Justice Committee on June 12th, 2007

[Mitchell MacLeod]

I apologize, Mr. Bagnell. At the time you were asking your question I was contemplating some notes I had written about something Ms. Treacy said. I would just ask you to repeat that for me.

[Larry Bagnell, Liberal, Yukon, YT]

Okay. Basically the question is this. Under the process that Ms. Treacy just outlined—the parallel process for drugs that is used in the States—if we applied this law as it's presently written, would we then get a number of drug convictions without too much legal hassle, or no more than we get in alcohol? Obviously there are always challenges. Would it result in a number of successful convictions, similar to the percentages in alcohol, without too many legal problems or hassles?

[Mitchell MacLeod]

No, that's not the way the criminal justice section sees it. Indeed, in my deep contemplation of moments ago, I was taking a couple of notes. What Ms. Treacy had spoken about was some testing that, let's say, is suggestive of a central nervous system stimulant, and then there's corroborative testing of the urine, and in that testing of the urine it shows there's cocaine in the urine. I think the conclusion the court is going to be asked to draw, or that people are going to be asked to draw, is that the detection of the cocaine in the urine is somehow corroborative that a central nervous system stimulant, and specifically cocaine, was impairing that person's ability to drive a motor vehicle.

We see that type of logic generating an unbelievable amount of litigation. It would be our view that you cannot necessarily draw the conclusion that the presence of cocaine in the urine is corroborative of either the fact that the person was under the influence of cocaine as the central nervous stimulant—it might have been a different central nervous system stimulant—or indeed that a central nervous system stimulant was the precursor to the symptoms that the drug recognition expert found. I think you're going to have court challenges at every step of that process, arguing about what symptoms are indicative of what drugs, about what the differential diagnosis is. If a person is exhibiting symptoms A, B, and C, yes, it could be a central nervous system stimulant. What else could it be?

Those aspects of it, in the view of the criminal justice section, are just part of what we see as a set of circumstances in Bill C-32 that are going to generate an unbelievable amount of litigation, and attendant costs, both in terms of resources and in terms of the time the cases are tied up in the system.

[The Vice-Chair, Liberal, Derek Lee]

Thank you, Mr. MacLeod and Mr. Bagnell.

Monsieur Ménard, vous avez sept minutes.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you. My three questions are for Mr. Hodgson.

First, I want to know whether you officially support the bill. Second, it seems increasingly clear to me that we will not be able to support this bill without specific training on new detection technologies. It's not enough to take 10 minutes at the end of the meeting, particularly since we will have to go and vote at 11 a.m. The division bells will begin to ring at 10:30 a.m. or 10:45 a.m.

I would like for us to be briefed on the available technologies. You talked about a new generation of devices. Would you be in a position and able to provide us with a very in-depth information session, so that we can truly understand what we're talking about? Not only will the offence system change, but this change will have repercussions on the presumption of innocence as well as on the administration of justice in relation to impaired driving. For that reason, I believe it is important for us to truly understand new screening technologies.

If I understand correctly, you are saying that these devices are not effective or operational when it comes to roadside drug screening tests.

In short, here are my three questions. Do you support the bill? Could you provide us with proper training? What can you tell us about this new generation of devices? Finally, when it comes to roadside screening tests, we must distinguish between alcohol and drugs. Have I understood correctly?

[Brian Hodgson]

Thank you.

First of all, yes, the alcohol test committee is supportive of Bill C-32. Our only concern is that specific change in regard to the interval between successive breath tests.

I want to make it clear that my colleague Louise and I are only discussing the aspect of alcohol detection, which is a much simpler process than it is for other types of drugs. The technology that exists, has existed, and will exist is well tuned and adapted to measuring alcohol either at the roadside for screening purposes by use of a screening device or to confirm the blood alcohol concentration by means of an approved instrument. It's a very straightforward process. It's one that has to have strict protocols.

On testing drugs, I'm going to have to leave that to my colleague Ms. Treacy in terms of the testing at the roadside, because it's a completely different aspect.

If my colleague Louise has anything to add, perhaps she'd like to comment.

[Louise Dehaut, member, Alcohol Test Committee, Canadian Society of Forensic Science]

Not really. I think that you have said all that needs to be said.

[Réal Ménard, Bloc, Hochelaga, QC]

If, as parliamentarians, we get training, you will be the one to provide it to us. You are the one advising the Department of Justice and you know this new generation of devices, which are the most up-to-date.

[Louise Dehaut]

That is true for drinking and driving, but not for drugs.

[Réal Ménard, Bloc, Hochelaga, QC]

Your colleague Ms. Treacy has information on drugs.

[Shirley Treacy]

Yes. I'm not sure, though, exactly what question you're asking me specifically.

[Réal Ménard, Bloc, Hochelaga, QC]

What concerns me is that we cannot administer standard roadside tests, which are usually filmed, to test for drugs in the body. The CBA recommends however that they be systematically filmed. We understand that this simplifies things when it comes to the administration of justice.

Based on what I understand, not only are the technologies used to detect drugs in the body not up-to-date but in addition, some signs, even when present, are not sufficient to conclude that drugs are the cause of the impairment. The most helpful technology used by police officers during roadside tests cannot be applied to drugs.

I wonder then whether, as parliamentarians, we should vote on that part of Bill C-32 relating to drugs. Or, should we simply delete this portion?

[Shirley Treacy]

There is a difference between alcohol and drugs, yes. In detection it's relatively simple to use a screening device to determine whether the person has alcohol in their body, but for drugs there is no such testing roadside; there is not an instrument like that. It means you have to do the standard field sobriety test at the roadside in order to detect, and you're not actually saying whether there's a drug or alcohol or a combination of both; it's whether the person has difficulty doing divided attention tasks. That suggests to you that they would be having difficulty in safely operating a motor vehicle.

Only a certain small number of those tests, three roadside tests, are done. If a person fails those, they then go back to the police station, where they would undergo a DRE evaluation, which includes divided attention tasks but also a number of other clinical indicators.

It would probably be fine to videotape the standard field sobriety test of having the person go through the walk and turn, the one-leg stand, etc. However, the clinical indicators are things like taking blood pressure, pulse, and body temperature. I'm not exactly sure what you expect to see by videotaping that; it really won't show anything. There would be limited value in doing a videotaping of a DRE evaluation, because other people are only going to be able to see—If you don't know what you're looking for and are not trained—'m not sure of the value of having it videotaped.

[The Vice-Chair, Liberal, Derek Lee]

Merci, Monsieur Ménard.

Go ahead, Mr. Comartin, for seven minutes.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair, and thank you all for being here.

Let me just say to the Bar Association that I think there's already a consensus on the part of the opposition parties on getting rid of that extra offence on possession within the vehicle, so we're going to deal with that.

I also want to thank you because you've raised a number of issues that none of the other legal groups or defence groups has brought forward, both around sentences and on the new offences created. I appreciate that, because they were points I hadn't caught, and I don't think they had been drawn to the committee's attention yet. Thank you for that.

I want to follow up on the last point. Mr. MacLeod, let me start with you.

I had a similar reaction when you were raising the point, both in the brief and now verbally, over how extensive the use of audiovisual has to be to be effective. We've heard now from Ms. Treacy that it would be a specific problem with the DRE examination. You're looking there for whether you're seeing the bloodshot eyes; I don't think we have technology specific enough to catch that and some of the other symptoms that would be caught by the observations of the officer.

Similarly, to go to the alcohol side, are you proposing that we would use audiovisual at the station, whether Borkenstein or one of the other machines is being used? To add to that, are you saying that when the police officer is doing the testing and when the testing is actually being done and when the technician is actually testing the equipment, all of that would be subject to an audiovisual assessment?

[Mitchell MacLeod]

The short answers are yes, yes, and yes.

To go back to the beginning, on the DRE testing, while I am cognizant of Ms. Treacy's comments questioning the utility of videotaping things like the taking of blood pressure, pulse, and body temperature—some of the components involved in DRE testing—our position would be that there is a great deal of utility in having those items videotaped. I think part of Ms. Treacy's comment was to the effect that unless you knew what you were looking for in the videotape, how much good would it be? But that's the point. If you're an accused person in that circumstance and there is a videotape of the proceeding, then your defence counsel would have the ability to have somebody who knows what they are looking for observe the numerous and detailed steps undertaken by a drug recognition expert and assess whether or not the steps were followed—whether the procedures were done in the appropriate order and whether they were done with the appropriate protocols in place.

Indeed, one of our side concerns with this legislation is that there aren't regulations—at least that I've seen—that actually lay out the exact details of these things. They talk about training and manuals. We think those procedures should be enshrined in regulation, so there is cross-Canada consistency and a very detailed protocol, in or via regulation, that can be buttressed by a videotaped record.

Sure, you might not be able to see with great clarity the bloodshot eyes, but you can certainly see the physical things: how was the blood pressure taken; how was the pulse taken; how was the body temperature taken; and how long did it take to get those, and were there several attempts required to get a blood pressure reading? All those things would show up in videotape.

In relation to impairment, whether it's by alcohol or drugs, I've had occasion in my practice to see videotaped proceedings from police stations, or entrances into police stations or interview rooms, by persons accused of impaired driving. I can tell you these are extremely instructive in the vast majority of cases—in fact, I don't know if I've seen them in any other way. They were instructive in showing an accused person that they perhaps were in fact a little more impaired than they seem to have recalled they were. I think it would be helpful on the prosecution side more often than on the defence side.

Lastly, on the actual maintenance or testing of the videotape machines, I can't say our section was contemplating that specifically when we talked about the audiovisual record; we were talking more about roadside testing and DRE and/or sobriety testing in general at a station. The clearer and more in-depth the record, the better, from our perspective. So I doubt we would be against the process. Whether or not there are already sufficient records maintained, when the machines are actually formally being serviced by qualified people, I would have to leave an opinion on that to further discussion by the section or experts in the area.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Let me pursue that in terms of other assessments. From some of the other criminal defence lawyers who've come before us, we've heard of the need to have a clearer set of regulations that would require the technician to have taken these steps every time the assessments are done, so that when the machine is not being used, it will be tested on an ongoing basis—and of the need for that to be done, if I understood correctly, by independent authorities, rather than the technicians or police officers.

Has the Bar Association done any detailed analysis of what would be required to have that regime in place, or what would be required, in effect, to meet the greater degree of certainty in the validity of the equipment?

[Mitchell MacLeod]

The main concern raised within the criminal justice section involving the instruments or the machines was focused on what's happening at the time an accused person is being tested on the machine. This takes on a much greater importance when that person is later restricted from being able to testify about how much they had to drink and to have evidence to the contrary considered by a court in the normal context.

I cannot say that we discussed in any depth the general maintenance of the machinery or the accuracy of the instrument in terms of its ongoing maintenance, whether it be monthly or yearly, or those types of things. It was more in relation to having a videotaped record of how the instrument was being operated at the time, because if the onus is on the accused to produce evidence that the machine is not working properly, or the operator is not operating it properly, what ability are they going to have to do that unless, after the fact, they can show somebody who does know about those things an independent record of what happened?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

If the section of the code applicable to the two-beer test had a mandatory audiovisual requirement and a set of regulations, which I suppose will have to be outside the code, as to how the equipment is to be maintained, the records of that, if a regime were in place, would the Canadian Bar Association still be opposed to the section as it is worded now, in effect taking away the defence that's evolved out of that section and through interpretation?

[Mitchell MacLeod]

Yes. The section's position wouldn't change in terms of being opposed to removing or curtailing that defence. We would suggest that the availability of that record would enhance and add a layer of objectivity, or an additional layer of objectivity, to the calling of the defence. In addition to an accused person's testimony about how much they had to drink and any buttressing evidence they have that corroborates what they have to say, in addition to the testimony of a toxicologist for the defence, an additional piece of evidence the court would have available to them would be a video record. And in fact the defence toxicologist would also be able to comment on an audiovisual recording of the testing process itself.

So it would enhance the process, but we do not believe it would necessitate or in any way encourage the elimination of that type of defence. Essentially what you're saying in that type of defence is that an accused person, who believes they are innocent or have not had sufficient alcohol to drink to have a particular reading, is not permitted to testify under oath to that effect. We have judges, we have triers of fact in this country, who are able to assess that evidence.

I should add that I don't believe it's accurate to suggest that the two-beer test, this “evidence to the contrary” defence, is simply a matter of an accused person taking the witness stand and swearing they only had two beers and the defence calling it a day on that basis and having judges acquit. The judges assess the credibility of that testimony in relation to a broad range of other evidence that might be available, and that would include an audiovisual record of what happened in the testing procedure.

[The Vice-Chair, Liberal, Derek Lee]

Thank you, Mr. MacLeod.

We'll come back to you for a second round. You've had ample and additional time, Mr. Comartin. Thank you for your round.

Before I go to Monsieur Petit, I'm going to indicate that Mr. Bagnell has agreed to work with Mr. Hodgson on this breathalyzer reading issue. I will point out that for these purposes all our parliamentary privileges are in place with respect to all the laws of Canada, and that applies similarly to all our witnesses, who are protected by parliamentary privilege. So we'll proceed with that at 10:30.

In return for participating in the experiment, I've assured Mr. Bagnell he can have a second round, if that's okay with members.

I'll now go to Monsieur Petit for seven minutes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

My question is for Mrs. Treacy.

I am very interested in the proposed amendments to the Criminal Code. Provisions respecting drug screening, or more specifically impairment-causing narcotics, are set out in greater detail. In your brief, you described a test which is assessed by drug recognition experts. They are trying to determine whether it is possible to administer this as a roadside test, meaning in a police station. I would ask you to give us more details about this. With regard to the drug recognition experts program, known as DRE, we are well aware that the RCMP and some American states have done studies. In fact, 45 of them have used this program.

According to the experts, this program is 98% accurate. You have read what we have proposed putting in the Criminal Code with regard to this program. In your opinion, is this a good enough tool to incarcerate individuals who use narcotics? I must clarify that this is our goal. In Quebec, when I sit in a restaurant with my friends and I smoke a cigarette, I can be charged with an offence and fined $50. And yet we would allow people who use drugs to get behind the wheel and kill one of my children? Not on your life! That is why I'm asking you, Mrs. Treacy, if you are able to tell me whether this test works well.

[Shirley Treacy]

Are you asking me to tell you about the 12 steps for the program? This is a two-part thing, but for the first part of the question, are you asking me to describe the 12 steps?

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

In particular, I would like you to give us information on the initial steps. In fact, based on what I understand, with regard to what is currently available to Canadians, they allow experts to confirm the presence of drugs and that those drugs were the cause of what was discovered during the first two or three steps in the process. I'd like to have your comments, if you have any, regarding the safety of these initial steps.

[Shirley Treacy]

There are 12 steps in this process. I mentioned earlier that they've already failed the standardized field sobriety test at the roadside. They go back to the police station, and then a person who is trained in drug recognition evaluation does a number of eye tests, looks at a number of clinical indicators, and has the person do divided attention tasks. One of the first things they're doing is looking at the eyes and looking to see whether or not the person has a head injury. So they're looking for medical conditions at the same time.

They go through this 12-step procedure. They then record all of the information on there. They're looking for things like pulse and blood pressure at different times. They do examinations of the eyes. They look at muscle tone. They have them go through the divided attention tasks, although there are five of them, rather than three, as is the case at the roadside. Whether or not they fail the divided attention tasks helps them determine whether the person is impaired. Then, based on the clinical indicators, they can determine whether there is a drug or a drug class—more than one—involved in causing that impairment. Impairment can also be alcohol mixed with drugs.

If they cannot make a call, or the person passes the divided attention tasks at that particular point in time, there would be no bodily fluid sample collected. The DRE has indicated that they have gone through the entire testing. Perhaps the person has a very short-acting drug, or perhaps the person is doing fine on the divided attention tasks at that particular point in time. The DRE would not continue. They would stop, and they would say this person is obviously not under the influence at this particular point in time.

So they have to go through the entire 12 steps. At the end of that they make a call: “Yes, this person's ability to operate a motor vehicle is impaired, and the reason for that impairment is a class of drugs”—and they identify the drug class. They don't identify the drug. They don't identify it as cocaine or methamphetamine; they identify it as a stimulant. A urine sample is collected and sent to the lab. I do not just test for stimulants; I test for all drugs. Therefore, if the person is under the influence of a depressant rather than a stimulant, it means that the call was incorrect and the case would not proceed to trial. I might find cocaine. I might fine methamphetamine. I might fine amphetamine. I might find ephedrine. I might find sudephedrine. These are all stimulants. It therefore corroborates the finding of the DRE.

So, yes, I actually feel there are a lot of checks and balances in this process and that people who are not under the influence of a drug would not get charged. There are lots of processes in place. They have to have the three steps. You have to have evidence of impaired driving in the first place. They have to have failed the standard field sobriety test. You have to have them go through a DRE, which again includes divided attention tasks. Then you have to have the bodily fluid sample, which corroborates the findings of the DRE. So there are lots of checks and balances in place.

The second part of your question had to do with the person's being a cigarette smoker. The DRE does not consider all drugs. There are lots of drugs out there that do not impair your ability to operate a motor vehicle. One of them would be nicotine that you find in cigarettes. Another would be caffeine. We don't worry about things like vitamins or antibiotics, or lots of other drugs. Not all drugs will impair your ability to operate a motor vehicle.

The DRE program is set up so it looks at seven classes of drugs that will affect your ability to operate a motor vehicle. So although I do a screen—and I look for everything; I look for things like acetaminophen, Tylenol, Aspirin—I'm really only interested in reporting the ones that impair your ability to operate a motor vehicle. However, the report will indicate all the other drugs that I found, and I will indicate that some of them do not impair your ability to drive. That's part of my job as a toxicologist.