Justice Committee on Oct. 18th, 2016

[The Chair, Liberal, Anthony Housefather]

I call the meeting to order.

I'd like to take this opportunity to welcome everyone to this meeting of the Standing Committee on Justice and Human Rights.

Today we're studying Bill C-247, an act to amend the Criminal Code (passive detection device). The sponsor, Mr. Sikand, is here today to testify, along with Markita Kaulius, who is the president of Families For Justice. It is a pleasure to have you here.

It's also a pleasure to welcome Mr. Di Iorio and Mr. Warawa to committee. I see them both here today.

We are going to begin. As you know, cumulatively, you have about 16 to 20 minutes to speak. I know, Mr. Sikand, you're going to speak for a little less time and Ms. Kaulius is going to speak for a little longer. Please proceed.

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

Thank you, Mr. Chair, for having me here today and for considering Bill C-247.

I would like to start by discussing the impetus of this bill. Unfortunately, a teacher in my riding lost his life at the hands of a drunk driver. Shortly after I was elected, a constituent of mine asked me to do something to address this.

It should be noted that impaired driving is still the leading cause of criminal death in Canada. Besides being a concern in and of itself, Canada ranks poorly to similar jurisdictions with these rankings. This also has a demonstrable economic cost associated to it, some $20.62 billion.

This bill is made up of two parts. The first is to authorize the explicit use of passive alcohol sensors. The second is to change the criminal offence of impaired driving causing death and driving with a blood alcohol concentration over 80 milligrams to vehicular homicide as a result of impairment.

Speaking to the first aspect, passive alcohol sensors are classified as passive instruments because they do not require the driver to perform any act such as blowing into a mouthpiece. These devices, often shaped as a baton or fitted into the end of a specially designed police flashlight or a clipboard, detect the presence and approximate amount of alcohol in a driver's exhaled breath by sampling the ambient air near his or her mouth.

I am aware this may raise questions of whether the passive will react to a driver who perhaps has spilled alcohol in the vehicle, but studies have indicated that the possibility of passives detecting alcohol from sources other than the driver is unlikely. The passive works best when held six inches from a driver's mouth, which would ultimately decrease the likelihood of detecting alcohol from another source.

Furthermore, the greater the distance between the passive and the source of alcohol, the more diffused the alcohol will be in the ambient air. Therefore, it is unlikely that alcohol from another source would be detected. If it is, the reading wouldn't be high enough to warrant further testing.

Finally, the concern about alcohol from a source other than the driver is equally applicable to the current practices. An officer who detects the odour of alcohol coming from inside a vehicle cannot necessarily identify its source. However, research suggests that police using passives are better at detecting alcohol and determining its source than police using only their unaided senses.

It should be mentioned as of late and due to advancements in technology that this is also a feature built into the approved screening devices peace officers already have. The second part of the bill was introduced as Kassandra's law, named after Kassandra Kaulius. I would like to bring to your attention that Markita is here with Families For Justice, but she is also Kassandra's mother.

By calling the offence a homicide, I believe parliamentarians will be sending the strong message that taking someone's life while impaired is reasonably foreseeable and can never be condoned. The current offence stating that death is caused after having been impaired implies less culpability on the driver's part. It suggests a degree of accidental consequence.

I am by no means suggesting that these drivers intended to take someone's life. However, by virtue of their having a licence, I am able to assume that drivers are rational drivers. It is legitimate to believe that rational drivers are aware that impairing their motor skills will put the safety of the general public into question.

Before concluding, I would like to address the constitutional validity of the bill. Any concerns arising regarding the possible infringement of section 8 of the Charter of Rights and Freedoms, having the right to be secure against unreasonable search or seizure, have been taken into account in the creation of this bill. Our courts have consistently identified driving as a licensed and heavily regulated activity occurring on public roads. Therefore, a driver's expectation of privacy may be infringed or curtailed.

In R. v. Smith it was recognized, albeit a challenge under section 7, that the expectation of privacy must be assessed in regard to the nature of the activity:

Driving is a heavily regulated activity.... The police's goal is to catch the drinking driver at the roadside and not at the scene of the accident. Drivers expect to be stopped and questioned by the police concerning matters relating to the operation of their vehicles. That expectation is part and parcel of the privilege of operating a motor vehicle.

Furthermore, it could be argued that the use of a passive alcohol sensor does not constitute a search, as courts have recognized that police have common law and express statutory authority to inspect a driver's documents.

That concludes my opening statement. I would like to mention that MADD Canada and my local police chief have both endorsed this bill as well.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Sikand.

Ms. Kaulius, the floor is yours.

[Markita Kaulius, President, Families For Justice]

Dear honourable members of the justice and human rights committee, thank you for inviting me here today.

My name is Markita Kaulius, and I am the president of the Families for Justice society. Families for Justice is a non-profit organization made up of parents, family members, and supporters who have all had a child or loved one killed by an impaired driver in Canada.

My 22-year-old daughter, Kassandra Kaulius, was killed by an impaired driver on May 3, 2011. She was killed in a catastrophic collision, and was T-boned and crushed to death. She was struck on the driver's side door at 103 kilometres per hour by an impaired driver speeding through a red light at an intersection. My daughter was driving home after coaching a softball game and had the right-of-way to make a left turn. Kassandra lost her life because an impaired driver made the choice to drink and drive while being impaired. My world and that of my family was changed forever.

Impaired driving is the number one criminal cause of death in Canada, and every year impaired drivers leave a terrible trail of death, destruction, heartbreak, and injury. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. When it comes to the deaths and serious injuries resulting in hospitalization, impaired driving is clearly the crime that causes the most significant social loss to our country.

Research shows that drinking alcohol is the third highest factor for global disease in 2010, moving up from being ranked sixth in 1990.

When health and social costs for deaths, injuries, and damage are totalled, the costs related to impaired driving, including with alcohol and drugs, were estimated at over $20.6 billion a year in 2010 alone.

Among psychoactive drugs, alcohol-related disorders were the top cause of hospitalization in 2011. Globally, alcohol was linked to over three million deaths in 2012, slightly more than lung cancer and HIV combined.

The numbers of impaired driving incidents have fluctuated over many years, reaching a low of more than 76,000 incidents in 2006, before increasing again to a high of more than 86,000 in 2009. More recently, the number of reported impaired driving incidents was more than 72,000 in 2014.

Over the last 30 years, we have had education and awareness campaigns through advertising to educate the public, yet we still continue to see impaired driving as the number one criminal cause of death in Canada. On average, we're losing the lives of 1,250 to 1,500 people per year in Canada. On average, over 60,000 people are injured in a crime that is 100% preventable.

These figures work out to the deaths of four to six people a day, and 175 people injured each day. The destruction to families is life changing and permanent. Many families never recover from the loss of their child or loved one.

The proposed legislation responds to serious consequences expressed by various law enforcement agencies, experts, and victims organizations, including Families for Justice, who have been urging the government to improve law enforcement's capacity to detect drug- and alcohol-impaired driving.

While this legislation is important for the passive detection device, there is compelling evidence that illegal drug use and impaired driving results in impaired cognitive function, slower reaction times, difficulty concentrating, drowsiness, disoriented feelings, difficulty judging distances and making decisions, problems staying in one lane, greater difficulty maintaining a constant speed, and in having an increased collision risk. Under the current legislation, the Criminal Code does not grant the police the authority to obtain bodily samples from drivers, unless a police officer has reasonable grounds to suspect that a driver has consumed alcohol.

A passive detection device could detect alcohol in the ambient air, which would allow officers to use a non-invasive procedure to test for the presence of alcohol by simply placing the device near the driver's face when he or she is speaking. This new method would not only empower police officers to better identify impaired drivers, but it would also have a deterrent effect and play a major role in reducing the number of impaired drivers who are choosing to get behind the wheel after drinking, despite the laws and deterrents that are already in place.

Drug-impaired driving is also a growing problem that largely goes unreported because of the lack of roadside measurement devices. Of all impaired driving charges, 97% are for alcohol and only 3% are for drugs. The situation will become more catastrophic if and when marijuana is legalized.

There need to be limits set on intoxication similar to those with alcohol. A 0.08 blood limit in alcohol is well known and is recognized in science-based evidence. This does not exist for marijuana. Alcohol and drugs can affect drivers' safety by impairing vehicle control and judgment. The police need consistent, strong, and fair enforcement measures to ensure that the increased use of alcohol and drugs does not impact road safety. Drivers who get behind the wheel while being impaired put themselves and everyone else at risk.

According to the Canadian Centre on Substance Abuse, in 2010, nearly as many drivers died in road crashes using drugs, at 34.2%, as those who had been drinking, at 39.1% .

In Canada, in 2012, there were 614 road fatalities where drivers had drugs present in their system, compared to 476 fatalities where alcohol was present. A change to the Criminal Code would allow the use of approved roadside screening devices to ascertain the presence of alcohol in the body of a person operating a vehicle. Currently, there are devices used in Australia and the European Union countries where police use roadside oral drug screening tests to detect the presence of drugs.

Drug-impaired numbers are under-reported because of the limited tools available for law enforcement to quickly detect the presence of drugs in the body. This leads to drug-impaired drivers often bypassing tests due to the inability of drug recognition experts, time restrictions on the tests, and second-guessing the presence of drugs in a driver, all leading to under-reporting of drug-impaired driving.

Roadside oral screening detection devices offer objective and time-efficient alternatives for the most commonly used illicit drugs.

Senator Claude Carignan has recently brought forward Bill S-230 for the addition of a drug detection device to aid the police in their duties in detecting drug-impaired drivers. This bill amends the Criminal Code to authorize the use of approved screening devices, as well, to detect the presence of drugs in the body of a person who is operating a vehicle or who had care and control of a vehicle. It also authorizes the taking of samples of bodily substances to determine the concentration of drugs in a person's body based on physical coordination tests and the results of analysis conducted using an approved screening device.

Adding a drug recognition device would also allow samples of bodily substances, be it oral fluid, blood, or urine, as required, to be taken to determine the amount of a drug in a driver's system based on the analysis with an approved screening device.

I wanted to mention that recently there were two very high-profile cases in the news where four members from two separate families were killed by impaired drivers.

On September 27, 2015, the Neville-Lake family from Vaughan, Ontario, lost their three children, Daniel, age 9, Harrison, age 5, and Milly, age 2, along with their grandfather Gary Neville. His wife and mother-in-law were seriously injured.

On January 2, 2016, the Van de Vorst family from Saskatoon, Saskatchewan, lost their son, Jordan, and his wife Chanda, and their two grandchildren, Kamryn, age 5, and Miguire, age 2.

Both families were wiped out by impaired drivers who were twice over the legal limit to drive.

Sadly, many impaired drivers know there is still a chance they will not get caught when driving impaired and they continue to take a chance, get behind the wheel, and risk their own safety, and the safety of other drivers and pedestrians. The deterrent effect of the passive detection devise, as proposed in Bill C-247, would possibly prevent these types of collisions.

The impaired drivers in each of those collisions received a sentence of 10 years, which sounds like a long time, but that equates to about two and a half years per person's death. Take time off for good behaviour and early parole, and out of that 10-year sentence they will actually serve about two years or less for killing four people in each family. That works out to about six months in jail served per death.

On average, convicted impaired drivers are being given a two- to three-year sentence for causing a death in Canada, but the reality is the actual amount of time being served is a mere five to nine months out of a two- to three-year sentence. These types of sentences let Canadians know that they can drink and they can drive while being impaired, and if they kill someone in Canada they'll only receive a minimal sentence for taking an innocent life.

Admissions to provincial sentenced custody for impaired driving are more likely to be intermittent sentences than admissions for other offences. The most common sentence was the payment of a fine. About one in 10 received a prison sentence with a median of 33 days. That's all. Of all admissions to provincial sentenced custody for impaired driving, about four in 10 were sentences to be served intermittently. An intermittent sentence allows the person sentenced to custody to serve their sentences in separate time periods, usually on weekends. About four in 10, roughly 41% of admissions to provincial sentenced custody for impaired driving in 2010-11 were intermittent sentences, compared to 15% for all other offences.

Correctional Service Canada, which is responsible for inmates sentenced to two or more years of custody, reported just 70 admissions for impaired driving for 2010-11. This represented about 1% of all the admissions to sentenced custody to Correctional Service Canada.

Over the last five years we have seen sentences of anywhere between one day in jail, a $1,500 fine, to seven weekends in jail, to 90 days to be served on weekends only. All of these sentences were given out to people who were convicted of impaired driving causing a death. With criminal sentences like these, they sadly have become case-setting precedents for future court cases. These are absolutely no deterrent.

We believe that if a death is involved, there should be a minimum mandatory sentence of six years for causing a vehicular homicide. Those who lost their loved ones were given a lifetime sentence of being without their children and loved ones. The people who died were given a death sentence. The impaired drivers who caused these deaths are only serving a few months in jail for taking the lives of innocent people and changing the lives of families forever.

Currently in Canada, if you're convicted of causing the death of another person by using a gun or a knife, you will receive a jail sentence of seven to 10 years. Why are people who are killing someone by impaired driving serving sentences of so much less? Many vehicles in the hands of an impaired driver become a lethal weapon. A speeding vehicle in the hands of an impaired driver is like holding a 2,000-pound to 3,000-pound weapon between their hands, and a vehicle driven by an impaired driver does far more damage than a knife or a gun ever would.

These are no accidents. There are no accidents. These are collisions. Accidents happen due to mechanical failure or weather conditions. Impaired driving is a choice made by reckless individuals who make the decision to put others at risk on our roadways. What is required now is the modernization of our existing impaired driving laws, where those who commit these crimes of impaired driving causing collisions which result in injuries or deaths of innocent people will be held accountable for their actions.

Families For Justice have submitted over 117,000 names on a petition to the federal government of Canada. The petition is signed by Canadian citizens who are asking the government to implement tougher new impaired driving laws. In speaking with thousands of Canadians over the last five years, they also want to see longer prison sentences given out, based on the severity of the crime. We hope through tougher impaired driving laws this will be an added deterrent for the public. It will let Canadians know that if they choose to drink and drive and they cause a collision while being impaired, they will be held accountable for their actions and there will be serious consequences.

Bill C-247 also renames the offence of impaired driving causing death as “vehicular homicide as a result of impairment”. This bill calls the crimes what they truly are, vehicular homicides. A conviction should reflect the seriousness and the risks that accompany the decision to get behind the wheel, while preserving judicial discretion for judges.

There have been various transportation-related provisions to the Criminal Code that have been developed over many decades in response to specific incidents, scientific advances, and court decisions particularly relating to impaired driving. This approach has resulted in some of the inconsistencies, such as how offenders are sentenced following the conviction for impaired driving.

While some reforms have strengthened measures to combat impaired driving, they have also added to the complexity of the Criminal Code, which has affected the efficiency of investigations, prosecutions, and sentencing.

The proposed legislation would amend the Criminal Code to resolve inconsistencies and increase certain penalties to reflect the seriousness of the conduct.

Families for Justice supports the passing of Bill C-247. I hope everyone will support this bill. I recognize the need for the committee to assess the practical implications of this change to the law to ensure that the bill achieves its policy goals and ensures clarity in the Criminal Code.

We believe that police officers need to be given added tools to do their job and assist them in being able to keep Canadians safer and impaired drivers off the road. We believe that the initiative, which would increase the safety of our roads through a non-invasive procedure, should move forward.

Bill C-247, an act to amend the Criminal Code of Canada, stands before you. It is an extremely important bill and you have the opportunity to make one of the most important decisions on the future laws of Canada. Bill C-247 will address the scope of the law and ensure that you not only have concrete laws against impaired driving, but also practical and effective ways of implementing those laws.

Today I urge each of you to look at what you can do to make communities in Canada safer. People deserve the right to their life and to get home safely at the end of the day without the worry of being hit by an impaired driver or killed.

In the interest of public safety for all Canadians, I ask that you support Bill C-247 and implement the passive detection device, as statistics show that we need tougher impaired driving laws in Canada.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Sikand and Ms. Kaulius.

Ms. Kaulius, on behalf of all of the members of the committee, I want to extend to you our deepest condolences and sympathies on the loss of your beautiful daughter.

[Markita Kaulius]

Thank you.

[The Chair, Liberal, Anthony Housefather]

One of the things that I think you will find when you come to Parliament is that people from different parties may have divergent views on certain things, but we all share many common goals. Certainly one of those common goals is ensuring that drunk drivers are properly punished and that we avoid drunk driving as best as possible. I think you can find that all members of the committee share your goals.

Certainly all of us share in the sympathy that we have for you and all families that lose children and family members to drunk driving. We have with us Mr. Di Iorio, whose daughter was very seriously hurt in a drunk driving accident, where a beautiful girl spent a couple of years really trying to get better. He has gone through that, so we all share in that view.

[Markita Kaulius]

Thank you. I think one of the most important things is that, until you're forced into this situation, you have no concept of how prevalent this is and the magnitude of what it does to families. There are thousands of families every year being affected by impaired drivers and losing their loved ones. It is a crime that is 100% preventable. I know we have laws in place, but they are still not working. Deterrents are needed.

[The Chair, Liberal, Anthony Housefather]

Understood. We have two laws, Bill C-226 and C-247, that are now being studied on that issue.

We're going to move to questions. The way it works is that different members have six minutes to ask questions.

We will start with Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much to the both of you here.

I reiterate the comments of my colleague, the chairman, in extending our condolences and sympathy to you.

Thank you for the work you're doing here. This is making a difference, quite frankly. Over the years, those of us who have looked at these issues here recognize the important contributions that people such as yourself have made and we're very grateful for that.

Mr. Sikand, thank you for introducing this bill. You touched on this in your opening comments: would one of the concerns be that if you have a carload of people who have all been drinking and you have a designated driver, this passive detection device might pick up a positive testing on that? You seem to think it would be low enough that the police officer or the court would be able to recognize that it did or did not come from the driver. Would you address that again?

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

As you stated, it's no different from the current situation where you have peace officers using their own senses, and officers can have false positives if they pick up, through their own senses, the smell of alcohol. If you have the aid of the passive, it is a concern, absolutely, but it's a very low concern. As I mentioned earlier, the device works best when it's six inches from the driver's face. If alcohol is picked up from a passenger or some that may have been spilled, it's usually diffused quite a bit, so that when it is picked up it doesn't give a strong reading. It may pick it up, but not enough of a reading to continue the process to the approved screening device.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's fair enough.

Of course, one of the most effective ways of testing this is the breath test itself, using the equipment that is in place right now. With the addition of this device, would a negative test on that stop the police officer from having the ability to take a regular breath test?

Is it necessary for the officer to have a positive test on the passive device before he can go into the next one? Don't you think that might be a challenge if the passive detection device did not pick up the alcohol, and then the police officer tried to go to the next step? That might be something that I would guess would be argued in court at some point. What do you think?

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

It's a good question. This by no means replaces the current standards for reasonableness to continue the process. It's just a tool that's used in addition or, if the officers choose, instead of their senses. What we're asking for is to standardize it, make it a ubiquitous principle across all 13 jurisdictions to have this technology. It's available to us, and since the technology has advanced, it's actually available in what peace officers already carry, as a feature, to allow them to use this if they so choose. If they don't want to use the passive, that's their judgment call, but what we're asking is to make it available to them, because we really believe that it will help them, aid them—

[Rob Nicholson, Conservative, Niagara Falls, ON]

How far has the technology advanced? Is this made by the people who put out the Breathalyzer equipment?

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

Currently the RCMP uses a model called the Dräger. It has a feature in it, just as an app, whereas the roadside screening device asks you to blow into a mouthpiece. You just click to the right and it has a feature that will actually suck the air in, so it's built into it. They're highly effective. In the eighties, they were really large wands. Since then, the technology has come quite far.

[Rob Nicholson, Conservative, Niagara Falls, ON]

It would be interesting, Mr. Chairman, to actually see one of those.

[The Chair, Liberal, Anthony Housefather]

I believe on Thursday we are. The people making them are coming.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's good to hear.

You're actually not changing the penalty for vehicular homicide, or maybe I misread that. It would still be the same as impaired driving causing death. Is it your opinion by changing the name and the description in the Criminal Code that judges will increase the penalties for people found guilty of this?

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

No, you're right. The bill doesn't change the life sentence that would be available for judges.

I believe the nomenclature of calling homicide a homicide starts the conversation and once we do that, we can continue to have the discussion towards, perhaps what you're suggesting, mandatory sentences.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Your bill would change the Criminal Code. Are you of the belief that judges, with this different name, this different description, would give longer sentences to people found guilty?

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

I can't speculate to the mindset of the judges.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Okay, that's fair enough.

Now this is really playing the devil's advocate, from a defence lawyer's point of view. I know over the years, going back into the seventies and the eighties, there were people who refused to take a Breathalyzer test because they'd rather be convicted of that than to be convicted of impaired driving.

Do you think that this would be an added incentive for people to refuse to co-operate with the police if they are guilty of a crime like this, and to not have the Breathalyzer test or anything else? Do you think this might be an added incentive, if they potentially face the possibility of a homicide conviction?

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

To refuse...?

[Rob Nicholson, Conservative, Niagara Falls, ON]

To refuse to have the Breathalyzer test.

Changing the name of this, I agree with you, makes it more serious. It doesn't change the consequences. You've still killed somebody.

But being convicted of a homicide, do you think it might be more likely that the person will refuse to have the Breathalyzer, on the same grounds that over the years people who were picked up did refuse because they'd rather be convicted of failing to have a Breathalyzer test than to be convicted of impaired driving?

That was the incentive, and might they have more of an incentive now? It's just a thought.

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

I can't really speak to what somebody will or will not do, or hypotheticals.

I do believe that accurately calling the offence what it is will deter people from driving impaired.