Justice Committee on Sept. 18th, 2017

[Roberto De Luca]

We don't have an organizational position on whether a constitutional reference would be appropriate in this instance. I think letting the courts decide, in the sense of implementing the legislation and seeing after-the-fact challenges arise, is obviously problematic, because we think these provisions will sweep up a number of innocent individuals.

I want to clarify that the problem with discretion is the random roving stops and the initial decision to stop a vehicle. It is that act of discretion that we already know disproportionately affects people from certain communities, including racial communities. Even if you then say that the breath demand is mandatory for anyone who's stopped, we know that it's going to disproportionately affect certain communities.

[Murray Rankin, NDP, Victoria, BC]

The Minister of Justice is quoted as saying, “It would not give police any more powers than they already have under common or provincial law to stop drivers at random to determine their sobriety.” Her argument is that nothing changes. Your argument is that this is only going to give individual police officers enormous discretion to target racialized minorities, young people and the like on a whim. Your argument would be that we ought to make sure that this doesn't happen, obviously. Why don't we simply not wait until abuses occur but demand that the Minister of Justice send this to the courts for them to decide whether you're right or the government is right?

[Roberto De Luca]

Just to clarify one final point, I think the concern that there might be incentives to stop additional people is a secondary concern. The primary concern is that people from certain communities are already being stopped at a higher rate. What we are doing is increasing the invasiveness of the search. The effect of the new power, because it's going to have greater invasiveness, will fall disproportionately on certain communities. That's in addition to that. In terms of an organizational position, again, we don't have a position on that.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. McKinnon.

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

Professor Solomon, I'd like to understand a little bit better this MAS you're talking about. As I understand what you're saying, every car that comes along is stopped. In every car that comes along, the driver is tested.

[Prof. Robert Solomon]

At a mandatory alcohol screening checkpoint, like at current selective breath-testing checkpoints, the practice is that as cars come along, they're waved in. That doesn't change at all. The difference is that instead of the officer coming up to the car and asking you for your vehicle ownership, your licence, and your insurance to try to detect the telltale odour of alcohol, they simply present you with the machine and say, “Blow.” So in many ways, it may well be faster than our current selective breath-testing procedure.

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

But every car that comes by is stopped.

[Prof. Robert Solomon]

If there is no lineup, that is correct.

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

If there's a lineup, then some people go by.

[Prof. Robert Solomon]

They're not waved in.

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

I see.

[Prof. Robert Solomon]

It is just like what currently happens at a sobriety checkpoint. Exactly the same process of stopping occurs.

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

You believe that this will reduce the opportunity for racial profiling and so forth, because everybody who is stopped is tested.

[Prof. Robert Solomon]

That's correct. Right now it's up to the subjective judgment of the officer.

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

Would you then exclude selective breath testing?

[Prof. Robert Solomon]

If you had mandatory alcohol screening, you wouldn't need selective breath testing.

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

If a police officer stops a car because it's speeding or whatever and he speaks to the driver and says, “You know, I think this guy is loaded. I think he needs a breath test” would you exclude that?

[Prof. Robert Solomon]

I wouldn't exclude it, but the studies in western Europe, the EU, and I think also Switzerland indicate that when you test every driver stopped, it significantly reduces impaired driving, deaths, and injuries further because of its deterring impact.

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

In the context of expanding the tools for drug impairment, would you see doing the same thing for drug impairment as well?

[Prof. Robert Solomon]

Currently the proposal is to have oral fluid testing based on the officer having reasonable grounds to suspect the presence of drugs.

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

Wouldn't the same argument hold for this mandatory alcohol as would for drugs?

[Prof. Robert Solomon]

I think the difference is that the oral fluid testing there is in an earlier stage of development. It is felt, I understand, that we're not yet ready to make that mandatory. Some jurisdictions in Australia already have mandatory oral fluid testing.

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

I'd like to switch to Ms. Pentz and Mr. De Luca.

Do you think that mandatory alcohol testing as described, such that everybody who is stopped gets tested, would ease your concerns about random testing?

That's for Mr. De Luca, perhaps.

[Roberto De Luca]

We definitely think that if the provision were restricted to fixed checkpoints and there were procedures in place that ensured randomization so that, for instance, either everybody is stopped, or, if there's a capacity issue, every fifth or sixth driver is stopped, that would significantly curtail the problem of discretion and profiling. If the provision were changed to ensure that would be the practice—I mean it's been called the best practice—and it was codified, we would have significantly less concern with the provisions. We still think there would be issues—in part having to ensure that there's randomization and oversight and accountability—but I think it would certainly be a preferable provision.