Justice Committee on Sept. 19th, 2017

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone, and welcome to the Standing Committee on Justice and Human Rights and our deliberations on Bill C-46. We are delighted today to have some very distinguished witnesses appearing before us. First I want to welcome Mr. Stetski; I think this is his first time at the justice committee.

[Wayne Stetski, NDP, Kootenay—Columbia, BC]

Yes.

[The Chair, Liberal, Anthony Housefather]

Welcome, Mr. Stetski, who is replacing Mr. Rankin, who is replacing Mr. MacGregor.

Mr. Anderson, welcome to our committee. It's always a pleasure to have you here.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

I'm very excited.

[The Chair, Liberal, Anthony Housefather]

Mr. Levitt, it's always good to have you, sir.

[Michael Levitt, Liberal, York Centre, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

We have a couple of other replacements who will be showing up soon.

From the Office of the Privacy Commissioner of Canada, we have the commissioner, Daniel Therrien, and Patricia Kosseim, Senior General Counsel and Director General of the Legal Services, Policy, Research and Technology Analysis Branch.

Welcome to both of you.

Ms. Kosseim, you have a very long title. I hope that you are not required to write it out every time you sign something.

[Patricia Kosseim, Senior General Counsel and Director General, Legal Services, Policy, Research and Technology Analysis Branch, Office of the Privacy Commissioner of Canada]

I try to avoid that.

[The Chair, Liberal, Anthony Housefather]

From Statistics Canada, we have Yvan Clermont, Director of the Canadian Centre for Justice Statistics.

Welcome, Mr. Clermont.

[Yvan Clermont, Director, Canadian Centre for Justice Statistics , Statistics Canada]

Good afternoon.

[The Chair, Liberal, Anthony Housefather]

Also from Statistics Canada, we have Samuel Perreault, an analyst in the Canadian Centre for Justice Statistics.

Good afternoon, Mr. Perreault.

[Samuel Perreault, Analyst, Canadian Centre for Justice Statistics, Statistics Canada]

Good afternoon.

[The Chair, Liberal, Anthony Housefather]

We will start today with the Office of the Privacy Commissioner of Canada.

Mr. Therrien, the floor is yours.

[Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada]

Thank you very much, Mr. Chair.

Thank you for the invitation to appear before you today on Bill C-46. I'm accompanied by Madam Kosseim. As you may be aware, we appeared before the public safety and national security committee, SECU, on a similar private member's bill, C-226, a year ago. I would stress from the outset that our office fully understands the severity, societal impact, and clear dangers of impaired driving. For governments and law enforcement, combatting impaired driving is clearly a compelling state objective, given the tragic impact on Canadians each year.

In our testimony before SECU last September on the other bill, we acknowledged the pressing nature of the state objective but also posed three questions related to the necessity and proportionality of the new provisions. Those questions included consideration of how invasive this new power could be, how necessary it is to move away from the suspicion standard, and whether there is any concrete evidence as to how effective the proposed changes might be.

In the interim, since our last testimony and the introduction of this bill, the government published a charter statement and a legislative backgrounder, which attempt to deal with these questions. While we might disagree on some particulars, for instance on the reasonable expectation of privacy of individuals subjected to new mandatory roadside testing, on the whole we find these explanations satisfactory.

For instance, these materials provide information on the limitations of the current system in Canada and the effectiveness of models outside Canada in reducing deaths due to impaired driving. On the whole, we think that the government's answers to our questions on necessity and proportionality, if not perfect, are in most ways adequate.

All that said, however, there are some other substantive privacy issues we would like to raise, including the broadening of purposes for which test results and analyses of bodily samples can be shared and how this sensitive data would be handled.

Clause 15 of the bill, which would add subsection 320.36(2) to the Criminal Code, permits the sharing of the results of any evaluation, physical coordination test or analysis of a bodily substance for the purpose of the administration or enforcement of a federal or provincial act.

Currently, the use and disclosure of this type of information is restricted to specific Criminal Code, Aeronautics Act or Railway Safety Act offences, or to the administration or enforcement of provincial law.

As a consequence, the bill would widen the potential uses and purposes for which such results may be put by authorities.

While road safety is clearly a compelling state objective, we do not see how the numerous other administrative objectives would justify the sharing of test results.

In your study, we recommend that the committee examine which specific laws are contemplated here and consider restricting sharing to the enforcement of statutes with sufficiently compelling state objectives that justify sharing sensitive information originally obtained without grounds.

If you are not convinced, you could limit sharing under the system in the subsection in question only to federal or provincial laws dealing with transportation security.

We would also ask whether testing results are retained on individuals who are not found to be in violation of the regulatory limits.

Unrestricted retention of negative test results or false positives would represent a privacy risk if clear ground rules around their required destruction are not set in advance.

Thank you for the invitation. I look forward to answering your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We now move to Mr. Clermont, from Statistics Canada.

[Yvan Clermont]

Good afternoon.

Let me first thank you, the chairs and the members of the committee, for this invitation to present the most recent statistics on impaired driving in Canada.

Today, I am going to give you an overview of the most significant and most recent indicators, derived from various sources of data on the issue.

First, let me highlight some of the key and most important findings in relation to impaired driving in Canada.

Only a very small proportion of people drive while being impaired, but of those who do most are doing it recurrently. Impaired drivers also more often adopt other at-risk behaviours such as being a passenger of another impaired driver, driving faster and more aggressively, not fastening their seat belt, and using a cellphone without a hands-free device. Police report that statistics show a sharp decline in impaired driving over the last 30 years. Recent declines were more pronounced among categories frequently targeted by campaigns and policies, for example, among young drivers, males, and during the night.

Finally, drug-impaired driving incidents are less likely to be cleared by a charge, they take more than twice the time to be completed in courts than other alcohol-related cases, and they are less likely to result in a guilty finding.

First, I am going to talk about self-reported data from a sample of close to 32,000 Canadians in a sample survey.

Self-reported data on drug-impaired driving are very limited at the moment. That is why I am going to focus here essentially on impairment by alcohol.

The table on slide 3 shows the proportion of drivers who report having driven after consuming two drinks in the preceding hour, at least once in the preceding 12 months.

Overall, a little over 4% of Canadian drivers report having driven after consuming two alcoholic drinks in the hour before getting behind the wheel. That figure rises to 5% when motor boats, ATVs, or other recreational vehicles are included.

As an indication, in 2015—this is not on the table—almost 3% of Alberta drivers, the only place where that kind of data is available, reported that they have driven after consuming drugs and 9% reported doing so after consuming alcohol. In other words, in Alberta, drugs were at the origin of about one-quarter of impaired driving cases self-reported in this survey. That could indicate that current police data significantly underestimate drug-impaired driving, since they represent only 4% of cases recorded by police services.

In slide 4 you can see the number of times impaired drivers reported driving while impaired in the 12 months preceding the survey. A relatively small proportion of drivers reported that they had driven while impaired in the past 12 months, but of those who did, the vast majority did it more than once. On average, impaired drivers reported six occurrences of impaired driving in the previous 12 months. Our court data also show that high proportions of offenders had been previously accused even more so for the most serious offences.

Slide 5 shows the proportion of drivers who report having driven while impaired, broken down by age group. You can see that young adults between 25 and 34 years old are more likely to drive while impaired.

Impaired driving is not a behaviour in isolation. It is often one of a number of at-risk behaviours. Those who drive faster and more aggressively, without seatbelts, or while using a cellphone without a “hands free” function and, above all, those who ride as passengers of an impaired driver, all report driving while impaired in significantly higher numbers than others.

Moreover, other research also shows that the risk of accidents increases when passengers are intoxicated too. So it makes sense to target the other on-road behaviours first; being a passenger with an impaired driver could be an effective way to target impaired driving.

Slide 6 deals with police-reported data. The table traces the impaired driving rate from the mid-1980s. You can clearly see that the rate of impaired driving has declined sharply in that period, as has already been mentioned.

In 2016 about 67,000 impaired-driving incidents were reported by police forces. That translates to a rate of 186 incidents per 100,000 population, a rate that is three times lower than 30 years ago. By contrast, drug-impaired driving is on the rise, although still accounting for a small proportion of all police-reported impaired driving. Even though impaired driving has decreased sharply over the last 30 years, it remains one of the most frequent criminal offences reported by the police. In fact, when taking into consideration crimes that do not come to the attention of the police, impaired driving is likely the most frequent crime. It is one of the leading criminal causes of death.

Slide 7 shows a graph of police-reported impaired driving rates by province and territory. Like crime in general, we note important variations in impaired driving across the country. The lowest rates are recorded in Ontario and Quebec, and the highest in the territories and in Saskatchewan. As for police-reported drug-impaired driving, the variations are relatively similar, with the highest rates being recorded in the Atlantic.

In slide 8 we have a chart showing the impaired-driving rates by age of licensed drivers for 2009 and 2016. As you can see, impaired-driving rates declined amongst all age groups, but the opposite was observed for drug-impaired rates, which increased for all age groups. The greatest declines in overall rates were among the youngest age group. It is worth noting that some provinces recently implemented zero tolerance for young drivers. Coincidentally, these provinces are where the largest declines in youth impaired driving occurred.

Another large decrease was observed at night. Although almost half of all of the impaired-driving incidents still happen between 11 p.m. and 4 a.m., about 70% of the overall decrease in impaired driving in the past six or seven years occurred during that time period. Targeting peak period is known to be one of the most effective ways to combat impaired driving. Of note, though, is the fact that our data show that drug-impaired driving does not have strong peak periods. There are just about as many drug-impaired driving incidents early in the evening as there are during the night, which may cause a potential challenge in addressing the issue of drug-impaired driving.

In slide 9 you can see a chart on the clearance status by type of substance causing impairment. As you can see, alcohol-impaired drivers are more likely to be charged than drug-impaired drivers. However, it's interesting to see that the gap between alcohol and drug impairment has narrowed, especially since the implementation of drug recognition experts in 2008.

We now move to slide 10. I would like to draw your attention to the impaired driving cases brought to court. The cases represent a significant part of the courts' workload. In 2014-2015, actually, the figure was about one case in ten, making it one of the most frequent offences brought to court.

On slide 11, you can see that the median time needed varies enormously with the type of case to be heard. You can see here that the median time for alcohol-impaired driving is 114 days. This is shown by the pale blue line. The dotted red line, showing all other offences, shows a similar level. However, a median time of 245 days, more than double, is required to settle a case involving drug-impaired driving. That is the dark blue line.

On slide 12, you can see that in addition to taking longer to be completed, drug-impaired driving cases are also less likely to end with a guilty verdict. At the national level, 60% of those in drug-related cases are found guilty, while it was 80% for alcohol-related cases.

Our data show that a small number of those driving while impaired do so repeatedly. Impaired driving is associated with other at-risk behaviours on the road, such as being a passenger of another impaired driver on other occasions.

Although a significant decrease in impaired driving can be seen in the police statistics, it is still one of the most frequent offences and the second highest cause of criminal death. The largest declines were recorded among young drivers, an age group often targeted by prevention campaigns. Drug-impaired driving could be more difficult to combat, given that there is no peak period during a day that could be easily targeted. In addition, cases lead to a guilty verdict less frequently, and take more time to be dealt with by the courts.

That concludes my presentation.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your presentation.

We will now move to the time for questions.

We're going to start with Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much, Mr. Chair.

Thank you very much, ladies and gentlemen. We very much appreciate having you here today.

Mr. Clermont, to begin with, how do you get this information? It's amazing to me that you have people who voluntarily start telling you how many times they've been driving drunk over the last year. I thought people would have been inclined—not that it's right—to just deny it, to say they never do this.

Give us a profile. How do you get this information?

[Yvan Clermont]

These are based on data from a household survey, which did not exactly ask the people if they'd been driving drunk or anything. This is not how it's being addressed. The question would be as follows, “In the past 12 months, have you driven a motor vehicle under the influence of an illicit substance such as marijuana or hashish?” That would be for the drug-impaired driving. In the case of alcohol, we would ask them if they had done so after consuming two drinks in the hour preceding their departure.

We cannot conclude necessarily that these were impaired drivers. That would vary a lot depending on their constitution and how they are built and everything, but we were able to make some associations between those behaviours, if they were repeated behaviours, because we were asking if they did it often or just once.

[Rob Nicholson, Conservative, Niagara Falls, ON]

These people are voluntarily giving you this information?

[Yvan Clermont]

They are.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm surprised. It's interesting enough that some of them are keeping track, that they know it was seven times in the last year as opposed to nine. They must have been sober enough to at least keep track and that sort of thing. But again as you say, they're not necessarily impaired under the criminal law, with two drinks in one hour.

[Yvan Clermont]

You're right; they're not necessarily. This is why we hold off from specifying that as the exact question being asked to people.

It's probably the best way. When we compare it to how other countries are doing that and how we should be measuring it, it's probably best to have self-reported behaviours in order to do that properly.

[Rob Nicholson, Conservative, Niagara Falls, ON]

One of the interesting points that you made was that drug-impaired driving has been increasing over the last eight years or so. I guess we're going to see a real boost here with the new legislation that makes marijuana legal. Is it your prediction that it will surpass alcohol in terms of the impaired-driving charges?

[Yvan Clermont]

That's a very good question and this is what we'll be following very closely. It's hard to say if the legislation that is to come will have an impact on the behaviours of Canadians. However, this is certainly something we'll be looking at and be able to report back when it is legalized.