Justice Committee on Sept. 18th, 2017

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. DelBigio, you said that the levels of alcohol or drugs are not relevant. You suggested that someone was saying that.

Weren't those who were testifying saying to us that they're not the only measure of a person's impairment? Don't you believe that someone who perhaps has never tasted alcohol before who has a couple of drinks may in fact be impaired, quite apart from whatever level is in his or her blood system? Someone who is used to drinking a lot of alcohol may have several drinks and in fact may not be impaired. It's just one of the tests.

Isn't that a fairer description of what they're talking about?

[Greg DelBigio]

I must say that I regard this as complex proposed legislation. I hope I've interpreted it properly.

There's no doubt that a person can be impaired by drugs or alcohol. There's no doubt, as I understand it, that different amounts will have different effects on people.

My remarks were really directed to the defences that are available to a person in a courtroom. If a person is charged with an offence that relates to drug or alcohol consumption, the person should have the opportunity to deny drug or alcohol consumption and to have that counted as relevant in the court proceedings. If there are provisions that provide a certain weight or reliability to the drug or alcohol testing mechanisms and the way they can prove consumption in court, there needs to be a way to effectively rebut that.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You're not surprised. You pointed out very clearly where these sections would be challenged, but isn't that what's going to happen anytime we change the laws in this area? Somebody will challenge it. In fact, I think that's your business, isn't it?

[Greg DelBigio]

There certainly are some lawyers who do these cases in the hundreds and indeed the thousands. There's no doubt that this area of law is very extensively litigated. Sure, it's going to be challenged, and it's your job to do your best to ensure that this is constitutional, and my job to suggest ways in which it might not be, if it is.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Fair enough.

[Greg DelBigio]

The concern with challenges is indeed really the time that it takes in court and uncertainties that arise as these cases work their way through the system.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

You pointed out, Mr. Stamatakis, that it actually clarifies some of the different provisions with respect to impaired driving which may create more certainty as to what can and cannot be done.

Thank you very much for both your testimonies.

Let me ask you this. Sir, you indicated that there are different clarifications and certain aspects of the law that you like, but isn't the bottom line, though, that you're going to be busier than ever? Isn't there going to be more impaired driving, in your opinion? You've had a long history in this area, but if you start adding legal marijuana to the availability of alcohol, are we going to see more impaired driving charges next year?

[Tom Stamatakis]

I think there's a significant amount of impaired driving now.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I agree.

[Tom Stamatakis]

Whether or not, I think people are anticipating there will be more impaired driving with the introduction of legislation—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Are you anticipating more?

[Tom Stamatakis]

I guess my answer is there's already an overwhelming amount of impaired driving, so I'm not sure that there will be more or if we're going to capture it better because we're going to be tracking both impaired driving by alcohol and also by drug, whereas historically we focused mostly on alcohol.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Fair enough. Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now move to Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you both very much for being here and providing excellent presentations. Mr. Stamatakis, I will start with you.

I will pick up on the last point with regard to being able to better capture and understand what's actually happening with, perhaps, drug-impaired driving. The announcement was made recently by the government regarding money. I think it was $274 million in total, part of it for training, building law enforcement capacity, providing access to devices, public awareness and research. Do you think all of that is going to be helpful in not only getting the message out there that these are not acceptable activities to participate in, but actually give the tools to the police officers themselves to be able to detect impaired drivers?

[Tom Stamatakis]

Absolutely. I think the announcement was a welcome announcement. I think there are lots of follow-on discussions about to happen around how those funds are going to be allocated and how we make sure that the appropriate funds get to local police forces so they can build the capacity to better respond to impaired driving, whether it is by alcohol or drugs. It was a welcome announcement and I think it will help build capacity, but I think that discussion needs to be ongoing because this is new, uncharted territory.

We've looked at other jurisdictions where it seems that there is more impaired driving. Whether there's more impaired driving by drug or whether they're just detecting it more because the legal framework has changed, I think it's early to tell, but this discussion has to be ongoing because police agencies, police services across the country are going to be challenged much like they are now. We're all struggling with resources, and this is another piece to the puzzle that needs to be responded to, so I think it's important for the government to be an active partner in the response.

[Colin Fraser, Liberal, West Nova, NS]

One aspect of this bill deals, of course, with drug impairment and adding.... First of all, currently, if somebody is driving and is impaired because of smoking cannabis, for example, can you talk a bit about how a police officer might acquire reasonable suspicion to carry on the investigation with regard to somebody being impaired by marijuana now?

[Tom Stamatakis]

Typically, you're going to look for smell, symptoms the person who's impaired might be exhibiting, whether it's red eyes, how they're talking, or slurred speech. You build your grounds that way and conduct the investigation. At a certain point, when you've formed the suspicion that the person's impaired now with a drug, you would bring in somebody who's had the drug recognition training or you'd conduct your own field sobriety test. Our challenge is we don't have any mechanism to quickly test for the substance as we do with alcohol, with the approved screening devices that we have.

If I wanted to make a comparison, the best-case scenario is that we come up with a device, or there's a device that becomes available that allows a police officer on the street to very quickly test for whatever drug and at least determine that there's impairment by drug, and then follow along from there.

[Colin Fraser, Liberal, West Nova, NS]

In addition to the standard field sobriety tests that go on now, will the oral fluid screening device assist police officers in being able to ascertain reasonable and probable grounds to suspect the person is impaired by drugs?

[Tom Stamatakis]

That's the hope, absolutely.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

Mr. DelBigio, one of the things you mentioned in your presentation was regarding court delay, backlogs, and obviously, the problem that our criminal justice system faces, especially in light of Jordan. A part of this bill deals with the interlock device and getting rid of the waiting period. Is there any merit that, if somebody were to get a conviction for impaired driving, they no longer—with regard to alcohol, anyway—have to wait the three months for them to be able to use the interlock device? Do you see that encouraging people to plead guilty at an earlier stage perhaps because they don't have that fear of having to wait the three months? Do you see any merit in that alleviating some of the cases that otherwise would take a while to get through the system, and perhaps lead to a guilty plea at some other time, when the person had arranged their affairs? Do you see any merit in the fact that that could help get rid of some of these cases earlier on or be dealt with more expeditiously?

[Greg DelBigio]

People plead not guilty for a variety of reasons: one, because they are entitled to do so as a matter of law; two, because they are not guilty; three, because they can beat the charge; and four, because even if they're not sure they can beat the charge, the consequences are so significant that it's worth the try. The consequences are the record of criminal conviction and the stigma that attaches to that and the way in which that can affect employment and travel. The second part is the prohibition. The third, perhaps to a lesser extent, is the fine. If the prohibition issue can be addressed, might it encourage guilty pleas in appropriate instances? It might. It's not going to hurt, as it's a good provision. Would it have a significant or dramatic effect upon the rate at which these cases are contested? My guess is no.

[Colin Fraser, Liberal, West Nova, NS]

Do I have more time?

[The Chair, Liberal, Anthony Housefather]

No, you're out of time. Thank you very much, Mr. Fraser.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I just want to say how proud I am to see two eminent British Columbians giving testimony here today. This is great.

I'm going to start with Mr. DelBigio. I want to ask you two specific questions.

You raised a very interesting point about the expression in the bill, “impaired to any degree”, and I think you suggested it was maybe vague. Were you suggesting that, as a consequence, it might not pass muster under section 7? If so, how would you suggest we recommend it be fixed?