Justice Committee on June 14th, 2007

[Cpl Evan Graham]

No, I don't. I think Bill C-32 will make the roads safer for the vast majority of people.

If it goes to court, will it be deemed to be a violation of their rights? Probably, but one that I hope would be acceptable, just the same as a breath test is. Because really all we're doing with the drug evaluation is paralleling the evidence that we gain through a breath test, the difference being that instead of using an instrument to obtain a breath sample for the blood alcohol concentration, we're using a trained police officer to gain the evidence of drug impairment.

[Myron Thompson, Conservative, Wild Rose, AB]

I agree with that scenario, but my biggest fear is the cry from that group of individuals who always seem to make a very loud noise about the rights of the second driver—for example, in my scenario—versus the rights of the deceased. I'm really concerned about that whole scenario, and I want a bill that would strongly indicate that it's essential that these tests take place whenever there's the slightest reason to believe they should be.

[Marthe Dalpé-Scott]

On this question of yours, sir, perhaps I may add something about this fear that somebody in the public could be wrongly accused of anything. As a professional forensic toxicologist for 23 years, I can assure you that.... Mr. Ménard started this line of questioning, and we never got to finish the third step, which was the lab.

If a person had smoked marijuana, but the police officer DRE did not suspect that category being marijuana, or cannabis, the lab, if they happen to find residual marijuana metabolites—breakdown products in the urine—cannot support anything just by the sheer findings. What I am saying is that the observation of impairment, the symptomatology, the clinical symptoms, and the corroboration in the lab by very highly specialized instruments all have to fall in line. So it is not every incidental finding of a pharmaceutical preparation or an illicit preparation; it has to be consistent completely with the physical symptomatology that was observed by the DRE.

There was a concern, Mr. Ménard, and I just want to assure you that it's not because we can find everything under the sky that is a cause for impairment. The lab is only corroborating what is observation. It may not be as strong as what you're wishing for, sir, but I can tell you that we don't go beyond simply supporting or refuting the findings put to us at the lab.

[The Chair, Conservative, Art Hanger]

Thank you, and thank you, Mr. Thompson.

I have one question on RCMP policy, and I thought this was generally a point across all police agencies in the country. Are there not strong policies or requirements in place that wherever there's a fatality tests are taken right around?

[Cpl Evan Graham]

No, there is not, actually. The coroners will do testing of persons who are deceased. We look at any fatality or serious crash to try to get as much evidence as we can to see if in fact there is some impairment or what the cause of the crash is, as we would with any investigation. But to say that there's a policy that we can actually test people—we still have to fall under the Criminal Code, and in order for us to go forward with an impairment investigation, there have to be some indicators that the person may be impaired. And that may be something as simple as having a paramedic say they smell liquor on the person's breath or that when they were putting them in a gurney they found illicit drugs on them. If we can tie any indicia into that to corroborate it, that enhances our investigation and we can go forward, but if there's nothing, unfortunately our hands are tied.

[The Chair, Conservative, Art Hanger]

In an ideal world, how long would it take, after a police officer brought a suspect before the DRE, to have all those tests done?

[Cpl Evan Graham]

The tests should take no more than 30 minutes. It may be up to 45 minutes, depending on the physical condition of the person, but it's not an overly long process. We can go from start to finish in a little over half an hour.

[The Chair, Conservative, Art Hanger]

In a rural area you might stop a driver; it might take half an hour to drive to a station, with the anticipation that the DRE is going to be free, and you have to have all this done within a two-hour period.

[Cpl Evan Graham]

No. The demand will have to be made within a set period of time; the actual evaluation will be like a breath evaluation. We've got two hours to get it done. There are more factors than that, even for delays. Obviously right to counsel is what we find to be the biggest problem hindering investigations, or holding them up.

Availability of somebody to do the evaluation is probably going to be the biggest impediment we have. Capacity right now is an issue. Since we're still a relatively young program, we're going to be facing that for a couple of years, but eventually we should be in a position for it not to be as major an issue.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Dykstra is next.

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

I wouldn't mind getting your opinion on one of the points that we're trying to come to a conclusion on; it's the whole issue around the drug impairment and the ability to define at a certain point in the beginning of the process if there is a concern around whether the individual is impaired to the point that they shouldn't be driving a vehicle. From an experience perspective, you mentioned earlier that there certainly have been times when officers have definitely felt that and have gone through the process based on that suspicion.

How does that process work in terms of, in the past, being able to say we get 60% or 70% of the...? You have determined and confirm that the individual definitely had an amount of drug in their system that did definitely impair their ability to drive. Were they actually then convicted?

[Cpl Evan Graham]

Of all cases going to court using the DRE protocol, in only two that I'm aware of have we not registered a conviction. In both cases it was not issues related to the evaluation that caused the case to be lost, but charter arguments. That said, we've been judicious about which cases go to court. We know they're going to be fairly solid, because we don't want that case lost. But overall we've had very good success in court.

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

Would Bill C-32 give you the tools you need to be able to take that side of this issue to the next level, in terms of being able to feel more comfortable and also to feel you have the tools within a piece of legislation that allow you to proceed on a more regular basis with individuals you believe are impaired based on their intake of a drug?

[Cpl Evan Graham]

Very much so.

We currently are running into a problem, particularly in British Columbia, because we've had the program there for so long. The person speaks to a lawyer, gets off the phone, and says, “I'm not doing this.” Basically B.C. is fortunate in that they've got a 24-hour prohibition for suspected drug usage, but they walk. They can be grossly impaired, but if we can't prove what the impairment is, our position for laying a charge is very difficult.

This legislation would make the police job a whole lot easier with drug-impaired drivers. Quite frankly, I sit on this technical advisory panel of the IACP, and if this legislation passes, we'll be the envy of every agency involved in this program, which is basically every state.

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

Thank you very much.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Dykstra.

Mr. Moore is next.

[Rob Moore, Conservative, Fundy Royal, NB]

That's fine, thanks, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Mr. Bagnell, go ahead.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

Following up on Mr. Thompson's question, wouldn't the fact that the guy ran into the car in front of him be enough evidence to suggest that there might have been a problem?

[Cpl Evan Graham]

That's not necessarily so. He could have had mechanical failure, or it could have been driver inattention—talking on a cell phone, daydreaming, falling asleep. You don't know.

To parallel it in court, when I was doing impaired drivers on a very regular basis and mentioned watery bloodshot eyes, the first thing that came out of the defence was a question about how smoke could cause watery bloodshot eyes, or how being tired could cause watery bloodshot eyes, or how allergies could cause watery bloodshot eyes. The answer is that certainly a whole lot of things can cause watery bloodshot eyes; by itself it's just a clue, but if you tie it with everything else, then it becomes a building block that allows us to go forward with a charge.

[Larry Bagnell, Liberal, Yukon, YT]

The bar association suggested that what should be added to the process is mandatory filming. Do either of you have any comment on that?

[Cpl Evan Graham]

I think it would be a nightmare. We have videos that we use for training, and the problem we have with those is that we're talking about a two-dimensional view. For example, with the walk and turn, if the camera is behind the subject, you can't see if the person actually touches their heel to toe. If you put the camera so you can see the heel to toe, you can't see if they are looking at their feet, what their arms are doing. You have to have a cameraman following the subject, and multiple angles, in order to capture everything that we're gathering during the evaluation. At roadside, I've worked with the in-car cameras in the past, and they don't pick up very much because of the angle they're placed at. In a police station, there are so many things you're not going to see. You'd actually miss more than you'd capture. Then you run into the keeping of the videos, where the video is edited, because of course they'll be digital now with the technology. Many police departments simply could not afford to go with that technology.

In theory, it's a nice idea, but overall, the reality is very impractical and I don't think we'd gain anything. In fact, I believe we would have far more questions from trying to watch a video than we would have answered by seeing that same video.

[Larry Bagnell, Liberal, Yukon, YT]

On the DRE, you pointed out that all people aren't the same. I imagine an elderly person may have a hard time—I'm not sure if I would—standing on one foot for 30 seconds, or walking heel to toe in a straight line. Is that taken into account in these types of tests?

[Cpl Evan Graham]

It is. During the validation studies for alcohol, the parameters were age 65 and more than 50 pounds overweight. That was simply because they didn't have anybody over age 65 and nobody who was more than 50 pounds overweight participating in the validation studies.

With the alcohol workshops that we have done over the years, we've had people who are far older than 65. We've had people who are much heavier than 50 pounds overweight. The tests still work. There will be individuals who can't do them, even though they would fall under what would be the normal parameters, where they're fit, but for whatever reason they can't stand on one leg. When you look at these as being used to elevate suspicion to reasonable and probable grounds, the fact that somebody can't do one test is not a big issue. Overall, the general population can do them. But the mere fact that some individuals may not be able to simply means we'd have to do something else if we believe the person is impaired.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.