Evidence of meeting #63 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was alcohol.
A recording is available from Parliament.
5:40 p.m.
Liberal
The Chair Liberal Anthony Housefather
We also have with us three witnesses from the Quebec Bar. Please welcome Ana Victoria Aguerre, a lawyer with the Secretariat of the Order and Legal Affairs, and Pascal Lévesque, the President of the Civil Law Committee.
Good afternoon.
5:40 p.m.
Liberal
The Chair Liberal Anthony Housefather
We also have Benoît Gariépy, a member of the Criminal Law Committee. Good afternoon.
5:40 p.m.
Liberal
5:40 p.m.
Ana Victoria Aguerre Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec
Thank you, Mr. Chair.
Mr. Chair, vice-chairs, and members of the committee, good afternoon.
The Quebec Bar thanks you for inviting us today to share our views with you on Bill C-46.
My name is Ana Victoria Aguerre. I am a lawyer and secretary to the Quebec Bar's criminal law committee. Today, I am accompanied by Pascal Lévesque, the president of the criminal law committee, and by Benoît Gariépy, a member of the criminal law committee, but also a lawyer who specializes in impaired-driving cases.
As you know, Bill C-46 introduces a series of major amendments to the Criminal Code, specifically by proposing a new impaired driving offence, new powers for the police in order to test for it, and new rules for the administration and admissibility of evidence in such cases.
At the outset, we must stress that the Quebec Bar supports the lawmakers' intent that led to the introduction of Bill C-46. Impaired driving is a major issue of public safety that clearly must be addressed. Nevertheless, the solutions that Bill C-46 proposes in this respect seem to us to be problematic in their implementation and, in our view, go far beyond what is reasonable in terms of the basic rights of the accused.
Given the amount of time we have been allowed for our presentation, we will move directly to the crux of the matter.
The Quebec Bar is opposed to a number of the proposed amendments in the bill and is concerned that some of those amendments will be challenged in the courts. We are concerned about the potential impact of these amendments, the majority of which seem disproportionate against the background of deterrence and awareness that the bill seeks. The concerns are specifically about the fundamental rights that everyone enjoys to be presumed innocent and to make full answer and defence.
I will now step aside to allow Mr. Lévesque to continue.
5:45 p.m.
President, Criminal Law Committee, Barreau du Québec
Our analysis of Bill C-46 focused on part 2. We identified two themes. I will deal with the first theme and Mr. Gariépy will deal with the second theme.
My theme deals with the reliability and precision of results from the approved screening devices, and with issues related to admissible evidence and defence.
First of all, we understand the lawmakers' intent in clarifying the status of the law in the light of the Supreme Court of Canada's decision in St-Onge Lamoureux. Nevertheless, the implementation of that intent is problematic: it could have the effect of unreasonably limiting the defence on the reliability of the results of the devices and, ultimately, on the right to be presumed innocent.
The bill establishes the premise that, when certain conditions are met, the results of the test of the samples conclusively demonstrate the person's alcohol level at the moment the test was taken. The bill requires prosecutors to disclose only information related to those conditions. For other information, the accused have to apply to the court and demonstrate the likely relevance of the information they wish to obtain.
This mechanism concerns us. First, it reveals a fragmented reading of the Supreme Court's teachings in St-Onge Lamoureux. Of course, information about the maintenance and the operation of the devices at the moment of the tests is relevant and must be disclosed, but there is also information on the maintenance and use of the same devices in the past, which can also raise reasonable doubt as to the reliability of their results.
By placing the burden of demonstrating to a judge the likely relevance of other information on the shoulders of the accused, we risk requiring expert testimony in order to have the evidence communicated, which is a fundamental right to justice recognized in the charter. As the law currently stands, judges have previously required expert testimony to obtain that communication. The bill runs the risk of worsening that trend. The risk is that the result will be two tiers of criminal justice: the accused who can pay for expert testimony, and everyone else. Basically, the results would be so difficult to challenge that there would be a danger of ending up, in practical terms, with a presumption that is impossible to refute.
I will now let Mr. Gariépy talk to you about the second theme.
5:45 p.m.
Member, Criminal Law Committee, Barreau du Québec
The second theme pertains to the modified offence of driving while impaired to any degree, the new mandatory screening power for police, and the new power allowing the police to take samples of bodily substances on the basis of suspicion alone.
According to the Quebec Bar, the modified offence of driving while impaired to any degree is for all practical purposes a disguised zero-tolerance regime. The notion of impairment to any degree is tantamount to saying that, unless the person is sober while driving a motor vehicle, they can easily be accused of driving while impaired. If the person has consumed even a single glass of wine or one beer, a police officer can stop them and lay charges if they have observed what they deem to be less than perfect driving. This criterion is therefore much too broad and, in our opinion, is clearly excessive as regards the stated objectives of public safety and deterrence. It leaves too much room for subjective opinion of what constitutes impaired ability to drive a motor vehicle.
In this regard, I would like to mention two points made by the Court of Appeal of Quebec. First, the court noted, roughly translated, that:
[...] poor judgment on the part of an automobile driver does not necessarily indicate alcohol impaired driving [...]
The court goes on to state, roughly translated, that:
The criminal offence is not driving while impaired—impairment which can be caused by fatigue, stress, a physical or mental disability, etc.—but rather driving while impaired by the consumption of drugs or alcohol.
Through its criminal law committee, the Quebec Bar, which as you may recall is made up of lawyers as well as crown prosecutors, has expressed concern that such a broad and subjective criterion could lead to a criminal record for an individual, with all the attendant negative life consequences.
Still with regard to clause 320.14 of the bill, the Quebec Bar has reservations about this amendment owing to the period of time during which a person may be accused of this offence. The bar notes further that driving while impaired by drugs or alcohol can be evaluated up to two hours after the person has driven. Once again, we question how proportional this new criterion is as regards the presumption of innocence, in particular, since subclause 320.14(5) significantly reverses the burden of proof.
Moreover, in addition to this new zero-tolerance regime, there are provisions for screening and sampling that are just as worrisome for the rights of accused persons. The bill gives police mandatory screening powers in exercising their power to intercept a vehicle. Clearly, the police officer has full discretion to ask any driver to submit to a breath test.
The Quebec Bar is once again very concerned by the extent of the discretionary power afforded police officers under this new regime. Of course, we take it for granted that police officers receive and will receive the necessary training to manage this formidable discretionary power, but the fact remains that there are still risks of profiling, be it racial or demographic, based for instance on the lifestyle or consumption habits of a certain part of the population.
To properly express our concern, we refer to the Supreme Court of Canada decision in Bain, 1992, which says the following.
Unfortunately it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively. The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control.
If this undertaking applies to the crown, in our opinion it applies equally if not more so to police officers in the field.
Finally, in addition to this power, police officers will also be able to require a blood sample if they have reasonable grounds to believe that the person is driving while impaired to any degree owing to the effects of a drug, therefore even if the driver is nearly sober.
Once again, we are worried about the possible consequences of the exercise of such powers, but also about the consequences of how law enforcement views this amendment. Clearly, driving that deviates to the slightest degree from what the police officer deems to be normal driving could be considered an offence and open the door to the exercise of major and very intrusive sampling powers on the part of the police, as well as, ultimately, charges being laid against persons for conduct that is incompatible with the perception of a criminal offence.
Thank you once again for this opportunity to share our thoughts on Bill C-46. We hope they will be useful to you in your considerations.
We are of course available to take your questions.
5:50 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much for your presentation.
We will move now to Mr. Beirness.
The floor is yours, sir.
5:50 p.m.
Senior Policy Advisor, Subject Matter Expert Impaired Driving, Canadian Centre on Substance Use and Addiction
Mr. Chairman and committee members, thank you for the opportunity to address you today.
My name is Doug Beirness. I am a senior research associate and subject matter expert on impaired driving with the Canadian Centre on Substance Use and Addiction, known as CCSA. CCSA was created by Parliament as a non-governmental agency to provide national leadership and evidence-informed analysis and advice to address substance use in Canada. I am also a member of the Canadian Society of Forensic Science's drugs and driving committee, the DDC. The DDC will make a presentation to this committee separately next week.
Today I speak to you from my position with CCSA and my many years of experience in research in the area of impaired driving. Rather than concentrate on statistics, just let me say that over the 35 years I have been doing research in this field, I have witnessed tremendous reductions in the number of Canadians killed each year in motor vehicle crashes involving an impaired driver. Still, a third of traffic fatalities in this country involve alcohol. In addition, as we have developed the tools and the means to investigate appropriately, a great deal has been learned about the dangers associated with the use of drugs by drivers. Today drug use rivals alcohol as a major contributor to serious crashes in this country.
In the time I have today, I would like to address several issues that are mentioned in Bill C-46. I'll start with mandatory alcohol screening.
Forty years ago, Parliament gave police the power to stop vehicles to check drivers for alcohol use. However, the power to demand a breath test was contingent upon the officer having a reasonable suspicion that the driver had consumed alcohol.
Although the threshold for suspicion is not high, it's been demonstrated that police officers vary considerably in their ability to detect alcohol and assign the symptoms of alcohol use. I don't say this to discredit the work of our police officers. I raise it to illustrate the fact that the detection of alcohol can be difficult, especially in a brief checkpoint at the side of the road. If a driver escapes detection, it serves to reinforce the behaviour and increases the likelihood of its reoccurence.
As you heard earlier today, the Australians pioneered the concept of random breath testing, or RBT, as part of a large-scale effort to reduce drinking and driving that included a very intense year-round program of police checkpoints, during which virtually every driver was tested for alcohol. The goal was, and remains, to test every driver in a state at least once a year.
The strategy worked. When used in this fashion, mandatory breath testing increases the rate of detection of impaired drivers and serves to increase the perceived and the actual probability of apprehension, both of which are key factors in general deterrence.
In the past, any suggestion of random or mandatory breath testing was quickly dismissed as a violation of our rights. Perhaps it's time to reconsider that position. Think for a minute of what we go through to simply board an airplane. By comparison, providing a simple breath test at the side of the road is a small sacrifice to help ensure the safety of all road users. The need is great, the benefits are substantial, and the sacrifice is really minimal. The evidence strongly supports providing police officers the opportunity to test drivers for the presence of alcohol at any time, regardless of suspicion.
Oral fluid drug screening is the next topic I'd like to address. Approved alcohol-screening devices, that is, portable Breathalyzers, have been widely used throughout Canada since the 1970s to provide a quick and valid assessment of drivers who have been drinking. Over the past few years, there have been increasing calls for a similar device that could be used at the roadside to quickly and reliably assess drug use by drivers.
Such a device simply does not exist. Oral fluid screening provides a partial solution. A small sample of oral fluid can be collected and screened in a matter of minutes to provide an indication of whether a driver has ingested a potentially impairing substance. The Canadian Society of Forensic Science's drugs and driving committee tested three such devices, and determined that they were able to detect cannabis, cocaine, and methamphetamine with a high degree of accuracy.
Oral fluid screening devices have the potential to be a valuable tool for officers engaged in drug-driving enforcement, but they're not the solution to the problem.
Although oral fluid screening can reliably detect three of the most common substances used by drivers, there are many other substances that are not detected, for example, opioids and benzodiazepines. More important, the devices only provide an indication of drug presence, not a drug concentration nor an indication of impairment.
As is currently the situation for alcohol, the officer would need to have a reasonable suspicion of drug use before requiring a driver to submit to oral fluid drug screening. Establishing suspicion of drug use can be significantly more challenging than it is to detect the presence of alcohol. It requires that officers be trained to recognize the signs and symptoms of various types of drug use.
The current training course for the standardized field sobriety test should be expanded to include training in the common signs and symptoms of drug use as well as the use of oral fluid screening devices. These training programs need to be developed and implemented as soon as possible to help ensure that our police are prepared for the legalization of cannabis.
The implementation of oral fluid screening devices will not eliminate the need for the drug evaluation and classification, or DEC, program. In fact, providing officers with oral fluid screening devices and enhanced skills in the recognition of signs and symptoms of drug use may actually enhance the need for the DEC program.
An important point I would like to convey is that a strong DEC program is an essential component in the enforcement of drug-impaired driving laws. More officers will be needed to ensure that all suspected drug-impaired drivers can be evaluated within a reasonable time following arrest.
Bill C-46 also reaffirms the recent Supreme Court decision on the admissibility of evidence provided by a DRE on impairment by type of drug without the necessity of qualifying the officer as an expert. This strengthens the value of the DEC program and reinforces the requirement to maintain the stringent standards established for the program by the International Association of Chiefs of Police.
We believe the DEC program is an important element in the enforcement of drug-impaired driving laws in Canada. It requires strong national leadership to ensure the fidelity of the program, to coordinate and facilitate training with provincial and municipal police agencies, to share information, to monitor progress, and to ensure that there's ongoing education and training.
In essence, per se limits such as 80 milligrams per decilitre for alcohol are a legal shortcut. In theory, they negate the necessity to prove the driver was impaired. Showing that the driver had an alcohol or drug concentration in excess of the prescribed limit is usually sufficient. Such laws rely on the scientific evidence demonstrating the relationship between the concentration of alcohol or drugs in the blood and the extent of impairment and/or risk of crash involvement.
The value of alcohol per se laws, however, goes beyond the apparent advantages to adjudication. Per se laws have been shown to have a general deterrent effect as well, reducing the likelihood that people will operate a vehicle after consuming too much alcohol. There's no reason to believe that a general deterrent effect would not be evident with drug per se laws as well.
Unfortunately, the research on which to base per se laws for drugs is not as definitive as it is for alcohol. Drug effects can be quite variable. Studies assessing the risk of crash involvement also reveal variable results.
Our current focus is on cannabis. Cannabis is also the substance about which it is most difficult to make definitive statements on the relationship between concentration, impairment, and crash risk.
Whereas breath testing has become the standard for assessing the concentration of alcohol in drivers, blood samples are required to measure the concentration of drugs. Because the concentration of some drugs, particularly cannabis, decreases rapidly, it's essential that blood samples be drawn as close as possible to the time of the offence.
Currently, blood draws require the oversight of a licensed physician in a hospital emergency department, where collecting blood samples from suspected impaired drivers may be given low priority, resulting in substantial delays. Allowing blood samples to be taken by licensed technicians provides the opportunity for police to obtain samples in a timely manner. We support the inclusion of qualified technicians among those who will be able to draw blood for analysis.
Regarding alcohol ignition interlocks, 10 years ago, in a report for Transport Canada and the Canadian Council of Motor Transport Administrators, it was recommended that impaired driving offenders be given the opportunity to participate in an interlock program at the earliest opportunity, in particular, immediately upon conviction. The recommendation was based on evidence that convicted offenders often continued to drive while prohibited, and often under the influence of alcohol. The earliest possible entry into an interlock program would allow offenders the opportunity to drive legally with insurance while providing the public with the assurance that these individuals will be unable to drive after consuming alcohol.
To sum up, over the years we've learned a great deal about the issue of driving while impaired by alcohol. Still we continue to deal with this complex problem. The legalization of cannabis poses additional challenges. Although many of the lessons learned about dealing with drinking and driving can inform our approach to drugs and driving, we must recognize and take account of the fact that the issues involved in drugs and driving differ in many ways from those involving alcohol.
We'll need new strategies and tactics. The public, for one, needs to be informed of the dangers. The police will need new training and tools. While the measures included in Bill C-46 will assist in tackling the problem, they're not a solution but the beginning of a solution. In this context, we'll need to collect the appropriate data to monitor and evaluate the various elements of the legislation to enable evidence-informed decisions regarding the impact on the system for dealing with impaired driving, and ultimately, on road safety. These data would greatly enhance the value of the database and would allow investigations of the role of cannabis and other drugs in all deaths, provided we have the toxicology data available to us.
In closing, we would like to reinforce the statement in the legislation that recognizes that driving is a privilege, not a right, and as such, it's subject to rules, regulations, obligations, and responsibilities. The public expects a safe and effective roadway system, free from the risks imposed by drivers who use impairing substances. Bill C-46 takes the next steps to meet this expectation.
Thank you.
6:05 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much for your testimony.
We'll now go to questions, starting with Mr. Nicholson.
6:05 p.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Thank you to both groups for your testimony.
Mr. Beirness, let me start with you. You said that cannabis goes very quickly out of the body, yet I'm seeing material which says that you can detect marijuana for quite a while after you've consumed it. What you said seems to be a little inconsistent with that, that it goes quickly out of your body. Can you elaborate on that?
6:05 p.m.
Senior Policy Advisor, Subject Matter Expert Impaired Driving, Canadian Centre on Substance Use and Addiction
Yes. The level of cannabis decreases very quickly. I didn't say it got completely eliminated. In some cases, it can be shown to stay within the body for a substantial period of time.
6:05 p.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
You said there's quite a bit of work to be done in terms of preparing for this. The government has indicated that it's coming in, come hell or high water, in nine and a half months or something. Are you confident that everything that's necessary to handle this is going to be in place?
6:05 p.m.
Senior Policy Advisor, Subject Matter Expert Impaired Driving, Canadian Centre on Substance Use and Addiction
It would be nice if it was, but I'm not sure that everybody will be ready. I'm sure it will be a learning process.
6:05 p.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
My next question is for my colleagues from the Barreau du Québec.
Monsieur Gariépy, you said you're concerned about the fact that people who possibly are sober or not impaired are getting convictions. This bill doesn't actually start from ground zero. This is a modification. Has it been your experience that there are people now being convicted of impaired driving who in fact were not impaired? Is that what you're saying?
6:05 p.m.
Member, Criminal Law Committee, Barreau du Québec
It is not difficult for a crown prosecutor to respect the criterion in section 253 of the present Criminal Code that allows a judge to convict someone for impaired driving once the judge is convinced that the person consumed alcohol and notes certain symptoms, which incidentally are not the clearest. According to the Supreme Court's interpretation, this can be a minimal difference that affects a person's driving.
For parliamentarians here, note that there might not be much to distinguish a minimal difference from impairment of any degree, but this difference is huge in practice.
6:05 p.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Has it been your experience that under the present law as it's been interpreted by the courts innocent people are being convicted of impaired driving? Is that your testimony?
6:05 p.m.
Member, Criminal Law Committee, Barreau du Québec
I am not saying that people are being wrongly convicted, even though that is always a risk. In my opinion, however, the amendment proposed in the bill will increase the risk of that happening.
6:05 p.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
One of the things you are concerned about is racial profiling. If there is mandatory roadside testing where everybody gets tested, do you think that would assuage your fears of that?
6:05 p.m.
Member, Criminal Law Committee, Barreau du Québec
I mentioned profiling earlier, which can be either racial or demographic.
In my opinion, giving police officers an ultimate discretionary power to stop anyone at any time can lead to completely abusive situations. For example, when a bar closes, there could be 20 or 30 people leaving the premises at the same time. Who will the police officer choose to stop? They may decide to stop someone because they are dressed a certain way, because their skin is a certain colour, or because they talk a certain way. In my opinion, that can lead to excesses.
6:10 p.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Somebody exiting a bar is not somebody who's necessarily operating a vehicle. If you're operating a vehicle and they stop every vehicle, you're then....
6:10 p.m.
Member, Criminal Law Committee, Barreau du Québec
No. Once a vehicle is stopped by the police, the system does not pose any problem, in the view of the Quebec Bar.
In the opinion of the Quebec Bar, allowing a police officer to stop a vehicle without a valid reason or allowing them to use their discretionary power can lead to abuses.
6:10 p.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Fair enough, and thank you.
I have one more question, Mr. Chairman.
Mr. Beirness, you said there are a number of ways we can detect both alcohol and drugs. In detecting levels of cannabis in somebody's system, can it be detected through their sweat?
6:10 p.m.
Senior Policy Advisor, Subject Matter Expert Impaired Driving, Canadian Centre on Substance Use and Addiction
You can detect presence through sweat, yes. A system is being pilot tested now whereby essentially they use a person's sweat from their fingerprint to detect certain substances.