Justice Committee on Oct. 18th, 2016

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

Yes, absolutely. In fact, probably one of its greatest utilities is at a checkpoint. The efficiency goes up. You have less screening time between each car or vehicle. When a vehicle comes up, instead of having to engage in conversation with the driver and really assess whether they've been drinking, it's much easier to use the tool and, if there's a negative reading, go on to the next vehicle.

They've actually done studies on how effective this is during a RIDE program, for example. Systematic stops are more effective when you use this.

[Colin Fraser, Liberal, West Nova, NS]

At a checkpoint, then, you would envision this being used at every vehicle. It wouldn't be every so often, or you wouldn't need other grounds in order to think that the person may have alcohol in their system.

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

It would depend on the type of checkpoint employed. I'll use the RIDE program here in Ontario as an example. I think it would be highly effective if you have everyone coming up.... The officer is making the judgment call with his own senses as well, but it's a lot easier to make that judgment call, employ the machine, see that the person hasn't been drinking, and then move on to the next vehicle, instead of having to engage the individual in a lengthy conversation in order to make that assessment.

[Colin Fraser, Liberal, West Nova, NS]

With regard to clause 2 of your bill, section 254 of the code would be amending by adding proposed subsection 254(1.1), which says that you'd be able to allow police officers to collect “ambient air” from anyone if the officers have “reasonable grounds to believe” that the person had been operating a motor vehicle or even had care and control of a motor vehicle in the preceding three hours. Police officers suspecting that somebody had been driving could go up to the person and put this device within six inches of that person's mouth and determine whether that person had been drinking, even if they weren't in a vehicle, for example, if they were out at a restaurant.

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

It doesn't change the current law at all. That's exactly what's there now for an officer to go and actually use their own senses. It would just allow the device to be used as well.

[Colin Fraser, Liberal, West Nova, NS]

Just to touch on a point that Mr. McKinnon raised, at the checkpoint, this device would probably have to be inside the vehicle to be within six inches of the driver's mouth. Do you see any problem with that?

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

Six inches is just used to describe its effectiveness. It's most effective within six inches. It will still pick something up within eight inches. You don't need to have somebody waving a wand in your face. The distance between a driver and an officer that is the normal distance when they pull you over is appropriate for it to be effective.

[Colin Fraser, Liberal, West Nova, NS]

You say that it could be attached to a flashlight or particularly a clipboard. Would it be obvious to the driver that this device was being used, or would the officers have to indicate that this device is being used when they are perhaps putting it near or in the driver's face?

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

That would depend on the model. It could be a sensor at the end of a flashlight. It could be on the end of a clipboard. In all honesty, I see officers in Canada using it as a feature in the approved screening device they already have.

[Colin Fraser, Liberal, West Nova, NS]

As a feature in the approved screening device? In the alert? They already have it—

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

When you submit to a breath test, the device is normally referred to as a Breathalyzer, but it's actually an approved screening device. When you blow into the mouthpiece, it gives a reading. That same little device actually has the ability to suck out the ambient air and also give you a reading, instead of someone having to blow into it.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Thank you to our witnesses.

Ms. Kaulius, I too extend my sympathies to you on the passing of your daughter.

Thank you, Mr. Sikand, for the intention of what you're trying to accomplish through your private member's bill.

I want to build a bit on the questions that Mr. McKinnon had. I'm all in favour of increasing prevention and increasing the detection of folks driving under the influence or driving while impaired and of prosecuting them properly, but you seemed to concede to Mr. McKinnon that in our legislation there's nothing today preventing a peace officer or police forces from using a passive detection device.

Moving along on that thought a bit, if there's nothing preventing them, I'm wondering if you can help me understand what value your private member's bill would actually add in the process, because it's not a prescriptive bill. It's more a descriptive bill or a permissive bill, and if that already exists, what exactly would we accomplish? You're not changing the sentencing. You're not addressing any of those issues. I know there's a bit of a change in the verbiage or in the description of what's actually happened, which I can appreciate, but really, what is the value in your bill?

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

There's a demonstrable economic cost to using our courts and the legal system in general. Perhaps using the passive device isn't necessarily excluded, but when you explicitly state that you can use it, one, it will encourage officers to use it, and two, it will prevent any duplication in having charter challenges or having the courts rule on this. If we can legislate that this is perfectly allowed, I think it will streamline the system in general. As well, it will make it easier to enforce the law.

[Ted Falk, Conservative, Provencher, MB]

You haven't sold me yet. I don't think we have legislation, at least not in the Criminal Code, that addresses the use of the baton, the taser, or a firearm in the administration of a peace officer's duties, as far as being able to acquire a conviction under a certain offence is concerned, and I am wondering why you would want to change the Criminal Code to address this. I think your intention is very good, but I'm just wondering if there's really value or whether you're complicating something.

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

On the contrary, I think we're simplifying it. The part of the Criminal Code that allows peace officers to have a driver submit to an approved screening device after they've established reasonableness is complicated if you introduce technology such as the passive, which they can technically use, if you read it, but by explicitly stating that an officer can use this, you've actually cut out all of that confusion.

[Ted Falk, Conservative, Provencher, MB]

If a device like this were approved—and you may have addressed this in your presentation; I didn't write it down—do you have any statistics that would show what percentage of detection there is currently and what percentage we could expect with the use of a device similar to this?

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

Again, it is highly effective. I don't want to provide the committee with inaccurate information, so if I could provide that information after, I will.

[Ted Falk, Conservative, Provencher, MB]

Ms. Kaulius, your organization is Families for Justice and I assume you've had a chance to read the bill. What in the bill do you see that would help you achieve the goal of your organization?

[Markita Kaulius]

First of all, impaired driving is one of the toughest cases in criminal court to get convictions for because there are many loopholes that are used. We do have sentences of 10 years. I can count on probably one hand how many sentences are given out for that crime of 10 years. They're next to nothing. As I mentioned, when you see $1,500 fines, $2,000 fines, clearly people are not getting the message.

I'm from B.C., and when we implemented tougher impaired driving laws with the immediate roadside prohibition, our fatalities dropped by 52% because people knew that their vehicles would be impounded if they were deemed to be impaired. They would have to get an interlock ignition put on their vehicles, and the individual cost is about $4,500 when everything is said and done. A lot of people stopped. In saying that, though, in the five years since this law was implemented there, we have given out over 166,453 roadside prohibitions just in B.C., because people are still willing to take the chance.

I think that this bill in changing it to vehicular homicide calls it what it is, and that may be a deterrent for some people as well. They'd know that if they decided to drink and drive and then got involved in a collision, they'd be looking at a vehicular homicide charge, and that may be a deterrent that would stop them from getting in behind the wheel.

This passive detection device, as I say, is an added tool for the police to do their job better to keep our roads safer.

[The Chair, Liberal, Anthony Housefather]

You have time for one short question, Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

I don't have a short one.

[The Chair, Liberal, Anthony Housefather]

Okay. Then we're going to move on to Mr. Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you, Mr. Sikand, for bringing this bill forward.

Ms. Kaulius, I'm a new father and I can't fathom what you're going through. I want to thank you for bringing your story to this committee.

I'd like to follow up on Mr. Falk's question and perhaps give you an opportunity. You spoke quite eloquently on the need for stricter drinking and driving legislation. I'm wondering if you could focus specifically on this bill and how you see the positive impacts of this bill on our criminal justice system and perhaps reducing drinking and driving.

[Markita Kaulius]

I think that if the public was aware that there were now new tools out there that the police could use to implement tougher screening, it may deter some people. But in saying that, just having those deterrents is one thing, but having punishments that follow up behind that for those who break the law is paramount. People right now know that, yes, we have impaired driving laws, but when you still see thousands of people willing to take the chance, they know that there is not much there in the way of punishment and they're willing to take the chance.

As I've said before, it's a new tool to be used and they can determine the breath concentration, whatever that may be, of the alcohol or whatever. I think that's an added deterrent for some people. Then they have the screening devices right after that, so you're having stages there. It's not just one test they're getting. You're having two or three before actual or possible charges are laid.