Evidence of meeting #76 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was impaired.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Brian Hodgson  Chair, Alcohol Test Committee, Canadian Society of Forensic Science
Shirley Treacy  Chair, Drugs and Driving Committee, Canadian Society of Forensic Science
Douglas Beirness  Manager, Research and Policy, Canadian Centre on Substance Abuse
Tamra Thomson  Director, Legislation and Law Reform, Canadian Bar Association
Mitchell MacLeod  Executive Member, National Criminal Justice Section, Canadian Bar Association
Louise Dehaut  member, Alcohol Test Committee, Canadian Society of Forensic Science
Jacques Lecavalier  Associate, Research and Policy, Canadian Centre on Substance Abuse

10:50 a.m.

Conservative

Rick Norlock Conservative Northumberland—Quinte West, ON

That's correct.

10:50 a.m.

Chair, Drugs and Driving Committee, Canadian Society of Forensic Science

Shirley Treacy

No, there isn't the literature there is for alcohol. We do have to remember that there are two sections in the Criminal Code about impaired driving: one of them is the over 80 charge; the other is impaired from drugs or alcohol, which means that it doesn't matter what the alcohol level is, you could be charged if your blood alcohol concentration is 30 or 40 if you are showing outward signs and your ability to operate a motor vehicle is impaired. So it doesn't matter what the blood alcohol concentration is. Therefore, it also doesn't matter what the drug concentration is. You have to have the evidence of impaired driving and you have to see the outward signs in the individual in order for you to proceed with an impaired driving charge.

10:50 a.m.

Conservative

Rick Norlock Conservative Northumberland—Quinte West, ON

The problem here is—tell me if I'm wrong—that there is a lack of scientific measurement or a lack of scientific evidence to say how much marijuana you have to smoke or how much cocaine you have to ingest and so on before you meet certain criteria.

To your knowledge, has there been any scientific testing to that effect that measures it? And if so, could that be produced for the committee?

10:50 a.m.

Chair, Drugs and Driving Committee, Canadian Society of Forensic Science

Shirley Treacy

Yes, there actually are studies that have looked at that.

The problem is, because there are pharmaceutical medications that people are on, there's the issue of tolerance. So I don't know that we'll ever get to a point where you can say that a specific concentration of drug is going to cause impairment. In fact, other countries in Europe, places like Sweden and Germany, have gone with zero tolerance, meaning that if they find the presence of cocaine or heroin--a drug you're not supposed to be taking--in your body, then you are charged. It doesn't matter how much; it's the fact that it shouldn't be there in the first place.

10:50 a.m.

Conservative

Rick Norlock Conservative Northumberland—Quinte West, ON

In this country, we're much smarter in our laws than they are, because we say that if you have it in your blood, since the state can't prove that it's too much or too little or anything, we just ignore it, because it might create some kind of problem for the accused person, irrespective of the problem it causes for society. I'm sorry, that's not a question you probably want to get involved in.

Mr. Lecavalier, in my previous occupation, as I was leaving—I was a breathalyzer operator for about seven or 10 years—we were just being exposed to the—And of course in this country we hate to say anything about the United States, that it might have something perhaps more advanced than we have. But the drug being able—

If I remember correctly, you were discussing some of the physical aspects, but I didn't hear anything about retinas. When I was leaving, there was talk about retinal—Is that a separate issue from the drug recognition program, looking into the eyes? Or is that part of it? Could you explain that part of it a little bit, because we haven't heard about it?

10:50 a.m.

Manager, Research and Policy, Canadian Centre on Substance Abuse

Dr. Douglas Beirness

Several eye examinations are included in the field sobriety test and the drug recognition expert program, because they're very highly correlated with levels of blood alcohol and impairment.

The most commonly used test is the lateral gaze nystagmus, which is the involuntary jerking of your eyes as you move them to the extremities. It's very noticeable for certain types of drugs; you cannot control it. You have absolutely no voluntary control over those movements of your eyes. That's one of the tests that is used.

You can also do it vertically. Certain drugs will also show vertical nystagmus.

Some of the other eye tests include looking at the reaction to light, or simply looking at the pupil size. Some drugs dilate pupils; some drugs constrict them.

Those sorts of things are very important and critical to the DRE process.

10:50 a.m.

Conservative

The Chair Conservative Art Hanger

Mr. Norlock, I'd like to let you continue—that's very interesting—but, Mr. Comartin, you're next on the list here.

10:55 a.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. MacLeod, I have concerns of going to the third stage of the drug testing regime because of its invasive nature. Frankly, we end up with evidence that's going to be admissible but doesn't prove anything. It could be very prejudicial in the mind of the judge, in terms of somebody having consumed an illicit drug.

Has the Bar Association looked at a regime that would allow the legislation to proceed on stage one and two—that is, the roadside assessment and then the DRE assessment at the station—but not go into the third stage at this point, or not put it into play until something occurs, according to some scientific standards? Or has the Bar Association looked at just keeping it out of the legislation?

Have you done any analysis of that kind of approach? Also, do you have any sense of how the Bar Association would feel about that kind of approach?

10:55 a.m.

Executive Member, National Criminal Justice Section, Canadian Bar Association

Mitchell MacLeod

One of the things the criminal justice section has tried to be cautious about is treading too far into the more scientific areas, because we're not scientists; we're lawyers who have to understand certain aspects of science in order to do our jobs. So I cannot say that we've looked at stopping it at the second level, or, from a scientific perspective, whether or not it can go to the third level.

The concern, broadly speaking, is that.... Actually, I'll go back. A lot of the witnesses here today have referenced that with alcohol, we have studied it to death. We know what it does. We have standards. We—

10:55 a.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Norlock was saying that; it wasn't the committee. I think the people on the panel think there is still more study to be done.

10:55 a.m.

Executive Member, National Criminal Justice Section, Canadian Bar Association

Mitchell MacLeod

True, but I know Mr. Hodgson and Ms. Treacy have both made reference to the idea that when we're dealing with alcohol, it's one thing. When we're dealing with drugs, it's a different animal altogether.

The concern of the criminal justice section is that we seem to be trying to shoehorn the drug-impaired driving problem into the same sort of framework in which we deal with alcohol. To that extent, we see it as problematic.

That's where you get the roadside tests, the DRE, and these very invasive bodily sample tests. Something as simple as a urine test is extremely invasive. On the surface, it may not sound like a big deal, but in order to confirm the source of the test—and I won't go into any further detail than that—it's potentially quite a humiliating experience.

Having blood drawn, for some individuals, is a very traumatic experience.

All of these things result from trying to shoehorn the drug-impaired driving problem into the drug-impaired framework in the Criminal Code, if that's making any sense to you.

We acknowledge that there's a problem, but because we're dealing with a completely different situation with drugs other than alcohol, we're simply not at a stage where we can apply the same legislative framework to deal with that issue.

We already have provisions in the Criminal Code that allow police officers to observe signs of impairment by drugs or alcohol, or both, and it can be dealt with that way. But when we get into the drug recognition expert situation, these additional 12 steps and the things it can or can't show, this is where our section begins to lose its comfort level.

We think that additional study and scientific work is going to have to be done before we can use the same framework for drugs as we do for alcohol.

10:55 a.m.

Conservative

The Chair Conservative Art Hanger

Thank you, Mr. MacLeod.

The time is now about two minutes to 11. I know there was a breathalyzer reading, and I'm assuming you're going to share that with the rest of the committee?

11 a.m.

Chair, Alcohol Test Committee, Canadian Society of Forensic Science

Brian Hodgson

Oh yes, it's printed out. You can even have it in hard copy if you like.

His blood alcohol concentration on the beer he drank, which I think is the one bottle, was .013. It's way under 80, of course. The only problem with that would be if he happens to be a learner driver here in Ontario, where you're supposed to have a zero blood alcohol concentration. You'd be in trouble there; otherwise, it's a pass.

We tried the screening device and he got .011, which is an excellent correlation with the approved instrument. He then swished a tiny residue of beer in his mouth and I had him blow in the Intoxilyzer again and he got .036, which is more than three times what his true blood alcohol concentration is. So that's the effect of mouth alcohol on readings, and that was just a little bit of residue of beer, I believe.

Three minutes later we may still have some of that residue left, but if we wait 15 minutes after that first test, we're not going to have any of that residue left and he'll be back down to his true blood alcohol concentration, and that's the point we're trying to make.

11 a.m.

Conservative

The Chair Conservative Art Hanger

So the three-minute time span could give a false reading?

11 a.m.

Chair, Alcohol Test Committee, Canadian Society of Forensic Science

Brian Hodgson

Possibly, yes.

11 a.m.

Conservative

The Chair Conservative Art Hanger

I would like to thank the witnesses for appearing. I think Mr. Bagnell has a motion he wants to put forward. It has nothing to do with the witnesses.... It has everything to do with the witnesses, okay.

I'll give you the floor then, Mr. Bagnell.

11 a.m.

Liberal

Larry Bagnell Liberal Yukon, YT

I'll be really quick. I think, at least on this side, your evidence has been great. A lot of you didn't get a chance to talk, and we might have a lot more questions. I'm wondering if the committee would agree that these witnesses could come back—or let the steering committee look at that?

11 a.m.

Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

Yes, the steering committee can consider that.

11 a.m.

Conservative

The Chair Conservative Art Hanger

Mr. Moore, on a point of order.

11 a.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

Some of you weren't even here during the entire committee testimony, so I fail to see why we would—It's unprecedented that we would bring people back. I've appreciated the testimony and I think we got a lot from the testimony. Many of us were able to ask questions, but I don't see the need to bring back an entire panel of witnesses for a second hearing, which is unprecedented, in spite of the fact that we've had some tremendous and valuable testimony today.

11 a.m.

Conservative

The Chair Conservative Art Hanger

Yes, I confess that's true.

11 a.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

But I don't see spending time doing something else. While the witnesses were here, we were hearing testimony and some of the members opposite weren't here listening to the testimony and now they want to bring them back. I have a problem with that.

11 a.m.

Conservative

The Chair Conservative Art Hanger

I know some of them weren't here for a short time, but I know there were ample questions, and they heard all the testimony of these witnesses.

Monsieur Ménard.

June 12th, 2007 / 11 a.m.

Bloc

Réal Ménard Bloc Hochelaga, QC

First, with regard to inviting more witnesses, I do not agree that there is no such precedent. I have been here since 1993 and I can tell you that we have often invited witnesses to reappear. However, I would exclude the people from the Bar Association, since their testimony was extremely clear. With regard to the other witnesses, it is not the fact that their testimony was not clear. The fact of the matter is that you advise the department and you have the expertise to administer this technology. I think it is our responsibility to obtain more information.

We took advantage of the only opportunity we had to see how the tests were administered. To me, the difference between standard sobriety tests and roadside tests, which are available in police stations, is much clearer. I could not have obtained this information if I hadn't had the opportunity to see the demonstration at the back of the room.

In any case, there is no urgent need to put this bill to a vote. There are some problematic issues. The more witnesses we hear from, the more questions we have. So, I wholeheartedly support Mr. Bagnell's motion to call witnesses back, at least the scientists.

11 a.m.

Conservative

The Chair Conservative Art Hanger

Mr. Lee.