Justice Committee on June 13th, 2017

[The Chair, Liberal, Anthony Housefather]

Good afternoon, ladies and gentlemen.

It's a real pleasure to have you all here.

We are going to begin our study of Bill C-46, an act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other acts. I think it's one of the most important bills that has yet to come before this committee in this session, and I look forward to hearing from the first of what looks to be a large number of witnesses.

We're joined today by the Minister of Justice and Attorney General of Canada, the Honourable Jody Wilson-Raybould.

Welcome, Minister.

[Jody Wilson-Raybould, Liberal, Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

She is joined by three individuals from the Department of Justice.

We have with us our very frequent visitor Mr. Bill Pentney, deputy minister of justice and deputy attorney general of Canada.

Welcome back, Mr. Pentney.

[William F. Pentney, Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Also, we have with us Carole Morency, director general and senior general counsel, criminal law policy section, and Greg Yost, counsel, criminal law policy section.

Welcome, Madam Morency and Mr. Yost.

Minister, I'm going to turn the floor over to you for your opening statement. Again, it is a pleasure to have you here.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Thank you, Mr. Chair, and certainly thank you to all of the members of this committee. I am always pleased to come back before all of you. I appreciate the chair saying that this is one of the most important bills to be before the committee, and I very much look forward to hearing feedback.

I'm pleased to be here to speak to Bill C-46, an act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other acts. The bill would strengthen the existing criminal law with respect to drug-impaired driving and would result in a simplified, modernized, and coherent legislative framework addressing all transportation offences, including impaired driving.

The ultimate goal of this bill is to reduce deaths and injuries caused by impaired drivers. Drinking and driving continues to cause untold devastation on our roads and highways, despite years of public education on the dangers of such conduct. No one is immune to its tragic impact. This was evident during the second reading debate, when many members of Parliament related their personal stories of being impacted by an impaired driver. Some have lost family members of their own, and others have described the impact impaired driving has had on some of their constituents and communities.

I would like to point out that since the introduction of this bill, questions around its constitutionality have been raised, particularly with respect to whether some of the key proposals will withstand charter scrutiny. I would like to assure the committee that I take my role under section 4.1 of the Department of Justice Act very seriously. I am confident that the proposed reforms are appropriately tailored to the important objectives we are pursuing and will survive any constitutional challenge that may be brought.

It has been my practice, as Minister of Justice, to table a charter statement. I did so with respect to Bill C-46, and it outlines some of the key considerations that informed my review of the bill to ensure its consistency with the charter. The statement identifies how the bill potentially engages charter-protected rights and freedoms and also identifies the rationale for justifying any limits that the bill may impose. My hope is that this information will be of assistance to all members as you study and continue to debate this important bill.

I would like to now spend a few moments outlining some of the key proposals in the bill. As I mentioned, the bill proposes to strengthen the existing criminal law approach to drug-impaired driving. It would do this by enacting three new driving offences of being over a legal drug limit. The legal limits are not contained in the bill but would be set by regulation. This approach would permit cabinet to add drugs or amend legal limits quickly and efficiently in response to the evolving science. Although legal limits would be established for several impairing drugs, such as cocaine and methamphetamines, I propose only to outline the levels relating to THC, the primary impairing component of cannabis.

The bill establishes a low-level fine-only drug offence for THC. This represents a precautionary approach. This offence would prohibit having between two and five nanograms of THC per millilitre of blood within two hours of driving. This offence would be punishable by a maximum fine of $1,000 and a discretionary driving prohibition of up to one year. Additionally, Bill C-46 proposes a hybrid offence for a higher level of THC, corresponding with higher risks from impairment. This offence would prohibit having five nanograms or more of THC per millilitre of blood within two hours of driving. Finally, the second proposed hybrid combination offence would prohibit low levels of THC in combination with low levels of alcohol, recognizing that these two substances interact to significantly increase overall impairment.

Both of the hybrid drug offences would have escalating penalties that mirror the existing impaired driving penalties: a $1,000 fine for the first offence, 30 days' imprisonment for a second offence, 120 days' imprisonment for a third or subsequent offence, and mandatory prohibition orders.

The bill also proposes to authorize the police to use roadside drug screeners to more effectively identify drivers who have been using drugs. These tools would be in addition to the existing roadside tests, known as standard field sobriety tests. The ability to demand these tests has been in force since 2008. They are used by police to develop reasonable grounds to believe that a driver is impaired and proceed to further investigate.

I am very pleased that last week Minister Goodale announced that the drug screening device pilot project conducted between December 18, 2016, and March 6, 2017, by police officers in seven jurisdictions across Canada was successful, and received positive reviews from police. Officers reported that the devices were easy to use at the roadside and that they were able to successfully use them in various weather, temperature, and lighting conditions. Giving law enforcement this tool to detect and deter drug-impaired driving will better protect communities.

Bill C-46 also proposes significant reforms in the area of alcohol-impaired driving and other transportation-related provisions. It proposes to completely repeal these Criminal Code provisions and replace them with a simplified, modernized, and coherent legislative framework. One of the key proposals is to authorize mandatory alcohol screening. This proposal would allow a police officer, in the lawful execution of their duty, to demand a preliminary breath sample from any driver who is operating a motor vehicle. This provision was debated vigorously at second reading. I want to spend a moment explaining in some detail the reason this is proposed within the bill.

Mandatory alcohol screening is common in other jurisdictions, including in New Zealand, Australia, Ireland, Scotland, and much of Europe. It has been proven to significantly reduce traffic-related fatalities. In fact, in Ireland it was credited with reducing the number of deaths on Irish roads by approximately 40% in the first four years after it was enacted. The Supreme Court of Canada has upheld the power of police officers to stop vehicles at any time to ensure that drivers are complying with the rules of the road. They can do this to ensure that drivers are licensed and insured and the vehicle is mechanically fit, and to check for sobriety. The proposal in this bill would require a driver who is already subject to a lawful traffic stop to provide a breath sample, similar to the way they are now required to produce their licence and registration. It is simply information about whether a driver is complying with one of the conditions imposed in the highly regulated context of driving.

Some have expressed concern relating to the perceived risk that this provision could lead to an increase in racial profiling. While the issue of racial profiling is a serious concern to our government, mandatory alcohol screening will not have an impact on this practice. Mandatory alcohol screening would not alter the responsibility that law enforcement has towards training and oversight to ensure fair, equal, and appropriate application of the law. Finally, mandatory alcohol screening was unanimously recommended in 2009 by the members of this very committee following a comprehensive study of the issue of impaired driving. I thank that committee for their hard work on this important issue, and I am pleased to have been able to include that recommendation in this bill.

As Minister of Justice and the Attorney General of Canada, I feel it is my obligation to take any and all reasonable measures within my authority to reduce the incidence of impaired driving, with the ultimate goal of reducing road accidents. I am confident that the mandatory alcohol screening will be effective at reducing deaths and injuries on our roads and highways. I'm also confident that mandatory alcohol screening is constitutional. Constitutional compliance is about striking the appropriate balance. Mandatory alcohol screening is minimally intrusive, but the benefits in lives saved will be immeasurable. Simply put, mandatory alcohol screening will change the mindset of drivers, who will no longer be able to convince themselves that they can evade police detection of their alcohol consumption if stopped.

Mr. Chair, the bill contains many other proposals that I do not have time to go into in great detail, but just for summary's sake, some of these elements include: removing or limiting defences which encourage risk-taking behaviour, including the bolus or drinking-and-dashing defence; clarifying that the crown is only required to disclose scientifically relevant information; simplifying the proof of blood alcohol concentration; and, increasing some minimum fines and some maximum penalties.

I would like to draw the committee's attention to the legislative backgrounder on Bill C-45 that I tabled on May 11, which contains more detail regarding all of these proposed changes. It is my hope that this document will help guide your study by explaining in more detail the intent of the proposed changes.

In conclusion, the ultimate goal of Bill C-46 is to save lives, reduce injuries, and ensure the safety of Canadians on our roads and highways. If passed, this bill would give Canada one of the toughest impaired driving regimes in the world. Protecting the public is a responsibility that I take seriously and that I know this committee takes seriously, and I'm very proud of the proposals set out in Bill C-46.

Than you for your attention. I look forward to comments and questions, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your statement, Minister Wilson-Raybould. We're going to turn to questions from members of the committee.

We'll start with Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

I'd like to welcome the minister and all these members of the Department of Justice. I thank you for your appearance today.

There's quite a bit in this piece of legislation. I wonder if you could explain it again for me and for the committee with respect to the mandatory testing. As you've pointed out correctly, the law now is that the courts have upheld the right of police officers to stop people and check with them for their insurance or make sure their licence is up to date. At that time, after they've stopped that individual, if they believe the person is impaired, they are entitled to demand a breath test.

In your description of how this new regime would take place, would it be the same regime in which they're stopping the individuals on a regular basis to check their insurance or their licence, or would the sole purpose of stopping these people be to test for impaired driving? You seem to say that it's both of them. If they have a lawful reason to stop the person, which has been decided, in that they can check on things like your insurance and licence, is the next step, then, that they can or will have the mandatory testing, or are you suggesting and is this bill saying that you can be by the roadside and just start pulling people over, and it's strictly about alcohol and has nothing to do with licences or insurance?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Thank you for the question. I appreciate the enormity or the length of this particular bill.

In terms of the mandatory roadside screening, as you quite rightly indicate, it does not provide law enforcement officers with any additional powers, but certainly to pull people over on the roadside in compliance with the current laws.... In terms of how the mandatory alcohol screenings will be administered, certainly we have to continue to work with law enforcement and to support law enforcement officers with regard to the ability of having the screening devices available to them and having the training and testing with respect to various jurisdictions in terms of law enforcement officers.

How the screening will unfold, I suspect, would be a combination of the situations you speak to, whether it be the random roadside stops or the roadblocks at Christmastime. I know that other jurisdictions, in having these conversations, have discussions and do research around situations where there's an increase in terms of impaired drivers driving, whether that be in the early morning hours or around a specific location in a city or a town, but again, this is—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Do you envision that it's in combination with stopping people to check their insurance and their licence, or is that necessary under this? The deputy may have a comment.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

A police officer can pull somebody over lawfully, as you quite rightly say, to check their driver's licence, to check their registration, to check if they are impaired by alcohol, and in any of those stops a police officer, if they have the screening device, can administer that screening device.

[Rob Nicholson, Conservative, Niagara Falls, ON]

This bill is in conjunction with Bill C-45, which is with respect to the legalization of cannabis, but this specific section just refers to alcohol. Is that because you don't believe that the technology is in place to immediately check whether the person is also drug impaired? It just refers to alcohol.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

In terms of the mandatory roadside screening?

[Rob Nicholson, Conservative, Niagara Falls, ON]

This bill with the mandatory roadside testing refers to alcohol. It doesn't refer to drugs.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

You're quite right. Bill C-46, the impaired driving in terms of drug impaired and alcohol impaired, is a companion piece to Bill C-45, which is the cannabis act. In terms of the mandatory roadside screening, it only applies to alcohol. We are ensuring that we continue to work with the best scientists and experts in this area who are helping and providing us advice in terms of the detection of drug-impaired driving. We've benefited greatly from the drugs and driving committee that has been working on the development of tools.

As I said in my comments, the science will continue to evolve, but as with other jurisdictions throughout the world that have followed similar processes in terms of approved devices for the oral fluid screening that is articulated in part 1 in terms of drug-impaired driving, we have benefited from the tests that Minister Goodale has undertaken. We are confident that we have an oral fluid screener that will, on the roadside, enable the first test in terms of drug-impaired driving. If there is a reasonable basis for a police officer to think that somebody has been influenced or impaired by drugs, they will be able to administer the test, which would register a positive or a negative.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Let me ask you about the defence of bolus drinking. Do you anticipate that there may be some challenges, some difficulties with that?

I've seen cases over the years that an individual may or may not have been drinking, but after, for instance, an accident, have consumed some alcohol ostensibly to calm themselves after the accident. I suppose this would come within the definition here whether the person drank or not. I wonder if you see problems in terms of proving, because it's what the condition of the individual is when the accident takes place or when they're pulled over that's the key moment in the amount of alcohol in there, not the amount of alcohol they consumed afterwards. Do you think that this could be part of the challenges that this particular section is going to face?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I think that simplifying or repealing some of the defences around bolus drinking or around the intervening drug offence will significantly speed up trials around impaired driving. Adding the two-hour time frame in terms of the offence does this. In terms of the intervening consumption, there is a defence to that if there was no anticipation that a police officer would come to one's home or an anticipation that there was a presumption that they would be under the influence of drugs. The two-hour time limit put around the time of driving is to eliminate the possibility of those defences moving forward.

[Rob Nicholson, Conservative, Niagara Falls, ON]

We need something like that. When we were government we got rid of the two beer defence for just the same reason here, so people aren't manipulating the situation to allow themselves to get off which is otherwise a very serious matter.

Thank you, I think I probably ran out of time.

[The Chair, Liberal, Anthony Housefather]

You did, but they were very important questions.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Nicholson.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

Thank you very much, Minister, and, ladies and gentlemen, for being with us today to answer our questions on this important bill. I appreciate the work that has gone into this, Minister.

You touched on some of the elements dealing with the charter that you address in the charter statement that was put out. I'd like to ask you about the difference between random breath screening at a roadside checkpoint, which you touched on, and any sort of traffic stop. Peter Hogg, a leading Canadian constitutional expert, offered an opinion that actually only refers to checkpoints. He talked about how in that situation there would not be a stigma or humiliation, or irrelevant considerations, such as race, going into who it is who's being chosen to actually take a random sample.

I'm wondering, and you touched on it briefly in your statement, if you could explain why it was decided that it would not be just the roadside checkpoints, but that it would be at any traffic stop that a random sample could be taken.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I appreciate the question and certainly welcome the views and opinions of this committee and other experts who may or may not come before the committee.

The decision to have random mandatory breath screening was made based on experiences and practices in other jurisdictions that have been very successful at reducing the number of impaired drivers on our roads and significantly reducing the deaths on the roads. It provides another tool for law enforcement officers to be able to identify whether an individual is impaired by alcohol, either at a roadblock such as we see at Christmas, for example, or through a random stop.

We've learned from other jurisdictions that it also acts as a significant deterrent for individuals who think there is some opportunity for them to calculate how much alcohol they can drink before getting behind the wheel of a car. We have learned from other jurisdictions that people will not want to take chances in terms of drinking before they get behind the wheel of a car. In our view and with that broad public policy reason in mind, we are putting forward mandatory screening to ensure that we do everything we can to keep our roads safe. Based on that public policy objective and the concept of reasonableness in terms of a very regulated environment, we deem it entirely appropriate to achieve its objective.

[Colin Fraser, Liberal, West Nova, NS]

Do you think it will be important to follow how this is actually being implemented in real life when people are being stopped, to ensure that it is not impacting, for example, more greatly on racial minorities who could be stopped for irrelevant considerations? Do you think it's important that we follow statistics on this and make sure that proper training is in place to ensure that it is being effectively utilized?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I would take into your question that this bill does not provide law enforcement officers with additional tools. They are, however, lawfully able to pull drivers over on the roadside for the reasons we have discussed, and those reasons, whether they be questions about a driver's licence or questions around the impairment of an individual, have been upheld by the courts. I think that ensuring that we arm law enforcement officers with all the necessary tools and the necessary training and ensure that—and this is a different issue but a very important issue that we need to continue to address—we are looking at implicit bias and have training around that are things that I entirely support and, I know, that my colleagues in government support.

Ensuring that we monitor, however we can, and collect data, I think, is an important thing that we should do with respect to any new piece of legislation that comes into place. We'll continue to work with the provinces and the territories as we see the rollout of this important piece of legislation.

Jurisdictions need time to understand the impacts of part 2 of this legislation, and so the coming into force has been delayed.