Justice Committee on June 14th, 2007

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order. It is Thursday, June 14, 2007.

The committee is continuing its examination of Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts.

Appearing before the committee as a witness is Corporal Evan Graham, national coordinator, drug evaluation and classification program, Royal Canadian Mounted Police. Thank you for attending again, sir.

From the Canadian Society of Forensic Science, we have Ms. Marthe Dalpé-Scott, co-chair of drugs and driving committee. I understand you are replacing Ms. Treacy.

[Marthe Dalpé-Scott, Co-Chair, Drugs and Driving Committee, Canadian Society of Forensic Science]

I'm replacing Shirley Treacy, sir. Actually, I was here as an observer on Tuesday. I was a co-writer of the position paper that Shirley submitted on behalf of the drugs and driving committee as well.

[The Chair, Conservative, Art Hanger]

Thank you.

I will turn the floor over to Corporal Graham, then.

I should get the thought of the committee here, unless you just wanted to get into questions. I know, Corporal Graham, that you have testified before. Do you have something new to add?

[Corporal Evan Graham, National Coordinator, Drug Evaluation and Classification Program, Royal Canadian Mounted Police]

There are a couple of things. One is that the legislation currently calls for the initial breath test to be done in an approved screening device—

[The Chair, Conservative, Art Hanger]

I'll leave you to enter into whatever information you have there, then.

[Cpl Evan Graham]

Okay. Thank you.

The approved screening device is designed for enhancing suspicion to reasonable and probable grounds roadside for breath demand. For the purpose of the drug evaluation, the instrument should be an evidentiary instrument that gives us a complete, full reading of the blood alcohol concentration of the subject, so that if in fact the blood alcohol concentration is over the prohibited level, we can proceed with a charge under paragraph 253(b) of the Criminal Code. It also would fall in line with provincial sanctions, which vary from province to province, regarding the blood alcohol concentration for roadside suspensions.

Other than that, I'm basically just here to clarify whatever needs to be clarified or to answer questions.

[The Chair, Conservative, Art Hanger]

Thank you, Corporal.

Go ahead, Madame Dalpé-Scott.

[Marthe Dalpé-Scott]

Yes, good morning, everyone.

I just want to clarify that for six years of my career I have been teaching future defence counsels and crown attorneys alike at the University of Ottawa in forensic sciences, and one of the most animated lectures is always to do with impaired driving, whether it's by alcohol or drugs. So what I'd like to straighten out over these next few questions, few hours, is a parallel situation that I see very clearly in my mind with respect to paragraph 253(b), which is impairment by alcohol over 80 milligrams percent, 80 milligrams of alcohol per 100 millilitres of blood. For that purpose, a police officer can make the demand, as Corporal Graham said, for an approved screening device at the roadside. That's step one. If that result or any other suspicion without that instrument leads to reasonable grounds that it was impairment by alcohol while driving, then a demand can be made for an approved instrument, most of the time at the police station, although we will have soon some instruments that can be done at the roadside as well.

The parallel to that situation is that there is no magical box to detect drugs at the roadside. There is nothing on the market that will, in the foreseeable five to ten years, give us that magical box. So what we have instead of the approved screening device is the standard field sobriety test. That gives the first set of tests to determine that there was impairment by alcohol and a drug, a combination of both, but the drug by itself then would be able to be detected. As you know, the current legislation does not allow for the detection, or the preliminary detection, of drug-induced impairment.

After the preliminary test is done, we have the standard field sobriety test for paragraph 253(a), impairment by a drug or combination of alcohol and a drug, and that parallels the approved screening device for alcohol for paragraph 253(b). Going down from there, we then have reasonable grounds to think that there was impairment by a drug, with the standard field sobriety test. There is a demand made then for the DRE protocol, a specialized police officer who will administer the 12-step test.

So that part of that law is similar to the approved instrument for alcohol. So far we have a complete parallel.

Where we add another step with the proposed legislation that the society committee is very much supportive of is the confirmation of the DRE call by a forensic laboratory. That's where people like me come in, with my staff of 50-some of the RCMP, and there are other laboratories in the country that can perform the analysis. We would confirm the findings of the DRE. If such confirmation did not take place, there is no support for the accusation of impaired by drugs.

So from there, I'm willing to answer any questions that could help clarify the legislation or what we're supporting.

[The Chair, Conservative, Art Hanger]

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

On that confirmation you just mentioned, one of the criticisms is that you can't tell impairment by the level of drugs. So what are you confirming? You're just confirming the fact that the drug is there.

[Marthe Dalpé-Scott]

The drug has to be from the family of drugs that the DRE officer determined during his or her observation was the source of impairment. There are seven families. So it is not anything we find...because believe me, we're very good at finding very minute amounts of drugs in our laboratories. What we're concentrating on is confirmation. If the police officer, the DRE, thought it was a particular type of drug that was causing the impairment, that is what we will confirm or invalidate, if that is the case. It's very objective.

[Larry Bagnell, Liberal, Yukon, YT]

The sense I got from the lawyers, the bar association, was that when you compare it to a breathalyzer, the DRE may have a harder time making it stand up in court. What are your thoughts on that?

[Marthe Dalpé-Scott]

The DRE is trained very systematically. I can pass this one on to Corporal Graham and he can reassure you how they are trained.

Please.

[Cpl Evan Graham]

When we entered the program in 1995, we anticipated, obviously, problems in court. Since that time, we've had convictions in virtually every province. We've had the courts declare the evaluator as an expert in the process, symptomatology, and determination of the drug category. It hasn't proven itself to be a problem in court, and in fact, of all the cases that have gone to court, none has ever gone to appeal.

So my take is that we're doing something right, because we haven't had anything appealed yet.

[Larry Bagnell, Liberal, Yukon, YT]

And with those convictions, was there a blood test involved as well, to collaborate?

[Cpl Evan Graham]

For the most part, we've been using urine. The problem with blood is that we don't have medical practitioners or medical personnel on site in the vast majority of the lock-ups where we do the testing, so as a result we'd have to take the person out of a secure facility, and take them to a hospital to get the blood test done, where it wouldn't be a priority.

As a result, we've been using urine or oral fluid.

[Larry Bagnell, Liberal, Yukon, YT]

So these convictions were based on the three steps: the roadside, the DRE, and the urine test. And in virtually every province, you said?

[Cpl Evan Graham]

That's right. I believe the only province where we haven't had a conviction is Quebec, and that is because there hasn't been a case go to court with the DRE yet.

[Larry Bagnell, Liberal, Yukon, YT]

Which were the drugs involved?

[Cpl Evan Graham]

Primarily we're looking at prescription drugs, prescription pain killers such as oxycodone, codeine, and morphine. Cannabis is very prevalent, as well as the central nervous system depressant category or family of drugs.

But driving-wise, what we've not seen a lot of are inhalants, dissociative anesthetics, or hallucinogens.

[Larry Bagnell, Liberal, Yukon, YT]

So most of the drugs, or a good proportion of the convictions, were on legal drugs.

[Cpl Evan Graham]

Prescription drugs, yes, either over the counter or by prescription.

[Larry Bagnell, Liberal, Yukon, YT]

And did all these convictions involve bodily injury?

[Cpl Evan Graham]

No. Some were straight driving, some were bodily injury, and there were some as a result of crashes where fatalities were involved.

[Larry Bagnell, Liberal, Yukon, YT]

So there weren't very many of the hard drugs like cocaine and the ones harder than that?