Justice Committee on Sept. 18th, 2017

[Greg DelBigio]

If there is a legal standard, which this seems to impose, then it needs to be sufficiently precise that it is understood. “Impaired to any degree” suggests that there is a legal standard that can be satisfied, although it is barely detectable, so it is impairment to a barely perceptible degree. That will give rise to questions, both with respect to proof, so an evidentiary question.... If a person says that he or she was satisfied there was impairment to a degree that was barely perceptible, what is the evidence that is needed to satisfy that? I understand that the language might have been designed as its purpose to capture more, but in capturing more, it creates an uncertainty. I'm not sure why the drafters would not just use the term “impaired”.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

The second point of many that you made was that police officers can give an opinion now, but they're not, I presume when you're referring to experts, like drug recognition experts under the scheme, and they can now give opinion evidence, and you say that we can challenge its weight, just as one challenges expert opinion evidence generally. My question is, what turns on that? So what that we're going to challenge, just like any other expert, the weight that should be attributed to it? What turns on that?

[Greg DelBigio]

It's unclear exactly how that would operate. As a technical matter, I think that the importance of a person being qualified as an expert is that the person is permitted to offer opinion evidence, as a matter of law of evidence. If a person is being advanced as a proposed expert, the person can be challenged, both with respect to whether he or she is an expert, and then if so, the weight that should be given to the expert's opinion. How would this change things? It's a little unclear, but I would hope that the way in which this would not change things is that there would be some sort of a presumptive weight that would go to a person's opinion, as a result of the operation of this provision.

[Murray Rankin, NDP, Victoria, BC]

Mr. Stamatakis, thank you very much for being here.

The drug recognition experts of course undergo extensive training to see if they can determine impairment. There are only about 600 such officers, I'm told, across the country. Some have suggested that we need 2,000 to meet the demand requirement of this legislation. Are you satisfied that training will be available to you? Are you concerned that your members of the CPA will now be asked to provide opinion testimony in this regard? Do you think the training will be adequate? Have you received any indication yet of whether there will be a budget for it and the like?

[Tom Stamatakis]

Well, training is a concern, anticipating that the demand for drug recognition experts will increase. Having said that, police officers give evidence in court every day. I can recall that when I was an operational police officer, some of the most challenging evidence to give was around impaired driving cases in terms of describing the observations I made as a police officer of the symptoms of impairment, etc. I'm not really concerned about that piece of it, because when it comes to impaired driving, police officers have always had to give that kind of evidence in court. It's always been challenged. Ultimately it's up to the trier of fact, the judge, to determine what weight to place on what evidence and arrive at a conclusion. I don't see anything changing in that regard.

I think the funding announcement by the government goes a long way to alleviating some of the concerns around the training capacity. There's no question that there is a desire in the police community to train more police officers as drug recognition experts so that they are available, when front-line police officers believe they have someone who is impaired by drugs, to properly assess. The case becomes stronger and more likely to succeed from a prosecution perspective. Police officers are always giving that kind of evidence in court, so I don't see that changing.

[Murray Rankin, NDP, Victoria, BC]

I'm told that the RCMP, along with five other police forces, were selected to test these new roadside oral fluid screening devices for drug-impaired driving, under some sort of pilot project. Do you have any evidence on that, or is there anything you've heard from your members about that experience?

[Tom Stamatakis]

No, I have not yet heard much feedback from that experience, so I can't really comment.

There are concerns around weather, reliability, and those kinds of things. Of course, whatever equipment we end up using will inevitably have to be proven in court as being reliable as we move forward.

[The Chair, Liberal, Anthony Housefather]

That's time.

Monsieur Boissonnault.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Chair.

Mr. Stamatakis, thank you very much for your testimony. I noticed that you mentioned in your comments that it will be important, because you'll have new mechanisms. Police officers will have new mechanisms at their disposal.

I also think it's important to just iterate this at the committee. Of the $274 million our government is allocating to support this legislation, some $81 million will go toward training, capacity-building, and providing the cost over five years of the oral fluid screening devices.

In your testimony, you said that this legislation will help you to have more mechanisms to catch existing offenders, and that it will also allow police officers to...that there will be efficiencies created by this legislation. I'm wondering if you could share more information on what you meant by that part of your testimony.

[Tom Stamatakis]

We can take roadside stops as an example. If as a police officer, as part of my lawful stop, I can make a demand without having to build my reasonable suspicion that a person is impaired, then that should, theoretically, speed up the process, because I won't have to develop those grounds. Hopefully, when I get to court and I'm testifying, I don't have to spend a ton of time trying to explain what my grounds were and why I made the demand of the person that I thought was driving impaired. That's just one example.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Sure.

As we shift from a discretionary roadside testing framework to one where everybody gets the test, what type of offenders will police officers be able to catch when we move from one framework to this proposed framework?

[Tom Stamatakis]

Just as an example, the typical framework would be the holiday road checks that police organizations conduct across the country. As it stands now, I approach the car, if I'm working one of those, and I have to ask the driver questions. I'm relying on those answers to be able to make a demand on that driver.

The way it stands now, based on the legislation the way it's proposed, I don't need to do that. I can just simply ask the driver to provide a sample using an approved screening device. I don't need an acknowledgement, for example, that the driver was drinking or consumed drugs in order to be able to do that. Even from an efficiency perspective, the opportunities we have to detect impaired drivers will be more efficient when we're doing that.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

I appreciate that.

We've seen from other jurisdictions that the implementation of a mandatory roadside screening process drops the fatalities dramatically. Before we get from testing to preventing fatalities, there's the whole court system and charging people.

What have you been hearing from your members about having a mandatory system and the anticipated, not necessarily percentage...but do your members think this kind of system will pull more people who have offended off the the road? Will it prevent them from harming other people and ultimately even change behaviour?

[Tom Stamatakis]

Yes, I believe it will, and that's certainly the feedback.

If I compare to what some of the provinces have done, and I'll use my home province of British Columbia, based on experience of the regulations that the provincial government introduced around the administrative prohibitions and impaired driving regulations, we're told they've made a significant impact on getting impaired drivers off the road. You're immediately prohibiting them from driving. In some cases, we're impounding their vehicles so they can't drive. It sets off a whole series of events that prevents those people from driving while they're impaired, thus making the roads safer.

I think this kind of a legislative framework will have a positive impact on the number of people who are driving impaired.

I'm just giving you my personal opinion. I'm sure there's research around it, but around my social circle in Vancouver and British Columbia, the people I talk to and the public I interact with, people are more aware now of impaired driving. They're less willing to take the risk because there's an immediate consequence to driving while impaired. You're going to be prohibited immediately. If you're over the limit, you're going to have your vehicle impounded for 30 days and will have to go through this process.

It has had a positive impact on reducing impaired driving in our province, and also, of course, then reducing the number of injuries or deaths that occur as a result.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much to both our witnesses, Mr. Stamatakis and Mr. DelBigio.

[Greg DelBigio]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

You were both very helpful and we really appreciate it. I want to again apologize for being late.

I'll ask our next panel of witnesses to come forward.

We will recess while we get our next panel up.

[The Chair, Liberal, Anthony Housefather]

We'll reconvene with our next panel.

I'd like to thank both Dr. Brubacher and Mr. Mann, for being here. We apologize for our tardiness. We ran over time in the House this afternoon, but we're delighted to have you here to help us better understand and get your viewpoint on this legislation.

I'd like to welcome Dr. Jeff Brubacher from the department of emergency medicine. He teaches in the faculty of medicine at the University of British Columbia. Robert Mann, senior scientist, is from the Centre for Addiction and Mental Health. Welcome, Mr. Mann.

Given the risk of losing a witness on video technology, we'll start with Dr. Brubacher, if that's okay with you.

Dr. Brubacher, the floor is yours, sir.

[Dr. Jeff Brubacher, Medical Doctor, Department of Emergency Medicine, Faculty of Medicine, University of British Columbia, As an Individual]

Thank you for the opportunity to speak.

I'm an associate professor at the University of British Columbia, with a research focus on impaired driving. I'm also an emergency physician at Vancouver General Hospital, which is one of Canada's largest trauma centres. I've worked at Vancouver General for over 20 years, so I've had a lot of experience seeing people with road trauma, and too much experience seeing people involved in crashes, injured in crashes involving impaired driving.

I'm happy to say that the rate of impaired driving, alcohol-impaired driving at least, has decreased over the years, certainly since I started practising, but it's still much higher than it should be. We're doing some research here in British Columbia studying drivers who visit the hospital after a crash and measuring drug and alcohol levels. We're finding, and this is recent data covering 2015, 2016, 2017, that about 18% of these injured drivers who come to the hospital after a crash, test positive for alcohol, and 15% are above the legal limit of .08%, so it's much higher than what it should be.

We're also looking at THC, the active ingredient in cannabis. We're finding that a number of drivers are using THC. About 7% of the drivers that we're seeing test positive for THC. About 4% of the drivers we're seeing have THC above two nanograms per millilitre. Just for perspective, other drugs are often seen. About 10% test positive for recreational drugs such as cocaine or amphetamines, and around 20% have used an impairing medication. So impaired driving is still a problem in 2017. With that background, I think Bill C-46 has a lot of good material in it that I think will help decrease the rate of impaired driving.

First, I want to say that I agree with random breath testing. I think it's a powerful measure. I think it will decrease impaired driving, prevent crashes and injuries. There are two observations from my research that support this. The first observation is that police do not always recognize drivers who are impaired by alcohol.

When we compared the results of our toxicology testing with police reports to see whether police suspected that the driver had used alcohol, we found that for drivers with a blood alcohol concentration between .08%, the legal limit, and .16%, twice the legal limit, in those drivers police suspected alcohol 58% of the time. Put the other way, they missed it 42% of the time. For drivers with higher alcohol levels, above .16%, so more than twice the legal limit—and these are drivers who's risk of crashing is 30 times higher than when sober; so a high risk of crashing in drivers who are going to be impaired—police suspected alcohol 80% of the time. The police were doing better, but they still missed 20% of the time. Random breath testing would get around that. Police won't have to suspect alcohol to test them, and I think they'll detect some of those drivers that they're currently missing.

The second observation, and this is from older research that we did some time ago, we found that many impaired drivers, even when they come to the police's attention, go unpunished. This is from the same basic method. We're looking at drivers who come to hospital after a crash and have alcohol levels tested, and we're looking at their alcohol results and seeing what their subsequent driver record shows. Were they convicted of impaired driving? What we found there is that for drivers with a blood alcohol level between .08 and .16, only 4.7%—so less than one in 20—were convicted of impaired driving. For drivers with a blood alcohol over .16, twice the legal limit, only 13.6%—so about one in seven—were convicted of impaired driving.

We don't know why these drivers are not being convicted, but I suspect that part of that problem is police having difficulty gathering the evidence they need. Again, I think that random breath testing would help them gather that evidence.

This is bad. It's bad because laws against impaired driving work by creating the perception in the public that if you drink and drive, if you're impaired and drive, you're going to be caught and you're going to be punished. That's what deterrence is about. When drunk drivers or impaired drivers come in contact with police and are not recognized as being drunk, are not charged with drunk driving, or get off on a technicality, that undermines the deterrent effect of those laws. I think random breath testing is a good way to get around that.

That's my first point: I agree with random breath testing.

My second point is that I agree with using roadside screening devices to measure drugs in saliva to help police identify drivers who use drugs.

In this same research, we looked at police reports and compared them with toxicology testing for THC, the active ingredient in cannabis. We found that for drivers with THC in the range of two nanograms to five nanograms per millilitre—that's not just positive but substantial levels—police suspected drugs in only 8.5%, or about one in 12 drivers.

It didn't get any better when the THC levels went up. We had 16 drivers where the THC was above five nanograms per millilitre. Police suspected drugs in only one of those drivers—6%—and I don't mean to say anything bad about police. It's difficult to detect moderate cannabis impairment. Police have a very difficult time detecting drivers who are impaired by cannabis. I think they need help to do that, and I think roadside oral fluid screening devices would be a valuable tool for police to help them detect these drivers.

The third point I wanted to make is that I believe in per se levels. I think per se levels for THC are the way to go. I think the levels chosen—two nanograms per millilitre and five nanograms per millilitre—are reasonable options. The best evidence shows that drivers who use cannabis have an increased crash risk. The exact THC levels where that risk starts to go up hasn't been as well defined as it has for alcohol, but two nanograms per millilitre and five nanograms per millilitre are certainly in line with the evidence we have.

The reason we need per se limits is that it's very difficult for police to prove that a driver is impaired. As for the current system of drug recognition experts, I'm not an expert on this, but I know enough about it to say that it has its role. It gives a systematic way for police to gather evidence, but it's difficult. It's a resource-intensive and time-consuming system, and it's not widely available. If you have a crash in a rural area, a drug recognition expert might not be able to get there. Also, it's most likely open to legal challenges.

Per se limits would be a far more streamlined and more efficient way of gathering evidence. Going back to the 1960s when per se limits were introduced for alcohol, there were dramatic decreases in alcohol-impaired driving. My hope would be that setting per se limits for THC would have the same effect for driving impaired by cannabis.

Those are the points I wanted to make. I'm happy to answer questions later. Thank you for listening.

[The Chair, Liberal, Anthony Housefather]

Now we'll move to Mr. Mann.

[Professor Robert Mann, Senior Scientist, Institute for Mental Health Policy Research, Centre for Addiction and Mental Health]

Thank you very much.

My name is Robert Mann. I'm the senior scientist from the Centre for Addiction and Mental Health in Toronto, or CAMH, as we call it. I'm a member of the epidemiology faculty at the University of Toronto.

In Bill C-46 the Government of Canada is proposing to revise Canada's impaired driving laws. The provisions being considered in Bill C-46 are supported by research and how impaired driving can be prevented. The bill addresses impaired driving in two general areas: driving under the influence of cannabis and other drugs, and driving under the influence of alcohol.

With regard to driving under the influence of cannabis and other drugs, we note that the Government of Canada has stated its intention to legalize cannabis use. This change in the legal status of the drug is consistent with the recommendation of the Centre for Addiction and Mental Health to legalize cannabis use to achieve the public health goals of controlling cannabis use and preventing cannabis-related harms. The success of the public health approach can be seen in the reduction in rates of tobacco use and in driving after drinking that have been observed in recent decades in contrast to evidence that cannabis use has changed little or may be increasing among some groups in the population.

However, regardless of the legal status of the drug, it is recognized that one of the major health problems associated with cannabis use is an increase in the risk of collisions and resulting casualties among those who drive under the influence of cannabis, or DUIC as I'll phrase it, and among their passengers and other road users as well.

Much research has been devoted to the impact of cannabis and traffic safety in recent decades. Laboratory studies indicate that cannabis affects basic physiological and psychological processes involved in the driving task and epidemiologic studies now show that DUIC increases the risk of collision involvement significantly. Currently, rates of DUIC in the general population are relatively low, but are much higher among some subgroups. For example, rates of DUIC among adolescent and young drivers now equal or exceed the rates of driving after drinking in these groups. Recent studies have estimated that between 75 and 95 deaths on Canadian roads in 2012 were caused by DUIC, that DUIC caused about 4,500 collision-related injuries, and that between 7,800 and 25,000 Canadians were involved in collisions caused by DUIC that year. Adolescents and young adults are most affected by these deaths, injuries, and collisions since they are most likely to drive after using cannabis.

Preventing collisions and casualties that result from DUIC is a very important goal and should receive more attention regardless of the legal status of cannabis. Combinations of legal measures with educational and remedial measures have been implemented in various jurisdictions across the world, but currently, because these measures are relatively recent, we know little about their impact in preventing DUIC. However, we can look to the impact of measures to prevent driving after drinking to inform our efforts to prevent DUIC-related collisions. Similar combinations of legal, educational, and remedial measures have been introduced around the world and the success of these measures in reducing alcohol-related collisions is considered one of the leading public health successes of the past century. The key to this success has been the introduction of per se laws, which make it an offence to drive if the level of alcohol in the blood exceeds the level specified in law. These legal limits have been shown to reduce rates of driving after drinking and resulting casualties in the population.

CAMH scientists estimated that Canada's per se law, introduced in 1969 and setting the legal limit for alcohol in Canada at .08% at that time, prevented over 3,000 deaths in Ontario alone between 1970 and 2006. This experience suggests that introduction of a per se or legal limit law, along with enabling the use of roadside oral fluid screeners to facilitate identification of drivers under the influence, should be central to our efforts to prevent DUIC-related collisions. Other jurisdictions have successfully implemented a similar approach and their experience can guide us here.

Although there is now much interest in the topic of driving under the influence of cannabis, it must be remembered that alcohol still accounts for a larger number of deaths and injuries than cannabis; thus, efforts to prevent these deaths and injuries are still essential.

One measure that would significantly reduce alcohol-related casualties on our highways is mandatory alcohol screening or MAS. MAS originated in Australia and Europe in the 1970s. All states in Australia have implemented MAS, as have many states in Europe and many other parts of the world. The key to MAS is allowing the police to request a breath sample without probable cause. This permits the processing of large numbers of drivers at the roadside as a way to increase general deterrence. This causes an increase in the average driver's perception of being caught if he or she drives while impaired, which is believed to be the mechanism for the beneficial effects of MAS on collision rates.

Evaluations of MAS have supported its effectiveness in reducing alcohol-related collisions and fatalities. Reviews have found reductions in alcohol-related fatalities across studies ranging from about 8% to about 71%, and an average reduction of 30.6% in accidents with injuries associated with introducing MAS has been reported. Because of these positive results, MAS has been supported by many health organizations. In a WHO-sponsored study of measures to prevent alcohol-related harms, MAS was one of the measures given its strongest support.

A second measure that would significantly reduce alcohol-related deaths and injuries on our roads would be the introduction of a legal limit of .05% in the Criminal Code of Canada. There is clear and strong scientific support for a legal limit of .05%. Above this level, it is clear that safe driving skills are impaired and collision risks are substantially increased. Reduction of the legal limit to .05% in other jurisdictions has provided substantial evidence of beneficial effects.

The potential impact on fatalities on our roads would be substantial. In 1998 CAMH scientists estimated, based on effects seen in Australia and Europe, that introducing a .05% legal limit in Canada could prevent between 185 and 555 deaths on our roads per year. Rigorous scientific research that has appeared since that time has supported and strengthened that conclusion.

In conclusion, driving under the influence of cannabis, alcohol, and other drugs is a significant public health problem. There is strong evidence that the deaths and injuries that result from this behaviour can be substantially reduced by effective public policies. The Centre for Addiction and Mental Health strongly supports the Government of Canada in its efforts to implement these policies and notes that the initiatives considered in Bill C-46 are consistent with the best scientific evidence for preventing the casualties that result from impaired driving. As the Government of Canada reforms the country's impaired driving laws, CAMH would be pleased to help in any way we can.

Thank you for having me with you. It's been an honour.

[The Chair, Liberal, Anthony Housefather]

Thank you very much to both of our witnesses.

We're going to move to questions, and we're going to start with Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Dr. Brubacher, you cited a few numbers during your presentation on the rates of conviction regarding impaired drivers. Could you repeat those, as well as your sources? They seemed to be a lot lower than I was led to believe, at least based upon other statistics that I've seen presented. Maybe I misunderstood you.

[Dr. Jeff Brubacher]

These were injured drivers seen in hospital after a crash, so there may be a different population. These are from about a decade ago. We compared toxicology testing done in hospital—alcohol levels—with their subsequent driver records. We found that of drivers with a BAC between .08% and .16%, 4.7 % were ultimately convicted of impaired driving. For drivers with a higher BAC, over .16%—more than twice the legal limit—it was 13.6%.

I would add that a similar study was done in Alberta—similar population and similar methods—and their conviction rate was slightly higher, but not much. I think it was in the range of 15%.

Of these particular populations of drivers, very few of them are convicted. We can speculate on the reasons for that, but the numbers are low.