Justice Committee on Sept. 18th, 2017

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

Thank you for that clarification.

Dr. Mann, I want to follow up on your testimony respecting mandatory breath testing.

I certainly agree that there are far too many people who are dying or being seriously injured on our roads. I'm all for stringent sentences and holding people who make that choice of getting behind the wheel impaired accountable for the seriousness of the crime they are committing when they do that.

In terms of mandatory breath testing, you made reference to Australia. When you look at New South Wales, for example, it was brought in at a time when it was really one of the first measures to crack down on impaired driving. In Canada around that time in the early 1980s or the late 1970s, we started to see check stops and RIDE programs. We didn't go down the route of mandatory breath testing, but we went down the route of selective breath testing. We saw a very significant reduction in the number of deaths and the number of injuries on our roads following those measures.

You then look at a state like Victoria where you have mandatory breath testing, yes, but things like booze buses are out on the roads, where you have two or three million people—I saw numbers indicating that—who are stopped each year by these booze buses. In other words, almost everyone is being stopped. When we look at the numbers and we see, say, there's a decrease of the context, the other measures beyond mandatory breath testing would seem to partially explain why we're seeing those decreases. In other words, they may not necessarily be attributable to mandatory breath testing.

[Prof. Robert Mann]

That's an excellent point.

Are you referring to the changes that have been seen in Australia?

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

Yes.

[Prof. Robert Mann]

Are you suggesting they may not be due to mandatory breath testing?

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

Not entirely. Again, there is mandatory breath testing, and then you have these booze buses, public advertising campaigns, and a whole series of measures that were introduced at one time.

[Prof. Robert Mann]

Yes.

It's very true that, when we look at the effects of a particular measure like mandatory breath testing, changes to legal limits, or RIDE programs, there are other things that need to happen.

I've said that legal limits and per se laws are important to introduce, but we also need education. If you passed a law and nobody knew about it, that really wouldn't have the effect you want it to have. I think you're correct that other things need to happen for mandatory breath testing to work as well as it can.

We have a colleague who's a criminologist in Australia, Ross Homel, who wrote a chapter for a book comparing the different experiences in the different states. He pointed out that some states really introduced it in a half-hearted fashion and there wasn't much testing that happened. Other states were what he called “boots and all”; I guess that's an Australian term. That's where you saw the biggest effect; it was where they had large numbers of people being tested and lots of education. From a general deterrence perspective you saw that the average person—you and I—would think, “Gosh, my chances of being detected are really high.” He clearly makes the point, and I would agree with you that you need all of these other pieces to achieve the kind of success that you can achieve with a measure like mandatory breath testing.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Go ahead, Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

I have no questions.

[The Chair, Liberal, Anthony Housefather]

Would you rather Mr. McKinnon went now and then you come later? You were down on the list this time.

Mr. McKinnon, are you okay to go ahead?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Yes, absolutely.

Dr. Brubacher, you were talking about the difficulty in recognizing drug-impaired drivers. You're very comfortable with per se levels in the legislation.

Does this mean that, for the drug recognition experts, it's not an effective tool? The officers who are having trouble recognizing drug-impaired drivers, is that just the run-of-the-mill officers, or do you include drug recognition experts in that category as well?

[Dr. Jeff Brubacher]

I think drug recognition experts are a useful tool, but that has to do more with the per se limits.

Let me answer the other part of your question first. In terms of recognition, these would be the front-line officers. The only way that a driver would come in contact with a drug recognition expert is if the front-line officers had reason to suspect that they were impaired by drugs, otherwise they wouldn't come in contact with the drug recognition expert.

Who we found are failing to identify drug-impaired drivers are the front-line officers. I think there are levels of impairment, just like there are levels of drunkenness. Someone can be a little impaired, enough that they're distracted more easily. Maybe their coordination is a little bit off and they're at a higher risk of crashing, but they're not so impaired that it's easy to pick up. It's similar to the notion that you don't have to be a staggering drunk to have an increased risk of crashing. It's the front-line officers who weren't detecting these people, and the front-line officers I think would be the ones who would be using the screening devices as well.

In terms of drug recognition experts, they definitely have their place, and I think it's possible for people who have used multiple drugs to be impaired while under a per se limit. You want to be able to detect that impairment, but it's just such a lengthy and difficult process that I think it acts as a barrier to convicting someone of impairment. I think they have their place, but it's not the perfect answer.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I've heard that long-time users of THC and frequent users of THC don't show signs of impairment as readily as, say, a new user. Do you think that per se limits put them at a disadvantage?

[Dr. Jeff Brubacher]

I think the per se limits have to be chosen carefully. I know, for example, that a heavy user could have a low level of THC, a nanogram per millilitre, that's detectable for a long time after they last use. You certainly don't want a per se level that's going to be catching everybody up in the net.

It's a difficult problem because on the one hand, you don't want the levels so low that you're detecting chronic users who might not be impaired. On the other hand, unlike alcohol, the THC levels can drop off quite quickly with time. It's hard to go from a level that may be four hours after a crash and to estimate what it would have been at the time of the crash. You can't back extrapolate the way we've learned to do with alcohol. If you have a level that's too high, you might have someone who was quite impaired at the time of a crash, and two hours later, by the time you get a chance to get blood and measure the level, their level has dropped below that. It's sort of a balance.

Other countries have used a slightly higher limit. Norway uses three nanograms per millilitre. I still think that, on balance, two is a reasonable level. I should put in a disclaimer that I don't have a lot of experience with seeing people who have used cannabis, measuring their levels, and studying their impairment. That's not my line of research. It's more at a population level, looking at the risk of crashing for most drivers.

I have one additional comment. To use the analogy with alcohol, there are people who are less impaired at a high alcohol level than others, yet we've accepted that, on balance, most people above .08 are not fit to drive, and it makes sense to have a per se level for alcohol as well.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

You may ask a really short question.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Dr. Mann, you're in favour of mandatory alcohol screening, and we've heard it expressed as having a roadside stop where everybody gets tested. Would you envision and like to see the same thing for drug testing?

[Prof. Robert Mann]

It's certainly something you could propose. I think it works for alcohol, and it works to the extent that it's enforced in a public fashion. Among other things it works because a large portion of the driving population may have been drinking, or might drink in the future if they have not had the experience of realizing, “Gosh, the police are out there. I'm going to get stopped, and I'm going to get screened.” If that situation applies to drug use, then I think it's perhaps something we might consider down the road. I don't think there are any evaluations of that kind of approach in the literature as of yet, so we don't know what kind of an outcome there would be, in contrast to what we understand about the effects of mandatory alcohol screening.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I'd like to build on what Mr. McKinnon was asking both witnesses, and invite comments from both.

The first point is the per se limits. Both of you support and believe in per se limits. However, the November 2016 report of the task force on cannabis legalization and regulation said the following:

...investment in research to link THC levels to impairment and crash risk is required to support the establishment of a scientifically supported per se limit. In addition, investments to support the development of accurate and reliable roadside testing tools are required.

I think the legislation is wise to not set in the law itself the standard as we do for alcohol, but rather to leave it to regulation, as we will understand over time, whether two nanograms or five or three or whatever is the right number. Are you satisfied that the per se limits will really tell us reliably whether a person's ability to drive is impaired?

I'd invite both of you to comment on that. They're both arbitrary numbers.

You pointed out, Dr. Brubacher, that in fact Norway uses a very different number. How can we be sure that we're getting this right?

Perhaps I could invite you, Dr. Brubacher, to start.

[Dr. Jeff Brubacher]

Sure. I wouldn't say that Norway is using a very different number. They're using three, which is between two and five—

[Murray Rankin, NDP, Victoria, BC]

Not four?

[Dr. Jeff Brubacher]

Well, yes, it's in that range. You're right, and we have to acknowledge that the research on when the crash risk starts to increase, exactly at what level, is not as well established as it is for alcohol. I think that most of the research would suggest that when you're above five, the crash risk does increase. We can also look at some of the experimental evidence that looks at impairment versus THC level—Sorry, Bob—but I think Dr. Mann does more of that research than I do. I don't do that research, but I think that can give you some additional insight into what the levels should be.

There isn't going to be a perfect answer, but I do think there's enough evidence that we should pick and choose a per se limit.

[Murray Rankin, NDP, Victoria, BC]

Dr. Mann, do you have anything to add to that?

[Prof. Robert Mann]

I would agree with Dr. Brubacher that there is enough evidence for us to, at least initially, pick per se levels based on the international literature, based on laboratory research. I think we know from laboratory studies the effects of cannabis on basic physiological and psychological functions and that we do detect impairment in the laboratory.