Justice Committee on June 12th, 2007

[The Chair, Conservative, Art Hanger]

I call the Standing Committee on Justice and Human Rights to order on Tuesday, June 12, 2007. This committee is deliberating on Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts.

Our witnesses today are the Canadian Society of Forensic Science, Mr. Brian Hodgson, Louise Dehaut, and Shirley Treacy, chair of the drugs and driving committee; the Canadian Centre on Substance Abuse, Mr. Douglas Beirness and Jacques LeCavalier; and the Canadian Bar Association, Mitchell MacLeod and Tamra Thomson.

I'm going to start, as they appear in the order of our agenda, with the Canadian Society of Forensic Science. Who will be presenting?

Mr. Hodgson, the floor is yours.

[Brian Hodgson, Chair, Alcohol Test Committee, Canadian Society of Forensic Science]

Thank you, Mr. Chairman.

Ladies and gentlemen, I sent a letter to the chair of the committee, Mr. Hanger, on May 24. I hope it's been distributed in both French and English. It sets out our views and our concerns with respect to one particular aspect of Bill C-32, and that's the change of the interval between successive breath tests, reducing it from 15 minutes down to three minutes.

Just as a preliminary background, I should indicate that the alcohol test committee is a special committee of the Canadian Society of Forensic Science. This committee was established way back in 1967 at the time when the first legislation was being introduced, the “over 80” legislation. The committee deals specifically with issues related to alcohol testing.

The committee is responsible for creating protocols for breath-testing programs across Canada, developing performance standards, evaluating breath-testing equipment, and establishing training standards for police officers using this equipment. In addition, the committee is the principal scientific advisor to the Department of Justice on matters relating to breath alcohol testing. I would add that any new instrument or device that's meant for police use here in Canada under the Criminal Code must be approved by the Minister of Justice, who will do so only upon the recommendation of our committee.

The committee standards for evaluating instruments are found at the website for the society, www.csfs.ca. The committee has a very rigorous protocol for evaluating instruments and devices for accuracy, precision, reliability, and specificity.

In regard to the current Bill C-32, the committee has a concern about reducing the interval between successive breath tests from 15 down to three minutes. The alcohol test committee recommends retaining the 15-minute interval between successive breath alcohol tests. This procedure produces two readings that are independent of each other but close enough in time to achieve acceptable reproducibility. The courts can be assured that the subject's blood alcohol concentration is truly what it is when two independent tests reveal the same conclusion within the acceptable boundaries of variability.

An interval of only three minutes, as proposed by Bill C-32, produces two readings that are interrelated or, in scientific terms, are duplicates of each other. Thus an external factor, such as mouth alcohol, that may contaminate the first sample can also affect the second sample, since it is taken so soon after the first sample.

Although some approved instruments have a built-in mouth alcohol detection system, these systems are not foolproof. They may be able to detect high concentrations of mouth alcohol, but low residual amounts may go undetected. Thus a mandatory 15-minute pre-test waiting period is required before the first test. But Bill C-32 contains no such provision.

The current 15-minute interval is ample time for any potential mouth alcohol to dissipate. If the first sample is contaminated by residual alcohol, this residue will be gone completely 15 minutes later when the second sample is taken.

Some researchers have argued recently that better agreement can be achieved between successive tests if they are taken close together, such as three minutes apart. They argue that a longer time period, such as 15 minutes, can result in wider discrepancies between readings, because alcohol is being eliminated, thereby changing the blood alcohol concentration, leading to a discrepancy greater than normally permitted and necessitating a third sample from the subject.

However, the amount eliminated during the 15 minutes is forensically insignificant and is not likely to be a major factor when a third sample is required.

Indeed, this research has demonstrated that the larger variable by far in duplicate testing lies with the quality of the breath samples provided by the subject. Over 80% of the variability can be attributed to the quality of the breath sample, which is called the “biological” or “sampling” component.

On a practical level, very little will be gained by reducing the interval to three minutes.

For example, in my own personal experience, in the last five and a half years I have examined over 600 files—621 to be exact—for the City of Ottawa Crown Attorney's office. I found that only 10 of those cases, which is less than 2% of the total, involved three or more readings. A shorter time interval might have alleviated the need for a third reading. I stress that it might have, since it was not at all certain that the discrepancy could be attributed to the time interval and not to the major variable of biological or sampling problems with the subjects themselves.

Finally, touching on the other change proposed in Bill C-32, under the category of “evidence to the contrary”, as you know, Bill C-32 proposes to eliminate the so-called two-beer defence. An accused person will stand and testify that he or she only had three bottles or four bottles of beer over the course of a period of time. If by calculation the blood alcohol concentration is under 80, he or she is therefore not in violation of the Criminal Code. We suggest that the 15-minute interval offers a more rigorous determination of a person's blood alcohol concentration when confronted with questions under the “evidence to the contrary” provisions of section 258 of the code.

Two independent tests, both confirming that the blood alcohol concentration is over 80 milligrams per 100 millilitres, offer more reassurance to the courts than two closely linked duplicate or interrelated readings when the validity of the test procedure is being challenged and defence counsel allege that the blood alcohol concentration may be under 80 either at the time of the testing or even back at the time of the offence.

I want to add that I realize the two-beer defence causes a lot of consternation, because it's the opinion of an accused person versus what instruments say in terms of the blood alcohol concentration. The committee is supportive of the new changes to Bill C-32 in that regard because the recollection of a subject is completely unscientific. It's the subjective recall of a person as to what he or she may think he or she drank during the evening in question.

Things came to a head in the Supreme Court of Canada decision Regina v. Boucher in which the emphasis was apparently placed on what the evidence is from the accused person. In my viewpoint, the Supreme Court almost ignored the readings from the approved instrument. To my mind, it is an unscientific approach to matters and, from our viewpoint, it's untenable.

We welcome the changes in terms of the “evidence to the contrary” aspect. But it doesn't necessarily solve anything because the new creation of evidence to the contrary will now shift focus on to the instruments, the way they operate, and the way they are operated by personnel.

Mr. Chairman, I brought an approved screening device here today, called the Alcotest 7410 GLC, which is widely used here in Canada. I also brought one of the approved instruments used here in Canada, the Intoxilyzer 5000C, which is used here in Ontario and in some other parts of Canada. I also brought some brochures on that instrument, plus another instrument called the BAC DataMaster C, which is used here in Canada. I've also brought brochures on two new instruments that are currently before the minister awaiting approval. Those are the current generation instruments.

These instruments are all automated instruments. They require operator involvement. But when strict protocols are followed and the instrument is working properly as per the recommended procedures, then the tests obtained, especially when they're 15 minutes apart, provide conclusive proof of the person's blood alcohol concentration at the time of testing. Of course, it raises the question of what the blood alcohol concentration was at the time of the offence, but that becomes another issue.

Finally, in terms of the current situation in the courts with the two-beer defence, from our viewpoint that is a legal issue, it's not a scientific one, because the recollection of a person who obviously is going to have an interest in what he or she can remember is not scientific.

Thank you, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

Thank you very much, Mr. Hodgson.

I see that there are two presenters from the Canadian Society of Forensic Science.

Shirley Treacy, you're going to be presenting in what capacity? Dealing with the drug issue?

[Shirley Treacy, Chair, Drugs and Driving Committee, Canadian Society of Forensic Science]

Yes, that's right. I'm the chairman of the drugs and driving committee, so my presentation will be more on the DRE program.

[The Chair, Conservative, Art Hanger]

Okay. Well, why don't we move over to the DRE program and your presentation then?

[Shirley Treacy]

All right.

Good morning. My name is Shirley Treacy. As I indicated, I am the current chair of the drugs and driving committee of the Canadian Society of Forensic Science.

The drugs and driving committee is an advisory committee to the Department of Justice on drug-impaired driving matters. I am a forensic toxicologist with more than 20 years of experience in analytical lab work as well as court testimony. I am the section manager for toxicology services for the RCMP forensic laboratory in Winnipeg and I am the former national operational support manager for toxicology services for the RCMP forensic laboratory. I'm also trained in standardized field sobriety testing and in the drug recognition, evaluation, and classification program.

The drugs and driving committee of the Canadian Society of Forensic Science has appeared twice before, in both 1999 and 2005, when similar drug-impaired driving legislation was introduced. Now, as on these previous occasions, the Canadian Society of Forensic Science drugs and driving committee wholeheartedly supports the legislation contained in Bill C-32.

The role of drugs in causing drug impairment as well as injury and fatal motor vehicle accidents in Canada and throughout the rest of the world is well documented in the scientific literature. The brief that was provided as part of this lists a number of those references.

Currently there are two offences in the Criminal Code that relate to impaired driving. One of them is in paragraph 253(b), which has to do with the illegal per se law, the “over 80” charge as it relates to alcohol. Here the police can demand that a person blow into a screening device at the roadside when they suspect alcohol in the body. If the person fails that screening device, the police then have reasonable and probable grounds to demand a breath sample for an evidentiary device—a breathalyzer, an Intoxilyzer, a DataMaster—and these readings can be used as evidence in court.

In the case of injury or if the person is unable to provide a breath sample, police can make a demand for a sample of blood, which is then collected by a medical practitioner and analyzed by the forensic laboratory for the presence of alcohol.

The second offence is in paragraph 253(a) of the Criminal Code, which has to do with driving impaired by alcohol or a drug, so in fact there is already a provision in the Criminal Code for drug-impaired driving. However, it is not as effective as it could be, since the police officer must provide evidence of both impaired driving behaviour as well as the presence of the drug causing impairment. You need both of those things.

Currently the second piece of information—the presence of a drug causing impairment—can only be determined through the driver's voluntarily participating in roadside sobriety testing, voluntarily giving a statement as to his drug consumption or voluntarily providing a bodily fluid sample for drug analysis. Most often this would be blood or urine. Note that I am emphasizing that these are all voluntary, and therefore few are compelled to comply.

Unlike the situation with regard to alcohol, there is no per se law for drugs, and there is no simple comprehensive roadside testing available to prove the presence of drug in a suspected drug-impaired driver. Available existing roadside screening tests conducted on urine or saliva are limited to the possible detection of just a few classes of drugs. These tests are presumptive only, non-specific, and do not measure impairment.

The drugs and driving committee does not support roadside testing for drugs by police officers. We feel that all drug testing, both screening and confirmation, should be conducted in a forensic laboratory by skilled analysts.

A drug-impaired driving case can only be proven by the totality of the following: one, observed and documented altered driving behaviour that alerts the police; two, roadside sobriety and drug recognition testing; and three, the demand for the collection of a bodily fluid. This bodily fluid sample would then be analyzed for the presence of drugs in a forensic laboratory.

Bill C-32 will give the police the authority to demand that the person perform the roadside sobriety test and drug recognition test, if appropriate, as well as to demand the collection of a bodily fluid. With these three things in place, these proposed legislative changes would safeguard and exclude those drivers who use prescribed medication correctly for therapeutic uses. Ethical use of drugs prescribed by a physician and dispensed and monitored by a pharmacist should not lead to impairment.

It is important to note that the mere presence of a drug in the driver, whether it be a prescription, a non-prescription, or an illicit drug, would not lead to a charge of impaired driving, since his or her driving would not have alerted police. Please remember that not all drugs will cause impairment, nor will they affect one's ability to safely operate a motor vehicle.

In the United States, the issue of drug-impaired drivers has led to the establishment of the drug recognition evaluation or DRE program in most states. The DRE program was adopted in 1988 by the National Highway Traffic Safety Administration, NHTSA, and is managed by the International Association of Chiefs of Police. It represents a structured 12-step procedure for assessing suspected impaired individuals and allows for the detection and documentation of symptoms of drug use and the effects.

The DRE program is based on the scientific fact that each family of drugs has its own set of clinical indicators. There are seven classes. They look at things like pulse, blood pressure, body temperature, muscle tone, and examination of the eyes. These can be learned, and tests can then be administered to look at the set of clinical indicators. This then allows the DRE-trained officer to identify a particular family or families of drugs causing impairment.

In addition, part of the DRE protocol is to have the individual complete a number of divided attention tasks to check for a deterioration in the ability to perform these tasks. Because driving is a complex task, it requires persons to divide their attention to do both physical and mental functions at the same time. Persons under the influence of drugs or alcohol will have difficulty in dividing their attention. In fact, they have a tendency to focus on one task, while ignoring others. For example, a person might concentrate on maintaining speed but would have trouble or be negligent in monitoring a lane position. Any deterioration in the ability to perform the divided attention tasks will be documented as part of the DRE protocol. This is used to assess whether or not a person is impaired.

The DRE approach also establishes the necessary probative cause for the collection of a biological sample for toxicological testing. If and when the DRE-trained officer identifies a family of drugs as causing impairment, the DRE can then demand a bodily fluid sample to test for the presence of the drug.

At this point, collection of the bodily fluid, which is usually urine, is the last step. It's step 12 of 12 steps. The urine sample is collected and then analyzed for the presence of drugs by a forensic laboratory.

The toxicologist's main role in this type of impaired driving investigation, and by that I mean where a DRE evaluation is completed, is to corroborate the finding of the DRE-trained officer. Therefore, if the DRE finding is not supported by the drug analysis, the toxicologist cannot corroborate the DRE finding and the case will not proceed to trial.

This process is outlined in reference 7, which is entitled “The Drug-Impaired Driver: The Drug Recognition Expert Response”.

At present there are 46 U.S. states that use this process to detect and prosecute drug-impaired drivers. This program has been scientifically validated both in the laboratory and at the roadside. Since the proposed legislation will detect the abuse of both pharmaceutical and illicit drugs, it's application is not restricted to illicit drugs.

In addition to the impairment caused by alcohol and other recreational drugs, there are many other medical conditions that can cause driving impairment, such as, for example, things like uncontrolled diabetes, epilepsy, and stroke. The DRE procedures are designed to help police officers identify medical disorders that can cause impairment. As a result, the DRE-trained officer would seek medical assistance for this person rather than incarceration.

Thank you for your attention.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Treacy.

From the Canadian Centre on Substance Abuse, we have Mr. Douglas Beirness.

Mr. Beirness, you have the floor.

[Dr. Douglas Beirness, Manager, Research and Policy, Canadian Centre on Substance Abuse]

Mr. Chairman, committee members, I am the manager of research and policy at the Canadian Centre on Substance Abuse, also referred to as CCSA. I'm a behavioural scientist, and over the past 24 years my research has focused almost exclusively on impaired driving issues. With me today is Monsieur Jacques LeCavalier, former CEO of CCSA and a current associate and senior advisor. We appreciate the opportunity to meet with you today to share our views on the issue of drugs and driving in Canada as you consider Bill C-32.

CCSA is Canada's national non-governmental organization established in 1988 by an act of Parliament to provide national leadership and evidence-informed analysis and advice on substance use and abuse issues in Canada. Accordingly, the issue of drugs and driving is of great interest to our organization, and we believe we're well positioned to contribute meaningfully to the discussion.

My colleagues and I at CCSA believe impaired driving is an area of serious concern for Canada. We've addressed the issue in a number of publications, copies of which have been provided to the clerk. We've also agreed to work with the Canadian Council of Motor Transport Administrators and Transport Canada to facilitate the goals and objectives of the strategy to reduce impaired driving. Collectively, our work reflects our level of interest and expertise in the area of drugs and driving.

In general, we at CCSA support the overall purpose and intent of the proposed legislation, particularly the requirement for drivers who are suspected of driving while impaired by drugs and/or alcohol to submit to physical coordination tests, such as the standardized field sobriety test, to submit to an evaluation of drug influence conducted by an officer trained in these techniques, such as the drug evaluation and classification program, also known as the DRE program, and to provide a bodily fluid sample for analysis. These provisions help to create a process comparable to that currently used for alcohol-impaired driving. However, there are a number of important considerations regarding Bill C-32 that we would like to bring to the committee's attention.

Our work on the issue illustrates the extent of the known risks posed by the impairing effects of drugs in traffic. At the same time, our work illustrates that relative to the knowledge about alcohol and driving, the knowledge base about drugs and driving is quite limited. To a large extent, this is because drugs and driving is a far more complex issue than alcohol. These complexities have hindered progress in the field, rendering tenuous any attempt at unequivocal statements about the magnitude of the problem of drugs and driving. As such, there's a dire need for credible scientific research to shed light on the true nature and magnitude of the problem of drugs and driving in Canada.

A difficulty that has persistently plagued research in this field is the detection and measurement of impairing substances in drivers. Whereas the presence and quantity of alcohol can be easily and reliably determined through breath analysis, no valid and consistently reliable comparable device currently exists to test drivers for other substances. Technological innovations using oral fluid samples hold promise for a device that will reliably detect the presence of certain substances, but practical devices may be many years away. Moreover, unlike alcohol where agreed upon levels of blood alcohol content consistent with impairment exist, such levels have never been established for other substances.

The alcohol crash relative risk curve, presented in a classic study by Professor Borkenstein back in the early 1960s, has yet to be established for other drugs. Hence, it's critical that tests to determine the extent of driver impairment accompany the collection and testing of bodily fluids for the presence of psychoactive substances.

My colleagues and I at CCSA have been working with the RCMP on an evaluation of the implementation of the DRE program here in Canada. Both Monsieur LeCavalier and I have taken the DRE course and we are very familiar with how this program operates.

You have previously heard from other witnesses, including Corporal Graham of the RCMP, that the DRE program is a systematic and standardized protocol to assess suspected impaired drivers for signs and symptoms associated with impairment by psychoactive substances. As part of our project we've had the opportunity to review the scientific evidence on the accuracy of the DRE program and have concluded that the ability of trained officers to identify the drug category responsible for the observed signs and symptoms in suspected impaired drivers is very good indeed, with measures of accuracy typically exceeding 85%. False negatives were not uncommon, but false positives were relatively rare.

A paper reporting the results of our study has been accepted for publication in the peer-reviewed journal, Traffic Injury Prevention. A copy has been provided to the clerk.

We've also examined drug evaluations of suspected drug-impaired drivers, conducted by Canadian officers trained in the DRE protocol in Canada. The findings demonstrated that the judgment of the evaluating officer concerning the category of drug responsible for the observed impairment matched the drug category in the toxicology analysis in 98% of cases. Again, a draft copy has been provided to the clerk.

In an ongoing study, we're investigating the reliability of the DRE protocol; that is the degree to which different officers are able to agree on the drug category involved for a given individual. To do this study we provided a randomly selected group of certified DREs with evaluation test results from 23 actual cases. The information provided included only the results of the test performed during the original DRE evaluation. Missing were the report of the arresting officer about driving impairment, the evaluating officer's narrative during the evaluation, and any admissions of drug use by the suspect. Using this limited set of information, our preliminary analysis showed that DREs were able to agree on the drug category involved approximately 75% of the time. Given that our experts were not able to observe the suspect first-hand, and only limited information was provided, we consider the results to be very good. In addition to demonstrating the reliability of the evaluations, the findings attest to the overall validity of the objective data collected as part of a DRE evaluation.

As positive as your research findings are, it is also evident that the DRE protocol is not perfect. The data indicate that the accuracy of the DRE procedure varies according to the class of drug. Some drug types are simply more difficult to detect than others. The use of more than one drug and the use of alcohol in combination with other substances can mask some symptoms and exacerbate others, leading to a mis-specification of drug category. In such cases, there is no question that the suspect is impaired. It's merely a question as to which class of substance is responsible for the observed impairment. Nevertheless, we are convinced that the DRE protocol is the best procedure available to assess drug-induced impairment. Further research and evaluation is clearly necessary to better understand the role of drugs and road safety and how best to identify and deal with those who engage in this behaviour.

The DRE protocol is an evolving process. Further research and development of the DRE protocol will ultimately lead to improvements in the extent to which these procedures can be used to detect some drug classes. Our own research continues, and we're currently using existing evaluations to identify sets of key variables in the evaluation to help officers identify specific drug categories.

We also believe there's a necessity to focus on the issue of impairment, and it's fundamental to the overall intent and purpose of the legislation. The mere presence of a drug or a drug metabolite is not sufficient to demonstrate the driver's ability was impaired. The proposed legislation outlines a process whereby the investigating officer must establish reasonable and probable grounds of impairment of the ability to operate a vehicle safely before making a demand for a bodily fluid sample. This process eliminates fears raised through the media about the possibility of criminal impairment charges being laid as a result of a positive drug test that may not be linked to actual or recent drug use. The police must first establish that the driver's ability was impaired.

It is also our belief that the legislation should maintain a focus on public safety, by controlling drug-impaired driving, and should not be used as a means of drug control. In this context, we believe that the proposed subsection 253.1(1), which makes it an offence to have a controlled substance in the vehicle, is inconsistent with the concept of impaired driving. Simply being in the possession of a drug in a vehicle does not equate with driver impairment. In addition, this particular proposed subsection specifies controlled substance as specified in the Controlled Drugs and Substances Act, CDSA, some of which have never been shown to cause impairment—for example, anabolic steroids. We recommend that offences related to the possession of illegal substances be tackled through the CDSA.

In addition, to further ensure that the focus of the legislation is on impairment, there is a need to define a drug. To this end, we propose the definition of a drug used by the DRE program. They say a drug is any substance that, when taken into the human body, can impair the ability of the person to operate a vehicle safely.

Although there's sufficient evidence of the dangers of drug-impaired driving to warrant the measures introduced by this legislation, the evidence is also very clear that the combination of alcohol and drugs, even in small amounts, creates a level of impairment and risk greater than that associated with either substance alone.

In recognition of this, we would like to propose that impairment due to a combination of alcohol and drugs, or a combination of two or more drugs, be treated as exacerbating circumstances in sentencing, similar to subsection 255(1), which currently considers blood alcohol concentrations in excess of 160 milligrams per 100 millilitres of blood to be aggravating circumstances in alcohol-impaired driving offences.

Undoubtedly you have already recognized that Bill C-32 will require officers trained in both field impairment testing and DRE. There are currently 2,427 officers trained in the SFST and 153 certified DRE officers, with 97 officers in the process of certification across Canada. From personal experience, we can attest to the fact that the DRE training is demanding and intensive. It requires commitment, ongoing study, and practice. If this legislation is to have a beneficial impact on drug-impaired driving in Canada, there needs to be an ongoing commitment to the training of police officers in these techniques as well as to the continued development and evaluation of these techniques.

The introduction of this legislation and the training programs necessary to support it are bold steps needed to address a persistent and what we believe is a growing problem. But as you consider this legislation, it's important to recognize that enforcement is only one component of an overall strategy to deal with drug-impaired driving. There's a need to include prevention, adjudication, and rehabilitation as integral components of a broader strategy.

An effective overall strategy will also require coordination and cooperation with the provinces and territories that share responsibility for dealing with impaired driving. Provincial and territorial agencies should be encouraged to examine their own programs for alcohol-impaired drivers, such as administrative licence suspension, short-term suspensions, interlock programs, and rehabilitation programs, and ensure that appropriate options are available for drug-impaired drivers as well. In the absence of these changes, drivers will quickly begin to perceive drug-impaired driving as a less severe offence than alcohol-impaired driving, and this is clearly unacceptable.

As a final note, we'd like to recommend that due consideration be afforded to the need for a comprehensive evaluation of the legislation and the introduction of the DRE program. Evaluation is more than a simple process to determine the success or failure of a program. Evaluation serves to inform policy-makers such as yourselves as to where improvements may be needed to maximize the effectiveness of a program and where efficiencies can be introduced. In the area of drug-impaired driving, a commitment to ongoing monitoring and evaluation is critical.

In closing, we appreciate the opportunity to present our views on drugs and driving in Canada to the committee. Thank you for your interest. We look forward to your questions.

[The Vice-Chair, Liberal, Derek Lee]

Thank you, Mr. Beirness.

Next is the Canadian Bar Association.

I understand, Ms. Thomson, you'll start and you'll share your time with Mr. Mitchell.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

That's correct. Thank you, Mr. Chair.

[The Vice-Chair, Liberal, Derek Lee]

Welcome back. The floor is yours.

[Tamra Thomson]

Thank you, Mr. Chair and honourable members.

The Canadian Bar Association appreciates the opportunity to speak to you today on Bill C-32. We're a national association of 37,000 lawyers across Canada. Our mandate includes improvement of the law and improvement in the administration of justice. It's in that optic that we have evaluated Bill C-32.

Our written submission represents that analysis of the bill. It was prepared by our criminal justice section. I think our criminal justice section is unique in Canada, in that its members comprise both defence counsel and crown counsel, so they bring that balance of views to their analysis of the bill.

I'm going to ask Mr. Mitchell, who is a member of the executive of the section, to present some of the highlights of the analysis of the bill.

[Mitchell MacLeod, Executive Member, National Criminal Justice Section, Canadian Bar Association]

Thank you, Mr. Chair. Having a first name that's a common last name often results in my being referred to as Mr. Mitchell. For the record, I'll say that actually MacLeod is my last name.

I would echo Ms. Thomson's comments with regard to both appreciating the opportunity to share our perspective here today with this committee on this very important issue, as well as indicating that our written submission, which has been provided to you, does encompass a broad range of perspectives from lawyers who not only occupy different roles in terms of being either crown attorneys or defence counsel but also encompass practitioners from across the country who operate in urban and rural environments and in public and private practices.

I sit as a provincial branch chair on the executive of our criminal justice section, and I can well attest to the lively debate and discussion that goes on amongst our group in coming to conclusions and recommendations that we present in our written submission to you. Indeed, I can say personally that in the ten-plus years I've had a substantial criminal law practice, I have operated and currently operate as both a defence lawyer and as a prosecutor. On some occasions I have stood on both sides of the courtroom on the same day.

I'd like to preface our main commentary by reiterating the common ground that I believe everyone in this room shares, and that is that the best interests of our society and of our citizens are served in reducing the incidence of impaired driving.

No numbers or statistics that we may see bandied about on this important issue will do really any justice to the value of a human life that might be saved if you, as a committee or our government, are successful in employing legislative changes or changes in policy that reduce the incidence, the frequency, of impaired driving on our highways.

We may represent a group of lawyers from across Canada, but we're all citizens, we're all members of the community, and no one would stand in the way of something as obviously beneficial to our society as a reduction in the amount of impaired driving and the tragedies that can often result from it.

However, and as you'll see from our submissions, the measures we seek to employ to accomplish that goal must not just seem to be things that would reduce impaired driving or look like they might do so; they should and must demonstrably do so. These measures should and must be rationally and factually connected to the results we desire. They should and must be measures that respect and balance the fundamental rights of all citizens that are enshrined in our charter. They must not confuse a perhaps understandable desire for retribution or for an increase in conviction rates. It must not confuse those concepts with a reduction in impaired driving rates.

The position specifically is outlined in our fairly substantial written materials, and I don't propose to utilize our remaining time in going through each of those in any particular detail. I would like to highlight, though, a few of our points, and perhaps points that haven't been touched on by other witnesses here this morning.

In relation to an overall perspective, it's our position that each of the proposed amendments or sections in Bill C-32 invite a substantial amount of charter scrutiny, and as a result invite substantial and perhaps in some instances even a paralyzing amount of litigation. To anyone who might suggest that the criminal justice section's concerns about these proposals show perhaps a defence counsel bias, I can certainly say that in its current form these amendments are a defence lawyer's dream, at least from a trial volume perspective.

As a lawyer whose practice encompasses the defence of impaired driving cases, I can certainly say from a purely professional and self-interested perspective that I can see in these proposals many months, if not years, of substantial litigation in the pages of Bill C-32 as it currently exists. However, the public interest prevails in the Canadian Bar Association's perspective on these issues, and the criminal justice section perspective in particular. Thus, in our conclusion, we state that every effort should be made to try to implement measures that might reduce the incidence of impaired driving to avoid encouraging or causing a torrent of litigation and the negative impact that would have on the administration of justice generally through the vastly increased demands that litigation would place on our criminal courts across the country.

The increased demands tie up resources, funds, and time that can be devoted, in our view, to measures that more materially deter impaired drivers. Those are measures that keep them off the roads in the first place. Those are the measures that will ultimately most directly save lives. Those measures are accomplished through enforcement. It is our view that the perceived risk of getting caught trumps any perceived risk or reward in terms of what might happen after someone is caught. It is that perceived risk of detection, of getting caught, that ultimately will best serve the interest of reducing the frequency of impaired driving in this country.

On the issue of drug recognition experts, the use of roadside testing and later testing, and as well on the issue of eliminating or curtailing evidence to the contrary defences, I'll touch on just one part of our submission in that regard. In our view, those items should be non-starters, essentially without mandatory audiovisual recording of the events that are related to those measures. An audiovisual recording should be a condition precedent to any contemplated enshrinement of these provisions in the Criminal Code.

The ability to record these things is already widely distributed. In our view, it's not so much a technological challenge as it is a commitment to devote appropriate resources to setting up frameworks for audiovisual recording of the activities of roadside testing, drug recognition experts involved at later testing, and items related to eliminating or curtailing evidence of the contrary defences. A commitment to complete audiovisual recording of those items should be mandatory, in our view.

By their very nature, the activities of drug recognition experts, regardless of how well trained they are, involve significant subjectivity, and they cry out, in our view, for audiovisual recording. In our view, the availability of an audiovisual record of the activity of drug recognition experts, roadside testing, and later testing would significantly deter many from perhaps rolling the dice and taking their chances at trial. I can say from personal experience with my own clients that there's nothing like seeing themselves on the big screen to bring home the reality of the situation to a client.

In our view, the availability of an audiovisual record might help reduce the anticipated deluge of litigation on these subjective drug recognition experts' testing. Indeed, if the types of testing that these drug recognition experts undertake are as accurate and legitimized through training to the extent that we have heard from certain witnesses, then certainly an audiovisual record of the process would only serve to confirm that fact and offer assurances to the public and to the profession in that regard.

With regard to audiovisual recording and the elimination or curtailing of evidence to the contrary defences—the so-called two-beer or bolus drinking defences—the provisions in Bill C-32 shift the onus to accused persons to produce evidence that tends to show that the instrument or machine, or the operator of that instrument or machine, is in error. The provisions additionally limit greatly what types of evidence an accused person can adduce in support of the position that the machine is wrong or in error or that the operator is incorrect or in error. This, in our view, makes the defence in that situation virtually moot absent the availability of an independent audiovisual record of the process. An accused person is hardly going to be in a position many weeks or months after the fact to call any evidence that tends to call into question either the operation of the machine or the activities of the operator, unless there is an independent record of what the machine did and how the operator operated it. In our respectful view, that requires more than just a checklist that the operator may have filled out or checked off and more than just a slip of paper that the machine may generate in its own self-testing mode that says, “I've tested myself, and I'm working fine, thank you very much”.

There is widespread availability of the technology at police stations and detachments to do this. Where that capability doesn't exist, it's our view that there should be a commitment to make it available. In order for there to be any meaningful defence available to an accused person to call evidence that tends to show these things, we have to allow for an after-the-fact, independent appraisal of what occurred at the station with the operator and with the instrument or machine.

Last, I'd like to touch briefly on the portion of our submission on the proposed new offences that involve offences of, in the vernacular, “over 80”, causing death or bodily harm or refusal when an accused person knows or ought to have known that he or she had caused an accident that resulted in severe bodily harm or death.

We see those provisions as significantly problematic. It's the view of the criminal justice section that to equate the maximum penalties—life in prison for offences that involve actual proof of impaired driving versus, simply, evidence that the person has a reading of over 80 milligrams of alcohol in 100 millilitres of blood or has refused to provide a sample—with moral blameworthiness in those circumstances is problematic and certainly invites significant charter challenge. We would suggest that it is not the reading of one's blood alcohol that “causes” death or bodily harm or causes the accident that causes death or bodily harm; it's the impaired ability to operate the motor vehicle that is the causal factor in those circumstances. And as we've pointed out in our submission, the virtually universal recognition that impairment of one's ability to drive occurs at readings of 100 milligrams of alcohol in 100 millilitres of blood really negates the necessity or efficacy that one might suggest would be achieved by adding an offence of over 80—again I put it in quotation marks—“causing” death or bodily harm.

Even more problematic, in our view, is the addition of an offence of refusal to provide a sample wherein death or bodily harm is involved. As pointed out in our paper, any time you import an objective test in those circumstances, which requires proof that the person knew or ought to have known that death or bodily harm resulted, that is problematic in the extreme. At the time, a person might refuse to provide a sample wherein death or bodily harm has resulted. That's obviously a time when a serious accident has taken place and persons who are asked for a sample may be injured or suffering from shock. That obviously may foreseeably impact on what they know or ought to have known in the circumstances, and it raises significant problems of proof.

Indeed, looking at it a little further, whether a person at the time they're asked to provide a sample, which obviously is in a time period that is close in time to when this accident would have taken place...there's a fair question to be asked whether they're even in a position to assess whether their operation of a motor vehicle “caused” an accident as opposed to simply that they were involved in an accident. Those are two different situations, two different sets of criteria involved.

I thank you again for the opportunity to present a few of the aspects that are raised in our written submission. As you know, our written submission goes into further technical detail regarding case law and other aspects of the legislation that the criminal justice section finds problematic.

It is certainly a worthy societal goal. There's nothing in our submission, nor in my presentation here today, in which we wish to suggest that a reduction of the incidence of impaired driving is not a worthy endeavour. By the same token, we would suggest that these provisions overall do not provide a rationally connected set of circumstances in which the ultimate goal—a reduction in the amount of impaired driving on our highways—can reasonably be expected to be achieved.

I'll end my comments there and look forward to any questions you may have.

[The Vice-Chair, Liberal, Derek Lee]

Thank you, Mr. MacLeod. My apologies for misstating your surname earlier.

I understand Mr. Hodgson has some breathalyzer testing equipment. We may be able to actually do something with that a little later in the meeting. I presume you need some three-minute breaks or 15-minute breaks, so after Mr. Hanger returns, we'll see if we can't get something started about 10:30, if members are willing to participate in something like that. So we'll leave it to the members after Mr. Hanger returns.

I'll go to the official opposition, first round, for seven minutes. Since I'd like to finish up the four first rounds by 10:30 a.m., I'll be fairly strict with the seven minutes today. Thank you.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you, Mr. Chair.

Thank you all for coming. It's very helpful and necessary.

I was quite supportive of this bill before we started the meetings, but after the last meeting, which raised so many problems, I'm not sure how much can be salvaged.

The main thing I want to ask about is the drugs. It's a new concept here. Ms. Treacy, basically with alcohol the present situation is that you at least get a breathalyzer or a roadside test, and if it's adequate you go and have an official breathalyzer and you could be convicted. With drugs, the big question is whether there's a similar scientifically defensible process. What you're saying is, yes, there are some that are applied substantially in the United States, and there are other types of tests taken at the roadside that are substantially scientifically defensible, relatively accurate, and legally defensible, which would require a person to donate a fluid, which then would produce a scientifically defensible result that could convict a person of being impaired. Is that correct?

[Shirley Treacy]

That would be correct, yes. For a paragraph 253(a) charge, there first of all has to be evidence of impaired driving. If they don't feel it's alcohol and they think it's drugs, if this legislation were to pass, the person would then be demanded to do roadside screening, like the standard field sobriety tests at the roadside. If they were to fail those, then that would give the police the opportunity to demand that the person complete a DRE evaluation, which is much more intensive and takes longer to do. It looks at clinical indicators as well as some of the standard field sobriety tests. If the DRE then says, yes, this person is impaired in their ability to operate a motor vehicle, and they are able to identify the drug class, then they will demand a sample of a body fluid—it could be urine or saliva or blood—for analysis by the lab to corroborate that finding.

[Larry Bagnell, Liberal, Yukon, YT]

Once they have the sample done, is there a level in a person's body of particular drugs, like cocaine, that would suggest that every person would be impaired at that level?

[Shirley Treacy]

No, particularly not in urine. You cannot correlate pharmacological effects in the body with what you find in the urine. So we're corroborating the finding. Based on the clinical indicators and the problem the person has in completing divided attention tasks, we can say they are under the influence of a drug, or drugs. What the lab does, or what a toxicologist does, is corroborate that finding and says the DRE evaluator says it looks like this person is under the influence of a central nervous system stimulant. I will analyse the urine sample and I'll find cocaine, and cocaine is a central nervous system stimulant; therefore I can corroborate their findings.

[Larry Bagnell, Liberal, Yukon, YT]

So in alcohol, if it's about 0.08, that in itself would be enough to convict and suggest the person is impaired. But in drugs it doesn't matter what the level, at least in a urine test. It doesn't necessarily suggest the person is impaired.

[Shirley Treacy]

That's right. There is no correlation for drugs. There just isn't enough literature out there. But for alcohol it's 80 milligrams per 100 millilitres, and that's based on blood levels, not urine.

[Larry Bagnell, Liberal, Yukon, YT]

Is there a difference in the blood test and the urine test in the drugs?

[Shirley Treacy]

In what regard?

[Larry Bagnell, Liberal, Yukon, YT]

You were explaining how urine tests couldn't determine impairment. Would a blood test give any different results?

[Shirley Treacy]

There is more stuff in the literature about blood levels, but blood would be considered more invasive. So the program, as it stands in the U.S., is based on collecting urine samples—I guess saliva samples are another possibility—because they're less invasive than collecting blood.

[Larry Bagnell, Liberal, Yukon, YT]

Would the Canadian Bar Association agree, and also the Canadian Centre on Substance Abuse, that the process that was just outlined would basically result in convictions similar to alcohol, without more excessive litigation and problems that would tie up the whole system?