Justice Committee on Oct. 20th, 2016

[The Chair, Liberal, Anthony Housefather]

I call the meeting to order.

Good morning, ladies and gentlemen. Welcome to this meeting of the Standing Committee on Justice and Human Rights, as we continue our study of Bill C-247, an act to amend the Criminal Code on passive detection devices.

For the benefit of the members of the committee, we're going to be hearing from Mr. Mayers first, and then we're going to go in camera after that.

I'm very pleased to welcome Daryl Mayers, who is the chair of the alcohol test committee of the Canadian Society of Forensic Science. We had a a lot of discussion at our meeting on Tuesday about the reliability of passive detection devices, and we're very interested to hear from an expert as to how these devices work and how accurate they are.

Mr. Mayers, welcome to our committee. It's a pleasure to have you.

[Dr. Daryl Mayers, Chair, Alcohol Test Committee, Canadian Society of Forensic Science]

Thank you.

Good morning, everyone. Thank you for having me.

The alcohol test committee, or the ATC, of the Canadian Society of Forensic Science has provided scientific advice to the Minister of Justice about detection and quantification of blood alcohol concentrations for the past 50 years. We are a group of dedicated volunteer scientists with expertise in breath and blood alcohol testing who are committed to maintaining the consistently high standard in alcohol testing that has become the accepted norm in Canada.

The ATC evaluates equipment for breath alcohol testing; makes recommendations regarding the management of breath testing programs, including the training of personnel and the maintenance of equipment; and makes recommendations on the procedures to be followed in the use of this equipment to ensure that the results are both accurate and reliable.

It's clear that one goal of Bill C-247 is to increase the ability of police officers to detect alcohol-impaired drivers with the use of approved—and I emphasize “approved”—passive detection devices, which are designed to detect alcohol in the vicinity of the driver. Passive alcohol sensors have been available for 30 or more years and come in a wide variety of forms from many manufacturers. This is demonstrable for anyone who wants to try it by using nothing more sophisticated than Google.

However, Bill C-247 speaks of—and I'm emphasizing—“approved passive detection devices”, and with that characterization places them into the same arena as approved instruments, approved screening devices, and approved blood containers.

Approval of a device, as you all know, is at the discretion of the Minister of Justice. However, the minister relies on the alcohol test committee to test any new products against the ATC's published standards to determine if they are appropriate to be used in Canadian alcohol testing. Therefore, if enacted, Bill C-247 would require the ATC to develop standards and procedures for the evaluations. We would have to perform evaluations on the new equipment proposed as passive devices, and we would have to develop operational recommendations and/or best practices relating to the maintenance and use of these devices.

The scientific aspect of the approval process of such devices is going to be extremely costly in both time and resources. As I indicated earlier, the ATC is a committee staffed by dedicated volunteers. While we have the support of our home laboratories, we also have our primary duties to our employers, which as busy forensic scientists can be onerous. All of the activities of our committee, including evaluations, have traditionally relied on our membership from each of our regional laboratories and have been largely done on our own personal time. The potential influx of numerous new devices seeking approval as passive detection devices would stretch our current resources past the breaking point.

Moreover, even the existing approved devices that have the capability for passive testing—which I have brought with me today and will be happy to demonstrate for those interested—would require further evaluation to demonstrate their compliance with the newly developed alcohol test committee standards. While these obstacles are not insurmountable, they can only be overcome with time and/or additional resources.

It's clear that these devices test for the presence of alcohol. They are not a flashlight or a tape recorder, and any suggestion that the contemplated devices need not be approved is contrary to our shared goal of ensuring that only reliable and accurate products be utilized as part of an alcohol testing system in Canada.

There is little doubt that these devices can be effective if operated carefully and according to proper procedure, but since they are designed to detect alcohol in the environment proximal to the driver, there is no direct correlation with the blood alcohol concentration in that driver. This is very different from approved screening devices and approved instruments, and allows for a much greater influence from the environment if they are not properly utilized. For example, these devices have been noted to be less reliable if windy conditions exist if the officer deploying the device does not take the appropriate precautions. The above scenario could result in a false negative and allows the potential for an impaired individual to avoid detection.

With these devices, there will also be the constant spectre, real or hypothetical, of false positives arising from the contents of the car rather than the driver. Any suggestion of a false positive has enormous implications to any litigation arising from the use of a device.

There are also some further considerations. For example, once the devices have been approved by the alcohol test committee, all of our individual forensic laboratories will need time to develop region-specific recommendations for calibration, training, and operational procedures for the device picked in their jurisdiction, and all our police services will need to act upon these recommendations.

Furthermore, it's the experience of the alcohol test committee that even the introduction of a newly approved instrument can be challenging in and for our courts. The introduction of a novel type of testing with completely unfamiliar devices will undoubtedly be the subject of lengthy litigation involving scientific staff from all the forensic laboratories across the country.

In light of the concerns raised above, the alcohol test committee feels that while approved passive detection devices could offer some advantage in the detection of alcohol-impaired driving, the overall cost of implementation and maintenance of this strategy outweighs the benefits. Practically, with the current resources available, the first use of approved passive detection devices in the field could take years following the enactment of the legislation.

As an alternative, the alcohol test committee recognizes that another bill, Bill C-226, which is currently before the Standing Committee on Public Safety and National Security, includes a provision for what is known as random breath testing of drivers for the presence of alcohol. This measure uses technology that is currently employed by police services, is supported by the regional laboratories, and has met the standards of the alcohol test committee. Random breath testing has been demonstrated to effectively diminish alcohol-impaired driving in jurisdictions where it has been implemented. This measure could be implemented as soon as the bill is enacted, with no lag time or need for additional resources.

In summary, it's the consensus of the alcohol test committee that random breath testing can achieve the goal of decreasing alcohol-impaired driving without the substantial costs involved with the implementation of a new system using approved passive detection. Finally, it goes without saying that if this bill becomes law, notwithstanding the submission from my committee, we will support its implementation to the fullest of our abilities.

Thank you very much. I'm happy to take any questions that the committee has for me.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Mayers. We really appreciate that submission. It was elucidating, certainly to me, and I'm sure to members of the committee.

Now what we'll do—I'm sure you're used to this—is go back and forth with different questioners.

We're going to start with Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much, Mr. Mayers, and thank you for all the work you do.

I appreciate, as I'm sure everyone does, your final comment that if this measure were approved, you would do your best to assist with the implementation of it.

You said that if in fact it does get approved, it would be extremely costly in terms of time and effort on your part. Right now, any budget you have would not adequately cover what would inevitably be involved. Is that a fair assessment?

[Dr. Daryl Mayers]

It is a fair assessment.

I make that submission based on my knowledge of how long it takes us to do our approvals now on approved screening devices and approved instruments. Through no fault of the volunteers on my committee, it takes quite a long time to get those done. We do them by two independent laboratories, so we must have two full independent validations done prior to this committee sitting down to assess it.

I know, having been on this committee for several years and having been vice-chair and chair, that despite our best efforts, speeding that process up it is difficult while working full time and maintaining our own workloads.

Our concern is that there are numerous devices out there that purport to be passive alcohol detectors. To use an analogy, we need to winnow the wheat from the chaff there. Some of the materials will not be acceptable in Canada. However, until we have a sense of how many things are coming in the door, we remain a little apprehensive about the time it would take.

Now, since I'm in front of a government body, this is where I make my pitch. Given resources, we could hire staff and we could probably do evaluations more quickly. That has not been the traditional way that we have done it in the past, but we do have provisions in the society for that to happen. We just can't do it with our current funding.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Okay. I can appreciate that.

You said there are many manufacturers of these passive alcohol detection devices.

Are you in a position to know at this point what works and what doesn't work, or what has been tested? Do you know, for instance, of any other jurisdictions that have already done an analysis? We're not the only jurisdiction, obviously, concerned about impaired driving; have other jurisdictions had a look at those who produce these devices and come up with a number of them that are more reliable than others? We presumably don't want to start just from scratch.

[Dr. Daryl Mayers]

I am not aware of the testing that has been done in other jurisdictions. This is a brand new area for my committee. We would certainly, as one our avenues, look into that.

I can tell you that the two approved screening devices I have with me are the ones most commonly utilized throughout Canada—and I say that with knowledge from my committee—and both are capable of doing passive testing as well as approved screening. The difficulty is that I have no magic wand to wave and suddenly approve them as passive testers, even though they have that capability. I know they have that capability, but we have no standards to test them against. We have never tested them for that utility, and at least one of them is no longer in production now. Whether it would be useful to do that at this point is somewhat questionable.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's not too encouraging.

You said you have two of them. You haven't been instructed to come up with recommendations or approval one way or the other, but nonetheless you do have two. You must have some confidence, in terms of what you have heard, that these detection devices work, even though at this point in time you haven't been formally asked to investigate and approve them. Is that fair?

[Dr. Daryl Mayers]

It's fair to say that I'm confident they work. I've tried them myself. I know that they will detect alcohol. However, developing standards for instruments or devices that test environment is very different from developing a standard for testing blood alcohol by way of a direct analysis of a person's breath.

I am currently involved in a committee that is setting standards for alcohol interlock devices, and the number of considerations when you are looking at something outside of a laboratory and not testing an individual directly makes for a much greater challenge. For example, I dare say that everyone on this committee drives a different car. The dissemination of alcohol molecules through different sizes of cars will be different. Most of these devices actually are.... They suggest that they can be used ambiently, but there's a greater suggestion that they actually are placed directly in front of the individual to get a breath sample, albeit without a mouthpiece and without breathing directly into them.

I know there have been suggestions that they be held six inches in front. With regard to one of the ones I have with me, their suggestion is two inches. That's a lot closer than six inches. It depends on the manufacturer. They all make it very clear that the further away you are, the less likely you are to get a result that is reliable.

[Rob Nicholson, Conservative, Niagara Falls, ON]

What do the different types of cars have to do with it? Is it that the larger the inside of the car, the less reliable the result will be?

[Dr. Daryl Mayers]

It may have some impact.

I'm thinking about the potential for.... I spend a lot of my time in court, and I'm thinking about the potential for suggestion of external environmental influences. Currently with an approved screening device, the officer has a look in the car to make sure there are no open alcohol bottles lying around.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's because it could affect the test.

[Dr. Daryl Mayers]

That could affect the approved screening device test if there had been recent consumption.

With this type of detection, I don't think it's much of a leap to suggest that the officers will now be asked if they investigated any spills in the car, if there was anything.... Was there a minty fresh smell in the car? There are various things—

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's what the defence lawyers will ask.

[Dr. Daryl Mayers]

Yes.

I speak from my experience of over 20 years in criminal trials. I'm not suggesting that those things are real possibilities; I'm suggesting that it will have to be carefully assessed so that we can be ready for challenges of that nature. Part of that may be deciding what sort of volume a passive detector needs to be effective in. That is a personal observation, and I certainly don't have my committee's years of experience—

[Rob Nicholson, Conservative, Niagara Falls, ON]

In your opinion, this is going to result in lengthy litigation, and your experience over the years confirms that.

Let me just ask you one more thing. I know I'll probably run out of time.

[The Chair, Liberal, Anthony Housefather]

You're at about nine minutes.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Let's just say that—

[The Chair, Liberal, Anthony Housefather]

You're at about nine minutes, Rob.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Oh, I'll just throw this out, then.

[The Chair, Liberal, Anthony Housefather]

It was so compelling that I was letting it go on.

Go ahead with your last question.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Murray Rankin has been promoted in his party, so just take it off his time.

If an individual takes mouthwash here, would this show up as a positive, if it was a mouthwash that contains alcohol? Some of them do. Would a passive detection device show that as a positive, do you think?

[Dr. Daryl Mayers]

I think it's possible.

The mouthwash I tested yesterday in my lab certainly did. I didn't swish it around my mouth and spit it out and try it that way, but I waved the passive detector over the top of it.

[Rob Nicholson, Conservative, Niagara Falls, ON]

After you had some mouthwash?

[Dr. Daryl Mayers]

Well, as I say, at 6 o'clock in the morning, I wasn't using mouthwash in the lab, but I did open the bottle we have in our breath testing room—we use it for testing our instruments and demonstrating to police officers—and both of the devices I had reacted to it. It was in close proximity, but it wasn't someone who was blowing towards it either.