Justice Committee on Oct. 18th, 2016

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's getting that message out there.

Anyway, I suppose I've run out of time.

Thank you, Mr. Chairman. I appreciate this.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Hussen.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Thank you, Mr. Sikand, for coming before the committee this morning.

My question has to do with the possible other uses of the device.

Would you support, for example, the use of the passive detection device in other areas of alcohol prohibition? If police want to enforce a prohibition on alcohol consumption in outdoor festivals or concerts by underage groups and others, would you support the police using this device to assist them in that work?

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

To be perfectly frank, I've never considered those situations.

However, now that you've brought that up, I don't see the difference between it being an aid, whether it's being implemented on the roadside or, as you suggested, maybe at festivals or in public in general. It's a device that's available to officers, so I believe they should have the ability to use it in whatever their role mandates.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Say an officer uses this device at the roadside and the officer gets a negative result. Would that then negate the ability of the officer to further investigate impairment?

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's a good point.

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

The officer ultimately uses their senses, and if, according to their senses, they, through their observations, believe that somebody is impaired and the device contradicts that, I still believe the officer has the right to continue. He has established the reasonable grounds to continue along the process through his own observations.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

We will now go to Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I'm the vice-chair of this committee and represent the New Democratic Party.

First of all, I'd like to say to you, Ms. Kaulius, how much I respect you for being here. I feel for you in your loss. And thank you, Mr. Sikand, for this bill. I really appreciate that effort too.

I have a few questions, probably building on what Mr. Nicholson said by way of playing the devil's advocate. Forgive me, I just want to make sure we understand what we are doing should we recommend that this bill go forward.

One thing I'm worried about is the nature of the technology. You have made it clear that there have been enormous advances since the days of the wand in the 1980s. However, I'm told that there was an article in 1993 in the American Journal of Public Health that reviewed these passive detection devices and said there were problems in damp weather or when the temperature was below 8°. In Canada the temperature is often below 8°, and I live in a place where there's always damp weather.

I'm wondering whether we have to be concerned about the nature of the technology. Are these things sufficiently reliable to do what you want them to do?

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

I would say that they are.

The article you just made mention of is from 1993. Again, those devices had a lot of components that were external. They were wands. Now this is a feature that is built into a very compact device that officers have at their disposal and, if not at the moment, the next time they replenish...a lot of them will have that same feature available to them.

[Murray Rankin, NDP, Victoria, BC]

Yes. I'm looking forward to it. I think we're going to actually see this, which I think will be helpful, and we're going to talk to the manufacturers about that.

Most, if not all, provinces have something like the Motor Vehicle Act of British Columbia. It has the very common provision that a police officer can stop your car, and you have to provide your name and address in certain circumstances. Currently, police officers can require a breath sample only if they have reasonable grounds to believe a person has alcohol in their system.

In your answer to Mr. Nicholson, you talked about these passive detection devices essentially being just a tool, but they are not just a tool. In your bill, the presence of alcohol is established, the reasonable grounds for the search are established, if the passive detection device indicates there's alcohol around.

It seems to me that might change the way police are using their powers under motor vehicle legislation at the provincial level to stop people. Simply with a little clipboard and this device somewhere nearby, they require people to incriminate themselves, potentially.

I may be overstating that, but doesn't this provide an incredible new tool of a categorically different nature?

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

I don't believe it does. Currently, if we take an officer with a regular clipboard, for example, who has stopped somebody, that officer speaks with the individual and is able to detect the presence of alcohol. That's no different from the tool detecting that presence of alcohol. Both methods will establish the grounds that require the driver to subsequently submit to the roadside screening device.

[Murray Rankin, NDP, Victoria, BC]

In other jurisdictions where this has been done, how much more detection does this passive alcohol detection device provide than simply the senses of a police officer?

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

I don't have the numbers with me, but the detection rate is quite high.

[Murray Rankin, NDP, Victoria, BC]

Have there been studies to show how much higher it is than simply using your nose and other senses?

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

Yes. I can provide that to the committee afterwards, if you'd like.

[Murray Rankin, NDP, Victoria, BC]

I would appreciate that.

This is regarding the question about the right to counsel. Given that the section says there is reasonable grounds if the little red light goes on in the passive detection device, do you think.... You talked about section 8 of the Charter of Rights, and you're confident that's not an issue, that the expectation of privacy is quite low here. But given that your statute would create reasonable grounds for a search under the Criminal Code—not just RIDE at the provincial level, or some roadside suspension, but a criminal offence of vehicular homicide—do you think there should be a right to counsel when these passive detection devices are used?

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

This won't change the right that a driver has to counsel in any way. It literally is a mechanical nose, if you will, for officers to use. As the law is established now, it won't change any of those requirements or regulations.

[Murray Rankin, NDP, Victoria, BC]

What we're doing here, though, is a criminal offence. For example, there has been case law, the Dedman case in the Supreme Court of Canada, dealing with the RIDE program in Ontario. You made the point that driving is a privilege, and therefore, there should be a pretty low charter implication.

Here you're creating a criminal offence. You're renaming it vehicular homicide. Aren't the consequences significant? Isn't it likely a court would be more likely to intervene given the nature of this as opposed to, for example, the Dedman case, which was just an administrative sanction?

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

It's not creating a new offence, so the two aspects of the bill are vastly different in their approach. The passive is on the front end, allowing peace officers to use the technology available to them to continue to have someone submit to a breath test, thereby finally establishing the offence of, for example, in Ontario, a DUI. The second part is at the end. If you have actually taken someone's life while impaired, it will have you prosecuted as someone who has committed a homicide, not as someone who happened to drink alcohol and then accidentally cause somebody's death. The two don't relate, and in that sense it's not creating a new offence.

[The Chair, Liberal, Anthony Housefather]

Keep it really short, Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I was just going to build on what Mr. Nicholson said. He talked about the change of name having little or no impact. We talked about the sentencing aspect. You would presumably think that it would have an impact on deterrence for the accused. You would think people would more likely think twice, knowing this technology is available. I presume that's why you suggested this.

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

I believe it behooves us to accurately name the offence for what it is.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. McKinnon.