Justice Committee on Sept. 18th, 2017

[The Chair, Liberal, Anthony Housefather]

Good afternoon, ladies and gentlemen. I'd like to convene this meeting of the Standing Committee on Justice and Human Rights.

I would like to start by asking our witnesses to pardon us for being late today. Unfortunately, this is a day when all members of Parliament from all parties are very pained, as we've lost our colleague Arnold Chan. We were paying tribute to him in the House.

One thing that Arnold always said was that parliamentary decorum, caring about your colleagues, and being non-partisan was something that was very important, and I think this committee hopefully is a testament to that. We all get along very well, and I know that will continue.

Today I'd like to welcome Mr. Rankin back to the committee to replace Mr. MacGregor.

[Murray Rankin, NDP, Victoria, BC]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

I would like to welcome Mr. Liepert to the committee. It's a pleasure to have you with us.

[Ron Liepert, Conservative, Calgary Signal Hill, AB]

Well, we'll see how it goes.

[The Chair, Liberal, Anthony Housefather]

Absolutely.

I'd like to welcome Mr. May, who is replacing Ms. Khalid today, and Mr. Ehsassi, who is replacing Mr. Bittle.

It's also a pleasure to commence 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, or as we all think of it, impaired driving.

We have a panel of very distinguished witnesses before us today. We have with us Mr. Robert Solomon, distinguished university professor, faculty of law, Western University.

Welcome, Mr. Solomon.

[Professor Robert Solomon, Distinguished University Professor, Faculty of Law, Western University, As an Individual]

Thank you.

[The Chair, Liberal, Anthony Housefather]

From the Canadian Bar Association, we have Kathy Pentz, who is the treasurer of the criminal justice section.

Welcome, Ms. Pentz.

We also have with us Gaylene Schellenberg, who is a lawyer and on the legislation and law reform committee.

Welcome, Ms. Schellenberg.

Finally, from the Canadian Civil Liberties Association, we have Roberto De Luca, who is the director of the public safety program.

Welcome, Mr. De Luca.

[Roberto De Luca, Director, Public Safety Program, Canadian Civil Liberties Association]

Thank you.

[The Chair, Liberal, Anthony Housefather]

In order to make sure that we don't run way over, I will turn right away to Mr. Solomon to begin. We will have opening statements of no more than 10 minutes from each group.

Mr. Solomon.

[Prof. Robert Solomon]

Thank you for the opportunity to comment on Bill C-46. I believe this is the sixth or seventh time I have appeared before the justice committee in regard to impaired driving issues.

As indicated, I'm a professor of law at Western University and I've been researching and writing in the field for about 35 years. I've worked with MADD Canada, its predecessor organizations, and other groups. However, I'm here today on behalf of myself, Dean Erika Chamberlain of the faculty of law at Western University, and Dr. Roy Purssell, professor of emergency medicine, University of British Columbia and medical lead of the British Columbia Drug and Poison Information Centre.

Among other things, Bill C-46 will simplify and clarify the federal impaired driving law, create new drug-impaired driving offences, authorize roadside oral fluid testing, and address many evidentiary procedural and technical concerns with the current law. We support these measures because they will improve the federal impaired driving legislation. However, in terms of traffic safety, by far the most important measure is the mandatory alcohol screening provision. Consequently, I will limit my comments to this issue.

This measure would authorize the police to demand a roadside breath test from any driver they have lawfully stopped. The test is conducted while the driver remains seated in the car, and the average stop takes approximately two minutes. The results of the screening test are not admissible in court, but rather are used exclusively as a screening mechanism to determine if there are grounds for further testing. The Criminal Lawyers' Association and others have claimed that mandatory alcohol screening is not necessary, and that Canada's impaired driving laws are working well. It's difficult to see how anyone can credibly make that claim given that impairment-related crashes kill about 1,000 Canadians a year, injure almost another 60,000 more, a disproportionate percentage of whom are teenagers and young adults. Those between the ages of 16 and 25 represent 13% of the population but 31% of alcohol-related crash deaths.

Our current law has left Canada with one of the worst impaired driving records among comparable countries. Consistent with earlier studies, the United States Centers for Disease Control reported that Canada had the highest percentage of alcohol-related crash deaths among 20 high-income countries in 2013. Although Canadians drink considerably less than their counterparts, they're much more likely to die in an alcohol-related crash. For example, Canada’s per capita rate of alcohol-related crash deaths is almost five times that of Germany, even though Canadians consume 33% less alcohol. They drink more, we die more.

The laws in these other countries do a far better job than the laws in Canada of separating drinking from driving. Not coincidentally, 17 of those 19 countries have comprehensive mandatory alcohol screening programs. In fact, according to a World Health Organization traffic study, 121 out of 180 countries have some form of mandatary alcohol screening. Canada's laws are not only out of step with comparable democracies in developed countries, they're out of step with the rest of the world.

Research over the last 45 years in Sweden, Finland, Denmark, Australia, the EU, Czech Republic, Switzerland, and numerous other countries, have shown that mandatory alcohol screening generates substantial and lasting reductions in impaired driving crashes, deaths, and injuries. For example, a 2004 study concluded that New Zealand's fully implemented mandatory alcohol screening program resulted in a 54% decrease in serious and fatal night-time crashes and saved society more than $1 billion in 1997. Ireland achieved similar reductions in crash deaths and injuries within a decade of enacting its mandatory alcohol screening program in 2006. Rather than overburdening the courts, as has been suggested by some people, the introduction of mandatory alcohol screening in Ireland was the major factor in impaired driving charges dropping from 18,500 in 2006 to 6,000 in 2015.

While the dramatic traffic safety benefits of MAS, mandatory alcohol screening, were first established by studies in the 1970s, 1980s, and 1990s, this body of research is wholly consistent with recent research from New Zealand in 2004, the Netherlands in 2005, Switzerland in 2006, even the United States in 2006, Denmark in 2007, Estonia in 2007, Czech Republic in 2010, the European Union in 2010 and 2003, Hong Kong in 2013, Ireland in 2015, and Australia in each of the last four years. These studies are directly relevant and can hardly be considered dated. Moreover, many of the studies I've referred to took into account potentially confounding factors.

The assertion that there is no direct evidence that mandatory alcohol screening is better than selective breath testing, the system we currently have, is simply false. The sharp decreases in fatal crashes that occurred in Queensland, Western Australia, New Zealand, and Ireland occurred after those jurisdictions moved from selective breath testing to mandatory alcohol screening, exactly what would occur in Canada if the mandatory alcohol screening provisions in Bill C-46 were enacted.

Critics have claimed that mandatory alcohol screening would lead to targeting of certain groups. In fact, the opposite is true. Canadian police currently have the power to stop vehicles—both under common law and under provincial statute in most provinces—to question the drivers about their driving, their sobriety, their licence, and their insurance. Somewhere between four million and six million Canadians are stopped each and every year at sobriety checkpoints and during routine police patrol activities. Currently, the processing of these drivers is based on the officer's subjective assessment, using his or her own unaided senses. Mandatory alcohol screening would change only one aspect of the existing law, namely, the basis for demanding a roadside breath test. In contrast to the current system, under mandatory alcohol screening, all drivers passing the checkpoint are stopped, and all drivers are tested using an objective screening test rather than the officer's subjective judgment. Mandatory alcohol screening limits subjectivity in assessing drivers.

MAS, mandatory alcohol screening, will be challenged under the Canadian Charter of Rights and Freedoms, but we have to put mandatory alcohol screening in the context of other accepted screening procedures that occur on a daily basis. Millions of Canadians are routinely subject to mandatory screening at Canadian airports—131 million, apparently, the last data indicates—at our borders, in courts, and in many other government buildings. The Canadian courts have never held that these mandatory screening procedures violate the charter. To put it bluntly, far more Canadians are killed on our roads in alcohol-related crashes than in attacks at our airports, borders, and courts. Mandatory alcohol screening is less intrusive, inconvenient, and stigmatizing than are many of these other screening procedures. It operates in exactly the same way and serves the same protective purpose. Given that the courts have upheld the constitutionality of airport, border, and courthouse screening, there is no principled basis for reaching the opposite conclusion in terms of RBT. I am pleased to leave further discussion of the charter to my colleague Dr. Peter Hogg, Canada's pre-eminent constitutional law scholar, who will be appearing in the next session.

Decades of experience in dozens of countries indicates that implementing a comprehensive mandatory alcohol screening program would save hundreds of lives, prevent tens of thousands of injuries, and reduce the social costs of impaired driving by billions of dollars a year. Rather than overburdening the courts, mandatory alcohol screening has been shown to reduce impaired driving charges and prosecutions. Frankly, it's about time that Canada's impaired driving law focused on protecting the public rather than immunizing impaired drivers from criminal responsibilities for the needless deaths and injuries that they cause on our roads.

The major problem has never been a lack of research, but rather a lack of political will. Parliament should follow the evidence, enact the MAS provisions in Bill C-46, and finally bring Canada's federal impaired driving law into line with the laws in the rest of the world.

I would be happy to provide the committee and my colleagues with a copy of our published and unpublished studies that document the position that we've taken here today.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Solomon.

We will now move on to the Canadian Bar Association. Ladies, the floor is yours.

[Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association]

Thank you for inviting the Canadian Bar Association to discuss Bill C-46 with you today. The CBA is a national association of over 36,000 lawyers, law students, notaries, and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice, and that aspect brings us to appear before you today.

The CBA's criminal justice section consists of experienced lawyers who practise in Canada's criminal courts on a daily basis from both the prosecution and defence side. With me is Kathryn Pentz, the current chief crown attorney of Cape Breton and secretary of our national section. She will address some main points from our submission in response to your questions.

Thank you.

[Kathryn Pentz, Treasurer, Criminal Justice Section, Canadian Bar Association]

Thank you.

The criminal justice section of the Canadian Bar Association is pleased to comment on Bill C-46, which proposes to amend Canada's impaired driving legislation. The section recognizes the importance of road safety and the need to ensure that Canadian law offers effective enforcement mechanisms to address impaired driving. As front-line practitioners, crowns and defence lawyers, the CBA feels that we are very familiar with the operation of the law in this area and the demands impaired driving cases place on the system.

The reality is that litigation of impaired driving consumes significant court resources, and any change should be approached cautiously and only when shown to be necessary. Part 1 of the bill deals with impairment by drugs. Drug-impaired driving is a major concern and with the expected legalization of marijuana, the number of drivers on the road under the influence of marijuana is likely to increase. We appreciate the need to address this reality.

Part 1 of Bill C-46 would amend section 253 of the Criminal Code to provide acceptable levels for drugs, as we now have for alcohol. However, the reality is that it is much more difficult to determine an impairment level for drugs than for alcohol. Most experts will agree that everyone is impaired to some degree by alcohol at .08, but the analysis is not so simple in relation to drugs. In the fall of 2016, I had the opportunity to attend a government-sponsored conference in Quebec City on marijuana-impaired driving. The experts there from both the U.S. and Canada were unanimous that it was impossible to set a limit at which all drivers would be impaired by marijuana. Habitual users will have a higher tolerance and will not be impaired as easily as an occasional user. If the limit was set at five nanograms, a habitual user could fail the test but not necessarily be impaired. In contrast, an occasional user might pass the test but still be quite impaired.

The CBA is an association of lawyers, and unfortunately we cannot offer scientifically valid solutions. What we want to do today, however, is identify this as a problem and say that in order to comply with Canada's Constitution, any proposed limits must link the concentration level to impairment based on proven scientific evidence.

Part 2 of Bill C-46 would replace the existing criminal legislation on impaired driving with an entirely new regime. From the perspective of front-line practitioners, both the crown and defence, this is extremely problematic. In fact, our first recommendation is that part 1 of the bill proceed and part 2 be deleted.

Impaired driving is one of the most extensively litigated areas of criminal law, and every aspect of the existing law has been subject to intensive constitutional scrutiny. The law is now settled. When cases are litigated, the arguments are mainly about the facts of a particular case and how they relate to the established law. We are not arguing on how the law of those sections should be interpreted. If part 2 of Bill C-46 were proclaimed, we would basically be back at square one, arguing interpretation and constitutionality of the new provisions.

The criminal justice system is still struggling to deal with the time limits recently imposed by the Jordan decision of the Supreme Court of Canada. The government has recognized that court efficiencies are at a critical point. The Senate has recently released its report with recommendations to achieve greater efficiencies. We all acknowledge that court delays are a major concern. The CBA's criminal justice section believes that this is not the time to impose legislation that will add significant demands on the system. A complete revision of impaired driving laws, in our opinion, is unnecessary. Apart from the need to address drug impairment with the new technological advances on the market, the existing laws are not deficient. Any deficiencies that we see arising would result more often from a lack of training and resources than from problems with the existing legislation.

I will offer a few examples of our specific concerns in relation to part 2 of Bill C-46.

Proposed subsection 320.14(5) provides a defence to “over 80” if the driver consumed alcohol after driving, had no expectation that they would be required to provide a sample, and the levels were consistent with a level under 80 milligrams at the time of driving.

The aspect of having no expectation that they would be required to provide a sample is something new in legislation. The language “no reasonable expectation”, who will have to prove or disprove that expectation? What is a “reasonable expectation”? Presently, if an individual attempts to skew Breathalyzer results by consuming large amounts of alcohol after driving, we have the option of charging that individual with obstruction of justice. The only addition of this “no reasonable grounds to believe that one would be asked to provide a sample” is to introduce new terminology that would spawn further litigation.

We also feel very strongly about the mandatory roadside testing under proposed subsection 320.27(2). That testing is provided when the officer has a screening device. First and foremost, we have to recognize that it would involve a tremendous input of resources to get these screening devices out there, but the essence of the CBA's objection is that it is random testing. We view this as a violation of section 8 of the charter and believe it would not withstand constitutional challenge.

Advocates of random testing frequently look to Australia and its experience, where there was a significant reduction of fatal and serious crashes following the introduction of random testing, but we have to recognize that Australia does not have a charter of rights. More importantly, when they went to random testing, they went from no testing to random testing. In Canada, when we went from no testing to suspicion-based testing, we also had a reduction. We can't look at the Australian model and assume that we are going to have the same reductions.

The other reality, Ireland, has had some success, but again, Ireland deals with drinking and driving largely under an administrative scheme as opposed to a criminal justice scheme.

When we are looking at mandatory roadside testing, it's important that we recognize those factors and not simply jump aboard other studies and assume that we are going to have the same results with our existing legislation and without going to the administrative regime that has been seen in other countries.

The CBA is also concerned about proposed paragraph 320.28(2)(b), which seems to allow any police officer to completely bypass the drug enforcement officer and make a demand for a bodily substance. Under the existing legislation, if an officer believes a person is impaired, they may demand that the person comply with testing by a properly qualified police officer, a DRE officer.

Under the new legislation, the police officer can do that, or they can bypass the DRE officer directly and make their own demand for a bodily substance. This is, in essence, totally bypassing the need for the trained officer. We have a situation where the DRE officer, who is trained, has to go through tests before he can make a request for bodily samples, yet the untrained officer can just make a request for bodily substances without doing any testing. We view that, again, as a violation, and we believe very strongly that untrained officers should not be permitted to make a demand for a bodily substance. That is far more intrusive than making a demand for breath.

Proposed section 320.29 amends the section dealing with warrants after an accident resulting in death or bodily injury. However, unlike in the existing warrant section, the officer does not need to have any grounds to believe an offence was committed, only that there was an accident, coupled with a suspicion that the person has drugs in their system—not “had” drugs in their system at the time of the accident, but “has” drugs in their system at the time of the request of the warrant. There is no linkage at all to the drugs or the alcohol or the accident. This could basically allow the police to make a request for a warrant in any case where there's a death or bodily harm even where there's no allegation of an offence by the person targeted. Again, there are significant charter implications for such a broad authorization.

Bill C-46 still contains mandatory minimum sentences. We were pleased that the extent that was in Bill C-226 was removed, but mandatory minimum still exists in Bill C-46. The CBA has long opposed mandatory minimum sentences and we continue to do so. The minister has also recognized these as problematic and we support the judicial discretion to determine the appropriate penalty in this case, in individual cases.

Proposed section 320.23 provides that an offender is not subject to mandatory minimums if he or she completes a treatment program, but under Bill C-46, that can only happen with the crown's consent. We believe that it should be the court and not the crown who determines if a treatment program is required. We are also concerned that the lack of available treatment facilities in some jurisdictions could result in inconsistencies in the application of this section.

Thank you for your attention and I welcome any questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your presentation.

We will now move to the Canadian Civil Liberties Association.

Mr. De Luca, the floor is yours.

[Roberto De Luca]

Thank you very much for the opportunity to appear before you today. I'm Rob De Luca. I am a lawyer and a program director with the Canadian Civil Liberties Association.

I would like to begin by emphasizing that we support the goal of this bill. The government clearly has a strong role to play in combatting the persistent social problem of impaired driving. However, we submit that this bill, in its current form, is not the answer. In our written brief, which unfortunately wasn't here in time for the official translation, we specifically address four areas of concern: mandatory alcohol screening, the increase in mandatory minimum fines, the increase in maximum allowable penalties, and the new statutory presumptions in the drug-impaired context.

This afternoon I will focus my submissions on the provision authorizing mandatory alcohol screening, otherwise known as random breath testing. As we detail in our written materials, we have significant concerns about the likely impact and the constitutionality of this expansion of police stop-and-search powers. Currently, police officers in Canada are authorized to stop a vehicle to check vehicle fitness, licence, registration, and sobriety. A sobriety check must be limited to observing an individual's behaviour, speech, and breath. What is impermissible, and we believe unconstitutional, is a random roving stop for the purpose of a roadside breath demand.

The Supreme Court of Canada has held that a breath demand engages individual charter rights. Among other things, a breath demand constitutes a search and seizure that engages an individual's reasonable expectation of privacy. For this reason, police may currently demand a roadside breath sample only if they have reasonable grounds to suspect that a driver has alcohol in his or her body. This framework is frequently referred to as selective breath testing.

Random breath testing would mark a fundamental change in our law. Current expectations dictate that an individual is susceptible to a search and seizure only when officers reasonably suspect that the person has done something wrong. The random breath testing framework, by contrast, requires that one must now prove that they have done nothing wrong. This transforms the police-citizen interaction; the presumption of innocence is replaced with a presumption of guilt.

We recognize that there are written opinions suggesting that the implementation of random breath testing would be constitutional. I would like to raise two major reasons why we believe random breath testing is not a justifiable limit of charter rights. First, I will discuss the lack of evidence justifying this increased intrusion on charter rights. Second, I will discuss the impact that an additional arbitrary search power will have on individuals, and in particular those who come from minority communities.

It is true that the introduction of random breath testing has been revolutionary in many countries. Random breath testing does work to deter impaired driving, but the correct question is not whether random breath testing works. In Canada, what we need to ask is whether random breath testing will be more effective in deterring impaired drivers than is our current regime of selective breath testing, a practice that we have had in place for decades, which does less to limit the charter rights of individuals. This is a question that is extremely difficult to answer. Indeed, we think that a review of the research on this topic suggests that it is a question that it is not possible to answer on the basis of the current research and the existing international comparators, particularly New Zealand, Australia, and Ireland.

There are two main difficulties with any attempt to conclude that the success of random breath testing in other jurisdictions would carry over to the Canadian context. First, the vast majority of jurisdictions that have implemented random breath testing did not have any roadside testing program before they introduced the program. The successes of these programs do not speak to the comparison between random breath testing and selective breath testing. If random breath testing is adopted in Canada, it will be implemented in a country that has had decades of RIDE programs, in which drivers have become habituated to being stopped on the side of the road for the purposes of a sobriety check.

In Canada, selective breath testing, combined with other initiatives, has led to our own revolution in impaired driving. We've seen the percentage of driver fatalities involving alcohol drop from 62% to roughly half that mark today.

While there are some jurisdictions that implemented random breath testing after first implementing selective breath testing and experienced an additional decline with the introduction of random breath testing—again, the comparatives here are New Zealand, Ireland, and certain jurisdictions in Australia—the success of random breath testing in these countries cannot be divorced from the host of other measures to combat impaired driving that were introduced at the same time, such as drastically increased enforcement and publicity efforts. As such, it is simply not possible, on the basis of the existing research, to tease apart the impact of implementing random breath testing and all of the other considerable efforts that went on at the same time. For this reason, we view the projected impact of random breath testing implementation in Canada as more speculative than certain.

This brings me to our second broad area of concern. A speculative effect is simply not sufficient to justify authorizing police powers that we know will limit charter rights. We are especially concerned about the impact that an additional arbitrary police search power will have on individuals who come from minority communities. The current proposal would not limit the new search power to stationary checkpoints, where discretion is curtailed and therefore the risk of racial profiling or other improper exercises of police powers is reduced. Those who are already disproportionately stopped while driving will now not only be pulled over and questioned, but required to provide a breath sample as well. For those individuals who tend to be singled out disproportionately, a breath demand during a so-called routine stop will frequently be experienced as humiliating and degrading. It is a mistake to think that a breath demand will, in fact, always be a quick and routine affair. Many individuals will be required to exit the vehicle and stand on the side of the roadway, or sit in the police cruiser, while they provide a breath sample.

This factual background informs our constitutional analysis that random breath testing is unconstitutional as currently presented. As indicated earlier, we have spoken to additional concerns with Bill C-46 in our brief. I would urge the committee to examine our written submissions along with the detailed recommendations in our brief that are aimed at addressing our most serious concerns.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much to all of the witnesses.

We'll now move to questioning by members of the panel. We'll start with Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Chair, I'll be splitting my time with my colleague, Mr. Cooper.

Mr. Solomon, thank you very much for this address and all the contributions, quite frankly, you've made over the years. Among other things, you said that you had a number of papers, published and unpublished, and I would appreciate it very much if you would forward those to us for our study on this, and I thank you for that.

Professor, you said that one of the advantages of the mandatory testing is how quickly the initial interaction would be. You said two minutes. I presume this does not include any sort of an assessment of the possibility of drugs in an individual. Is that correct?

[Prof. Robert Solomon]

There are studies on how long it takes, from the time they're stopped to the time a person is released from what is called an RBT, random breath testing, checkpoint. The average is two minutes. In fact, I drove through one of them with an academic colleague. The testing took 30 seconds and it took about a minute and a half.

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's certainly going to become more complicated, in terms of what this bill does with respect to marijuana and the use of that.

Just to clarify what you said, was it New Zealand that went from 18,500 charges before the courts and reduced it to 6,000, or was that Ireland?

[Prof. Robert Solomon]

That is correct; 18,500 to 6,500, I think. They introduced RBT with what they would call mandatory alcohol testing in 2006. In 2011, there were additional changes to their law, going from .08 to .05. However, when you had only the RBT change, charges dropped from 16,000 to 9,000. I actually have the numbers, so I want to make sure I get—

[Rob Nicholson, Conservative, Niagara Falls, ON]

You don't have to get that—we'll get that—but I think the message you gave is very clear.

[Prof. Robert Solomon]

RBT was the major factor in the decrease.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

Ms. Pentz, you heard what Professor Solomon had to say. One of the concerns you have is the system getting clogged up with even more cases involving impairment. You heard from Professor Solomon that in the case of New Zealand, there in fact has been a reduction in the courts that would be pretty significant. Are you buying into that at all?

[Kathryn Pentz]

Not particularly, because again, we have the Charter of Rights and Freedoms. That certainly—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes, but quite apart from that, do you think it would unclog the system if in fact this were upheld, as Professor Solomon says it would be upheld, by the charter?