've been here for a couple of hours. Is there something brief you wanted to put on the record? We do appreciate all the witnesses' presence here. This is an important bill.

I don't have a major concern with some of the concerns that were raised, because I think people recognize that we have to do more, that we have to tighten up some of these defences. I went through an airport screener the other day, and of course the buzzer went off; I had to subject myself to some things that I wasn't entirely comfortable with. I would argue that you only reach the point you get to with the final blood test—as, Mr. Solomon, you have appropriately characterized--after you've failed at every level. If at some point you do not fail, then you do not go past that stage—you never reach it. But we have to have safeguards in place, and that is in fact a check on all the other preceding testing that has been done to ensure that this person is in fact impaired. I think it's important to have those checks and balances in place.

I did want to comment first, Mr. Solomon, that your characterization of the process is in fact correct.

Ms. Miller, is there something wanted to say?

[Margaret Miller, National President, Mothers Against Drunk Driving]

I do have a few things I'd like to bring up.

My role in MADD Canada is to work with the volunteers, listen to the volunteers' stories, and help them try to find their way through the process. Sometimes it has been when the judicial system hasn't been doing what they needed.

Last weekend I was in P.E.I. for a white cross placement. They have a really bad situation there. A mother and a daughter had gone for a walk at six o'clock in the morning. Their neighbour had been out drinking the night before. He had slept for a few hours, got back in his truck, headed home, hit them both, and killed them both. This was on a very beautiful rural road, so it was really hard to go there, see it, and put up these white crosses.

What has now made it even worse for the family is that the impaired driving charge was dropped because the test hadn't been administered within two hours and fifteen minutes. The young man has now only been found guilty of dangerous driving causing death, and he was to be sentenced yesterday. I haven't heard what it was going to be.

During his trial, eighty people from the community wrote letters of support for the impaired driver, saying what a nice guy he was. That just shows the depth of frustration the families must be feeling that there's that much support for impaired driving. It's a fact. He was driving impaired, yet he has the total support of the community.

This was a really bad issue in this community, and it's too bad that the justice system hasn't been able to do more to get that conviction for impaired driving.

As another story, I was in Vancouver. A woman there lost her daughter to an impaired driver who was acquitted. He was drug-impaired. The family has been doubly victimized. That young man was acquitted too, so the family is being victimized again by the justice system because they're seeing that person drive about daily, knowing that he killed their loved one.

Every day, four people in Canada are killed by impaired driving, and 187 have often life-changing injuries. It's not just the numbers. We're talking about numbers. We're talking about lawyers. We're talking about loopholes, getting away with it, and other things, but we're dealing with people's families having their lives blown apart. Delays in this legislation will cost lives.

To put this in perspective, we lose more sons, daughters, mothers, fathers, and kids in two weeks in Canada than we have lost in all wars since 2002. Our greatest battle is here on our own ground, on our soil in Canada.

I was thinking a little bit about the self-serving two-drink offence. I have a new little grandson. He's two years old. I caught him at the wall with a red crayon, and I saw the red crayon marks. He said, “Not me”. It just brought to order that this is not a little self-serving. Was I going to believe him? I'm also a mother, but I'm also realistic. You have to be realistic when you're making these defences too.

We were fortunate that Bruce's killer was judged by a higher power than our justice system. He was killed at the scene of this crash. I can't imagine dealing with what I'm hearing so many of the victims are dealing with on a daily basis: that the people who have killed their loved ones, when we know they were impaired, when we know they were way over, have gotten through the justice system, have gotten off on technicalities, and are still living their lives while these families are not living theirs at all, not able to go forward.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mrs. Miller.

We appreciate that.

I'm going to bring this session to a conclusion now as far as the witnesses are concerned. We do have some business that the committee will have to deal with.

I want to thank everyone for appearing. Your testimony has been invaluable for the committee members to deliberate on, and we really appreciate your appearance.

Thank you very much.

[Proceedings continue in camera]