Justice Committee on Oct. 18th, 2016

[Hal Pruden]

I'm hoping that I do.

The proposed legislation would give authorization under the Criminal Code for the Attorney General to approve the approved passive detection device. I apologize, because I might slip into calling it a passive alcohol sensor. The Attorney General, typically at the present time for an approved instrument and approved screening device, obtains scientific advice and a recommendation from the alcohol test committee of the Canadian Society of Forensic Science. So it's not a complication. It's a reality, I would say, but it's a practical reality that would need to be considered.

The Attorney General would turn, very likely, to the alcohol test committee and ask which passive sensing devices ought to be approved. I don't know if you will be hearing from the alcohol test committee later on this bill, but if you are, they are the alcohol breath-testing forensic sciences that provide advice to the Attorney General of Canada on equipment under the Criminal Code. Because this is under the Criminal Code, likely the Attorney General would ask for their advice.

Presently, they have not established evaluation standards for this kind of passive alcohol sensor. So that's one wrinkle or one item that people would have to keep in mind. They would have to establish standards. They would have to evaluate manufacturers' equipment that's submitted to the committee to see if it passes the evaluation standards, and then they would make a recommendation through the department to the Attorney General of Canada that the equipment passed standards. They might also state whether they believe it is suitable for use in Canada, under Canadian conditions, climate conditions included, which is what they do for the current approved screening devices and the approved instruments.

That's rather a long answer, and I don't know if it fully answers your question.

[The Chair, Liberal, Anthony Housefather]

That was six minutes.

Given that, Mr. Falk, you didn't really have a chance to ask anything. Do you want to take a bit more time?

[Ted Falk, Conservative, Provencher, MB]

I think I can make it brief.

Given what you've just said, would there at all be a risk that by putting something like this in the Criminal Code it would de-legitimize some of the previous screening or passive tests that are in place?

[Hal Pruden]

I don't see that it could de-legitimize the current regime of using approved screening devices and approved instruments, or that it could cause a problem for the current officers' observations related to impairment that lead to the suspicion, that then leads to the approved screening device demand.

I should also say that this would be, as mentioned earlier, permissive, just as approved screening devices are permissive and approved instruments are permissive. They're simply authorized. The police are not required to use them, but they can use them.

[Ted Falk, Conservative, Provencher, MB]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Di Iorio.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you, Mr. Chair.

First, I want to echo your remarks and kind words for Ms. Kaulius. Rather than repeat everything you said, I simply want to thank her and above all encourage her to persevere and continue her work.

Second, Mr. Pruden, I would like a clarification of Bill C-247. Subclause 1(2), which proposes the new subsection 254(1.2) entitled Presence of alcohol, states “...it establishes reasonable grounds to suspect”.

or, “it establishes reasonable grounds to suspect”.

That's the innovative part of the bill.

[Hal Pruden]

In fact, it is a different element, in the sense that the passive detection device itself is completely new. There is no current provision in the Criminal Code that speaks of passive detection devices. What the provision would do is deem that a positive result on the passive detection device is reasonable suspicion, and reasonable suspicion is needed for a demand for a breath sample on the approved screening device.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

I also understand that the driver is not required to cooperate with the police officer who wants to use the device.

[Hal Pruden]

There is no compulsion on the driver to co-operate because there is no deep lung air sample required with a passive detection device. The officer simply places it near the vehicle or near the driver.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

I'll give you an example. If the driver lowers his window slightly, he can then talk to the police officer. If he manages to provide the requested documents that way, the police officer can't force him to lower his window completely. As a result, there isn't a high enough level of cooperation to allow the device to be used.

[Hal Pruden]

There doesn't seem to be a refusal offence with the passive sensing device, but keep in mind that the officer already, at provincial law or at common law, can demand that the driver provide their driver's licence, which requires them to roll down the window or get out of the vehicle and show the driver's licence.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

One centimetre is enough space to provide the documents. They aren't very thick.

Do you see what I mean? My concern is prevention.

We were given statistics that show the extent to which the legal system is costly. When these events are discussed, they're referred to as accidents caused by alcohol. I think we all agree that they aren't accidents. Ms. Kaulius put it very well. She said these situations are completely preventable.

I want to know, based on your review of this bill, what elements can help us find some consolation and identify prevention tools.

[Hal Pruden]

The deeming of a failure on a passive alcohol sensor, with which the officer can then demand a sample on an approved screening device, could be said to be another tool the officer can use, to the extent that it prevents people from going out and drinking and driving, because they can be more easily detected. For example, if the officer has a cold, they would not be detected. This way, they would be detected through the passive sensor.

It has been expressed earlier, and others have expressed it this way, that a passive alcohol sensor is an extension of the officer's nose.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

So it's something the police officer can do right now.

[Hal Pruden]

There is no prohibition on an officer using a passive alcohol sensor, although I am given to understand that police agencies are very reluctant to employ passive alcohol sensors in Canada without some Criminal Code authorization specifically speaking about passive alcohol sensors.

I know of no police agency in Canada that currently uses passive alcohol sensors.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

That's all. Thank you.

[The Chair, Liberal, Anthony Housefather]

Okay, perfect.

Thank you, Mr. Di Iorio.

Mr. Rankin, go ahead.

[Murray Rankin, NDP, Victoria, BC]

Mr. Pruden, thank you very much for coming.

I'd like to pursue a few things. You brought up the alcohol test committee. Earlier, I asked a witness about an article from the American Journal of Public Health that claimed that these testing devices were not terribly useful when temperatures were below 8° or in windy or excessively damp weather.

Are you up on the technology? Has there been improvement since then, if that is accurate?

[Hal Pruden]

I am not an alcohol breath test scientist, so I am not an expert in this area and can't speak to that. You would have to ask the scientists. I can say that in the early 2000s, the Winnipeg police department looked at passive alcohol sensing devices and found that, in the wintertime, the particular device they were looking at was not able to function in Canadian climate conditions.

[Murray Rankin, NDP, Victoria, BC]

Because the bill would require reasonable grounds to be found if the passive detection device indicated the presence of alcohol, there's then an automatic presumption that reasonable grounds exist to take it to the next stage. Isn't there a concern there may be too many false positives and it could undercut what we're trying to do in preventing drinking and driving?

[Hal Pruden]

I think we need to keep in mind that it's deemed to be suspicion, and suspicion is a very low threshold and suspicion is what is needed to move to the screening stage at the roadside, which is simply to ask for a sample of breath on the approved screening device. It is only if the individual driver fails on the approved screening device that they will be taken to the police station, given their right to counsel and then receive a demand from the police to provide samples on an approved instrument, and the approved instrument gives the actual readings that would be used in court.

[Murray Rankin, NDP, Victoria, BC]

It's a very important point you make, that it's only to provide irrefutable suspicion, if I can call it that, and that takes you to the next stage. In light of that, is there not a concern? Has your department done a charter analysis to see whether that could be problematic, given the automatic establishment of reasonable grounds?

[Hal Pruden]

I would skate on thin ice if I started to give charter opinion advice that was given by the charter lawyers to the Minister of Justice.

[Murray Rankin, NDP, Victoria, BC]

You are from the Department of Justice—