Justice Committee on June 14th, 2007

[Cpl Evan Graham]

To be honest, I'm not sure. I can check with some of the crowns who have dealt with them. B.C., in particular, would have an idea, but I can't say for sure.

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

Do you know how many cases have gone to trial in Canada?

[Cpl Evan Graham]

I know that over two dozen of the trained officers have been declared experts by the courts. Overall, and I'm guesstimating here, 150 or so would have gone to trial.

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

Could you make an inquiry and let the clerk of the committee know, one way or the other, if there have been any reported decisions? What I'm looking at, in particular, is whether we have any analysis from the judiciary on the DRE process, all stages.

With regard to the training, Corporal, I think there's been some criticism of its adequacy, and I think a newspaper article was critical of the training and I haven't been able to find it. I don't know if that was restricted to what we're doing in Canada or internationally. Have you seen any criticisms? Is there additional work we should be doing around training our officers?

[Cpl Evan Graham]

I don't think so. I believe the article you're talking about was out of Edmonton last November.

Part of the training is testing people who are under the influence of drugs, and after a course in Edmonton last November, we partnered with the Métis Child & Family Services Society in Edmonton, whereby they had volunteers who are drug users come in under the influence. They were told in advance that we obviously don't condone drug use, but if they're going to use it anyway and want to help us out, we'd be pleased to have their assistance, but also that if they came in with drugs on their person, they would be dealt with according to law.

A reporter picked up the story and didn't have all the facts and reported it, and as a result, we had an interesting day. But that story died off very quickly. We've been back at that same facility three or four times since then, and it hasn't been an issue

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

In the training program we've put our officers through, are there any proposals to change it, upgrade it, or anything like that, or is the same educational program being used right across the country now?

[Cpl Evan Graham]

This program is being used right across North America. It falls under the auspices of the International Association of Chiefs of Police. They have a drug recognition expert section which, in turn, has a technical advisory panel. The technical advisory panel is composed of police officers, members of the bar, toxicologists, physicians, and ophthalmologists.

So we have subject matter experts to make recommendations to change the program, and every two years the program undergoes some changes. So it's constantly being made better as new technologies or new evidence comes forward to warrant a change.

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

Those are all the questions, Mr. Chair. Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

I have a question on the process. A police officer stops an individual, who gives every appearance he's impaired by alcohol. He's given the roadside test, which indicates he's got alcohol in his system, and he's brought to the station and he's put on the Intoxilyzer—

[Cpl Evan Graham]

Intoxilyzer or DataMaster, yes.

[The Chair, Conservative, Art Hanger]

—and he blows twice the limit. The officer feels the individual might have drugs in his system; can he carry it that next step?

[Cpl Evan Graham]

He could, but there's really no point in doing so. If we have the evidence for a charge under paragraph 253(b), being over 80 milligrams percent, then there's no need to go through the drug evaluation.

[The Chair, Conservative, Art Hanger]

So that same scenario, but a bag of weed is found in the car, and he gives the appearance of alcohol in his system, possibly in combination with the marijuana. Is it the same scenario?

[Cpl Evan Graham]

Yes, as long as the person's blood alcohol concentration is over the legal limit, we would go with the alcohol impaired driving charge.

The only way we wouldn't is if the blood alcohol level is either right at the 0.08 or 80 milligrams percent, and that's just because the courts have a hard time accepting 80 as the actual number for charging, or if the end issue was so grossly inconsistent with the blood alcohol concentration.

[The Chair, Conservative, Art Hanger]

So it's going to be a judgment call on the part of the officer to decide whether or not he wants to carry it further—or who, the DRE?

[Cpl Evan Graham]

Again, if it's over 0.08 they generally go straight to it. If it's close or borderline, then it would be either the officer—if he's had some training in drug impairment—or the DRE who would make that call, yes.

[The Chair, Conservative, Art Hanger]

Monsieur Petit.

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

Thank you.

Thank you for coming, Mr. Graham. I was able to consult a document that was sent to us and is entitled, “The Development of an Evaluation Framework for the Drug Recognition Expert Program”. That was presented to the Royal Canadian Mounted Police, and it was Douglas Beirness, who came and testified before us a few days ago, who presented it.

First, I'm very pleased because this document describes the steps for us. I am a lawyer, I previously worked on cases of this type, and I find this excellent. At least I understand. Even though I am on the government side, I was afraid that, at the roadside, because that's where most defences are developed... You remember that, in the case of the breathalyzer test, when the police officer had a suspicion, he arrested the individual. You know as well as I do that, in the case of certain tests, which are now called standardized sobriety tests, the Supreme Court held that, if the person arrested was not warned, the tests could not be used to incriminate him because it did not want him to incriminate himself. You know the rule that you cannot incriminate yourself.

The question I ask myself concerns the sobriety test. When you are at the roadside, there is a suspicion. A police officer asks the person to stop. The officer has to gather evidence gradually in order to continue the effort to take him to the police station. He doesn't know at that point whether it's alcohol or drugs. All he knows is that there is an indicator or a suspicion of impaired faculties. Naturally, it's easier in the case of alcohol, because the police officer has in his car a device called a Dragger into which he has the person breathe. If the device indicates fail, he takes the individual to the police station for more tests. Naturally, we know that, if that's what the police officer does, there won't be any problem because we know the sequence in the types of alcohol levels.

Mr. Ménard's question is very relevant. In the case of drugs, is the sobriety test administered at the roadside, like those I've previously known? The citizen is asked to get out of his car, the police officer stands behind him to see if he is staggering or if he smells alcohol directly, but the car's interior may smell of alcohol. After that, there are certain tests—Mr. Ménard said that—such as putting one's finger on one's nose, etc. Is that in fact what you prefer so that your suspicions gradually give you the opportunity to move toward the 12 steps? That's at the roadside. You must understand that, in Quebec, like everywhere else in Canada, it's not easy to conduct the roadside walking test at -30 degrees Celsius in the winter. You're beside Highway 20, you're having trouble, the roads are not completely straight. A good lawyer could overturn your case right away. The point is to clearly understand whether that's what you mean when you talk about standardized tests. Are you talking about those that I am familiar with—perhaps there are others—that you conduct for alcohol when you don't have a Dragger in your car? You say: “Walk, heel to toe, etc.” Is that what you're talking about when you refer to roadside tests?

[Cpl Evan Graham]

Yes, it is. The tests are done roadside to elevate suspicion to reasonable and probable grounds.

As far as the Supreme Court ruling on whether or not it's incriminatory is concerned, if we're using it just to elevate the suspicion to grounds for a breath demand, we're not required to provide the charter warning. If we're trying to equate what we're seeing with a level of impairment, then the person has to be given the right to counsel, because it become incriminatory or self-incriminatory.

Weather-wise, it's certainly an issue in Canada, because of our climate. But of the studies done in the United States, one was done in Colorado year round. So they ran into exactly the same problems we'd run into here with snow, uneven road surfaces and inclement weather. And despite the poor weather conditions on some nights, the tests were still validated; they still showed that they worked.

And again, we're talking about elevating suspicion to reasonable and probable grounds for a breath demand. If the person comes back and either blows under the legal limit or there's no alcohol involved at all, then the person would be released.

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

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you.

Madam Jennings.

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

Thank you very much for your presentation. I think it's quite clear.

I want to go back to something. You've explained the road sobriety test; you've explained the DRE. What I would like to know is, clearly, if an officer sees a car in motion, and it's weaving or it's gone through a stoplight or it hasn't made a complete stop when turning a corner, then that could raise suspicions that possibly the driver is impaired. However, there are many occasions where the driver is actually stopped for a completely different reason—for example, the licence plate has not been renewed, a tail light is broken—what most people would consider to be a minor infraction.

At that point, the police officer has no reason to believe that the individual who's behind the wheel is impaired; however, things could happen while the officer is conducting his normal police routine, which is getting the licence, the driver's permit, the car registration, in order to fill out the ticket, and at some point he may become suspicious that the driver is impaired.

Unless we're talking about the individual being stopped because of the actual way in which the car is being driven or because a call has come in saying, “I saw a car weaving”, or whatever, if the car has been stopped for nothing to do with impairment, on what basis would a police officer be legally permitted to ask the driver to step out of the car and to submit that driver to the road sobriety test, first, under alcohol, and second, under the case of suspicion of drug impairment or some form of impairment?

[Cpl Evan Graham]

The Supreme Court of Canada has ruled that although arbitrary stops are a violation, the police have the authority to stop a vehicle to check vehicle fitness and driver fitness at any time. That really falls under the scenario you're giving, that we've stopped a person because of a licence plate you can't read, or it's just a simple road check where we're running vehicles through, but by the time the person gets to you, they may have been twelfth to thirteenth in line, and we'd have no driving evidence.

If we have some kind of suspicion that the person may have consumed alcohol—and that actually goes back to another Supreme Court ruling. During the road check the common stuff we do is pull somebody over, and when they come up to you, ask them, “Have you been consuming alcohol tonight?” If they admit to consuming alcohol, we ask them a few more questions, and if during that conversation we feel that a person should be checked to see if they're fit to drive, we have that authority to do so.

Again, it's on a voluntary basis currently.

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

Yes, but my question is not when you're doing a systematic roadside check operation. We see that a lot, like before the Christmas holidays. I'm talking about when the SQ or the QPP are patrolling highway 40—that's normal—and they see a car with a broken tail light. Correctly and legally, they intercept the car and ask for the driver's permit and registration for the car in order to issue a citation, a warning, whatever, and at some point they decide to conduct a roadside sobriety test.

What would give rise to sufficient suspicion on the part of the officer to legally permit him to do that?

[Cpl Evan Graham]

It could be something as simple as the odour of alcohol on the person's breath or coming from the vehicle, empty containers.