Justice Committee on Oct. 20th, 2016

[Rob Nicholson, Conservative, Niagara Falls, ON]

Fair enough.

[The Chair, Liberal, Anthony Housefather]

I'm very glad to hear that you keep mouthwash available in the lab, though.

We're going to go to Mr. Bittle.

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

Thank you so much, Mr. Chair.

Proposed subsection 254(1.2) of this bill reads:

If an approved passive detection device indicates the presence of alcohol in a sample collected by a peace officer, it establishes reasonable grounds to suspect that the person has alcohol in their body.

I know you're not here to provide legal opinion, but is that a presumption that's defensible, in your opinion?

[Dr. Daryl Mayers]

Certainly not as primary evidence in court. I don't think you can correlate passive detection with blood alcohol in a person's body. It certainly gives you further evidence that there is alcohol in the vicinity, and the likelihood is that it is coming from his body. However, as I commented to the other member, the other possibilities of where that is coming from would be raised. That's something that training can assist with, but it is something we should be aware of.

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

We've heard some testimony in regard to this being just an extension of the officer's nose. Would you like to comment on that?

I expect that to establish a presumption, an officer's nose would create false positives as well. I wonder if you could comment on that.

[Dr. Daryl Mayers]

I don't think there is any doubt that officers can and do make mistakes.

I think false negatives are certainly a possibility. False positives are also a possibility, because of certain odours that may be mistaken for alcohol.

I am not called to the bar, nor am I a lawyer of any sort—

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

That's a good thing.

[Dr. Daryl Mayers]

—but certainly the odour is not the only thing that is used in forming reasonable suspicion to demand a screening device. I've heard enough trials to know that. This wouldn't be much different from that, but it adds another layer.

I should comment at this point that something I've been mulling over is that if the officer smells what they think is alcohol and they pull out their passive detection device, and, owing to circumstances beyond their control, it doesn't register alcohol, I think it offers a very interesting litigable point as to which side should be believed.

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

You mentioned that it would possibly take years to approve and test. Is there any way you could narrow that down? Are we looking at five years? I appreciate that this may not be a fair question, but is there any way that you could expand on that?

[Dr. Daryl Mayers]

I have never been shy in writing my budgets to ask for more money. With our current staffing, we're nine members. We should be at 10; one member has finished their term. With our current staffing level and the volunteer nature of our activities, that's why I'm opining years.

If we had dedicated staff, we could cut that back. In order to do that, there are hurdles to get over, which are where the dedicated staff reside. We don't have a laboratory that belongs to us. We work out of our own laboratories. It's possible that we'd have to have some sort of agreement from our laboratories if we hired a technologist, for example. To do these evaluations, some resources from the laboratory would be utilized—maybe not expendables, but the very fact that the person is there taking up space is a resource.

These are things that we would consider, but given sufficient funding, I think that could shorten the procedure significantly.

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

Have I used up my nine minutes?

[The Chair, Liberal, Anthony Housefather]

You have another minute and a half.

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

To finish up and just to be clear, there really is no way that you can comment on the accuracy of these devices at this particular time.

[Dr. Daryl Mayers]

Not without studying them and testing them. Scientists are driven with data, and I do not have the data to assist this committee at this time.

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

Okay. Thank you so much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Bittle.

I would like to, I think on behalf of all of us, congratulate Mr. Rankin on his new appointment as NDP House leader.

This is your time, sir.

[Murray Rankin, NDP, Victoria, BC]

That's very kind of you. I'll miss this committee a great deal, seriously, and I appreciate all that you've done as chair.

I want to build on Mr. Bittle's line of questioning.

You talked in your testimony about windy conditions and how false negatives could be generated as a result of the wind taking, presumably, the alcohol particles away. In 1993 there was an article in the American Journal of Public Health that not only talked about windy conditions but also said that when temperatures were below eight degrees, or in excessively damp weather, there would also be problems.

Now obviously you need to look at the studies and do your own analysis, but have you had a chance to take into account the temperature issue and the dampness issue?

[Dr. Daryl Mayers]

Well, certainly I can speak somewhat to the temperature issue. That paper is American, so I think they said it was 48 degrees, which we all know to be Fahrenheit.

These devices—at least the ones I'm familiar with, and the ones I would recommend—utilize fuel cell technology as their mechanism for detecting alcohol, and fuel cells can be affected by cold weather. What will happen if they're cold is that you will get an underestimation of the actual result. That means that it will have a false negative, potentially. That's true of the approved screening devices as well, which is why we instruct our officers when they're doing snowmobile patrol, for example, to keep it inside their parka.

I don't know the specifics about some of the devices that are out there, or how they're protected against the cold, but it could cause a false negative. The alcohol sensor, as a fuel cell, will not cause a false positive, which is something that is very encouraging—to a forensic scientist, anyway—by having it cold, nor will heat cause false positives.

With regard to damp conditions, once again I think this comes back to my earlier testimony that the environmental conditions are far more important with these devices than they are with anything we've ever tested before. We'd have to turn our minds to that very, very carefully. The study you've alluded to with the windy conditions was done by NHTSA in the United States. They produced a breeze in the lab that I think was characterized at 0.5 miles per hour. We're Canadians. That's nothing up here.

[Murray Rankin, NDP, Victoria, BC]

Not only is that nothing for wind, but think of the damp conditions on the west coast, for example, or the east coast, and about the extreme cold that we experience in the Prairies. It makes me wonder, if there are all these false negatives that could occur, whether the game is worth the candle, if you know what I mean.

[Dr. Daryl Mayers]

All I can say is that until the alcohol task committee has had time to do greater study of the ones that are proposed, we can't give you specific data on that question, although we certainly would be able to look at it.

[Murray Rankin, NDP, Victoria, BC]

There was something else you said this morning that caused me concern.

We talked earlier about the best use. We've heard testimony that the best use is to place the device six inches or less from the driver's mouth. You said today that two inches would be more appropriate to be useful.

If it's two inches, that would appear to be very invasive vis-à-vis the driver of a car. If you're that close, say two inches away.... The police officer stops you at the side of the road, and in order to be effective, the officer has to put this device almost inside the car. That much proximity to the driver's mouth sounds like it could be very invasive, in practical terms.

[Dr. Daryl Mayers]

Yes.

For the purpose of the record, I'm holding up a device. This happens to be the Alco-Sensor FST. This is the device that the manufacturers suggest.... The passive detection area is on the top. There are three different types of passive detection with this device that they outline in their technical manual. They are the manufacturers who have suggested that when you're testing an individual, there should be a cup involved on top that you place in here, instead of a mouthpiece, that will attempt to capture more of the breath.

[Murray Rankin, NDP, Victoria, BC]

That doesn't sound very passive to me. It sounds very active, if you think of it in those terms, with a cup placed two inches away. It doesn't sound passive at all.

[Dr. Daryl Mayers]

You can also use it the other way. You can use it in a passive ambient way and just stick it into the environment, but they suggest otherwise to get the most accurate determination correlating with the actual subject.

I'm using the manufacturer's information here. This is not data that we've developed. Scientists are by nature skeptics. We like to have our own data. We test these things because we don't believe anybody until we check it for ourselves.

This manufacturer says two inches. I realize that the original data that came from NHTSA back in the late 1980s suggested six inches. That is a different device entirely. It maybe just illustrates for this committee that these devices are very different from one another and it depends on the manufacturer and which device we're testing as to how we draw our conclusions.

[Murray Rankin, NDP, Victoria, BC]

Thank you.