Justice Committee on Sept. 19th, 2017

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's good to know that.

Thank you very much, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Nicholson. I'm sure you're always giving your blood, sweat, and tears to everything.

[Voices]

Oh, oh!

[The Chair, Liberal, Anthony Housefather]

Mr. Boissonnault now has the floor.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Chair.

Thanks also to everyone who has testified today.

To begin, I have some questions for Mr. Lévesque and Mr. Gariépy, three procedural questions and one constitutional one. Since I have six minutes, I will begin right away.

Mr. Gariépy, in your opinion, could mandatory breath tests reduce the number of traffic accidents and the number of deaths caused by impaired drivers?

[Benoît Gariépy]

That is hard for me to say because I have not necessarily read the same studies as you have.

Let me paraphrase one the witnesses. As he said, for a police officer to be able to require a person to submit to screening, they must at least have reasonable grounds for suspicion. In practice, it is easy for a police officer to come up with those grounds. The threshold is already quite low and, if it is lowered even further, that would open the door to situations that could become abusive, such as searches that are in violation of section 8 of the charter.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Yesterday, we asked the eminent Professor Hogg the same question. We asked him whether he considered the proposed amendments to the law constitutional. In his opinion, the proposed amendments would make the law very effective in cities. He noted, however, that it is very important for police officers working in certain settings, such as in rural areas or in the evening, to have some flexibility.

Unless I am mistaken, you are opposed to giving police officers that kind of flexibility.

[Benoît Gariépy]

Yes and no. Let me explain.

We at the Quebec Bar are not opposed to virtue. We are not opposed to reducing the scourge of impaired driving. We are simply saying that the measures taken by the legislator must respect the individual rights set out in the Constitution. I do not intend to contradict Professor Hogg's opinion, but the Quebec Bar is nonetheless worried about this flexibility.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

We appreciate that.

Your colleagues may also answer the following question.

The police already have powers, which some people consider intrusive, allowing them to question a driver about their alcohol consumption or stick their head in a driver's car and use a flashlight to see if there is any alcohol inside.

In your opinion, are these powers more or less intrusive than what is proposed in Bill C-46?

[Pascal Lévesque]

We are talking about powers given to police officers in the bill and we are wondering whether the police will use them systematically. Now, it is as though we were warning about police powers. The bar would be less concerned about this, except that it does not appear in the bill and we do not know what the regulations will contain. We are raising a red flag here: giving very broad powers to the police and believing they will use them correctly and systematically assumes many things and leaves everything in their hands.

We are all parents and all want to do the right thing. We want to solve the problem of impaired driving, but we must not throw out the baby with the bathwater, as the saying goes.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

There are also aunts and uncles. I am Uncle Randy. My nephews and my niece are now 16, 14 and 9 years old. The one who is turning 16 in a few days will get his driver's licence shortly thereafter. Uncle Randy has already had this conversation with him, as his parents have. I want to protect my nephew and other young people.

Let us now turn to the constitutional aspect. We asked Professor Hogg some questions when he was here yesterday. In his opinion, clauses 1, 8, 9, and 10 of the bill are consistent with the Constitution and the Canadian Charter of Rights and Freedoms. For your part, you raised questions about part 2.

If passed, will these proposed changes be problematic with regard to the Constitution?

[Benoît Gariépy]

Perhaps I can answer that question.

I do not think the Quebec Bar is here today to examine the constitutionality of the bill. Trial judges and later on the justices of the Supreme Court of Canada will certainly have the opportunity to do that.

The eminent Professor Hogg gave his opinion yesterday. Once again, who am I to contradict what a constitutional expert told this committee? I am not saying that the entire bill is completely unconstitutional, but I think some of its clauses might be considered excessive in their scope.

You will remember Bill C-2 which, once it was passed, became the subject of constitutional challenges for four and a half years. Bill C-46 is Bill C-2 to the power of 22 and will also be the subject of challenges. They will not necessarily come from the Quebec Bar, but I know criminal lawyers who are aware of Bill C-46 and who are already sharpening their tools. If the bill is passed in its current form, there will be constitutional challenges.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Do your colleagues wish to make any comments?

Is my time up, Mr. Chair?

[The Chair, Liberal, Anthony Housefather]

Yes, your seven minutes are up. Perhaps we can return to this at the end of the meeting.

Mr. Stetski, you have the floor.

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

Thanks for being here today. I'll start with you, Mr. Beirness.

Two nanograms of THC per millilitre of blood equals impairment. At least, I think that's part of the proposal. What evidence can you share with us concerning THC levels and the difference in rates of impairment in habitual users of cannabis versus, say, first-time or occasional users?

[Dr. Douglas Beirness]

There are indeed some differences you can identify in terms of the level of impairment you see in habitual and novice users. It really depends on the individual. The one thing we've learned in doing studies is that it is very difficult to set a threshold at which impairment occurs in most people and does not occur in other people.

In fact, if you look at the data, you'll see that the best point of discrimination is zero. People who have no cannabis in their system perform better than people who have levels of even one nanogram in their system. Also, you cannot discriminate in terms of people who have different levels of cannabis in their systems. That's been done a couple of times now with real people who have consumed cannabis ad lib, on their own, that is, in the real world. Two nanograms can be a level of impairment in a lot of people. There's no question about that.

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

I have a question for the Barreau du Québec.

You've identified a number of concerns, including presumption of innocence, reliability of measurement instruments, sampling, including blood sampling, and abuse of powers. Is the association putting forward a proposal on what you think will help keep Canadians safe with the approval of Bill C-45 and recreational use of marijuana?

[Pascal Lévesque]

I see that a part has been done. With regard to the communication of information, it says that if that information is provided, the results of devices are reliable. Very well. That is a step in the right direction in that this requires the prosecutor to provide those documents to the accused person.

We have a different interpretation, however, from that of our departmental colleagues as to the Supreme Court of Canada decision in R. v. St-Onge Lamoureux. For our part, we think more documents should be provided. The results from the device and the documents pertaining to its use at the time of testing are of course important. We would also have added the documents pertaining to the past performance of the device. In preparing for this appearance, I read that the deputy minister did not consider this relevant. I respect his opinion, but the fact remains that many legal experts will disagree and in fact consider it relevant, since the Supreme Court of Canada found in R. v. St-Onge Lamoureux that a reasonable doubt about the maintenance of a device can be raised when the test is conducted, but also before the test.

Rather than closing the door and focusing exclusively on the list, we suggest that it be expanded and that the burden of proof not be placed on the accused if one wishes to obtain that list. The communication of evidence is a basic principle recognized in the charter. The prosecutor has a duty to provide it to the accused.

I understand that a good many prosecutors consider it tedious and rather complicated. However, people also said that getting the evidence was complicated prior to the Supreme Court decision in R. v. Stinchcombe, in 1991. It might be complicated, but we are bound by the law. That is not rooted in the charter but in common law. It took decades to refine this.

To answer your question quickly, I would say that, to protect Canadians, the Quebec Bar is suggesting that the list be expanded and that accused persons not be made responsible for asking for information about the devices.

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

You're suggesting that there is a different way to help keep Canadians safe, other than what's being proposed.

[Pascal Lévesque]

Yes, sir.

The list must be expanded and greater latitude must be given as to the documents and information about breath-testing instruments and approved screening devices.

[Benoît Gariépy]

I would like to add something if I may.

The Quebec Bar intervened in R. v. St-Onge Lamoureux in 2012. At trial court, it presented expert evidence to show that there were 10 possible errors or manipulation errors related to the internal operation of the machine. I am not familiar with all the technical details of the machine's operation, but I remember very well that the Supreme Court found in its decision that there were nine possible errors and that it was very much inclined to state that the documents must be disclosed.

We could discuss this in another place, but under the Canadian system it is preferable to acquit nine guilty persons than to convict one innocent person. Assuming that the machine is accurate and reliable and reducing the volume of information to which the accused is entitled increases the possibility of one day convicting an innocent person.

[Ana Victoria Aguerre]

I would like to add something.

The provisions that we are discussing are applied after an act has been committed. It is a question of evidence, the reliability of the evidence, and the accuracy of the results. Does this approach really protect Canadian citizens in a direct way? We do of course need measures to criminalize certain behaviour. The Quebec Bar, on the other hand, is seeking to emphasize all aspects of prevention, education, and awareness. It is true that certain things have to be done after the offence is committed, but the damage has already been done in such cases. A strong emphasis must be placed on everything that happens before the offence occurs.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Fraser, you have the floor.

[Colin Fraser, Liberal, West Nova, NS]

Thanks very much to the witnesses for being here today.

Mr. Beirness, we've already discussed the per se limits. In putting a number on what a limit would be, it does, as best we can in law, set a clear demarcation point at which the person is impaired or not, or I guess it takes the impairment out of it and actually says scientifically we can show that they've committed an offence because they're over that limit.

I'd like to hear your thoughts on how you see this comparing to the per se limits in alcohol. When those per se limits first came in, was there the same sort of uncertainty about how that would actually be enforced and what that would mean, and whether people would know what .08 would mean? How would you compare that to the per se limits in this proposed legislation?

[Dr. Douglas Beirness]

There are many parts to that question.

Way back when the 80 limit was introduced, there was very clear evidence that was very consistent across studies that when you looked at experimental studies that looked at impairment, there was very little doubt that people who were over a limit of 80 were impaired. You could demonstrate it on virtually any task you wanted to.

The other piece of that is the epidemiological literature which showed that at the point of 80, the risk of crash involvement increased exponentially. It was very clear, and that's been demonstrated repeatedly over the years. There is no question about the alcohol limit. We can play with the actual number a little bit, but there's no question about the evidence that supports it.

When it comes to other drugs, in particular, cannabis, it's a little more difficult. We can do studies where we give people cannabis and watch their performance, but the first thing we have to recognize is that the impairment due to cannabis doesn't look like the impairment due to alcohol. It can be very, very different. In particular, cannabis has a lot of cognitive impairments that are very difficult to see. In that context what we're looking at are things like decision-making, risk taking, executive functioning, memory, concentration. People who use cannabis will often say they concentrate better when they use cannabis, and maybe they think they do, but they're concentrating on one thing. Driving is a multi-modal task that requires you to concentrate on numerous different things at the same time. You need to pay attention, and they're unable to do that very well. They do not show the same kind of impairment as alcohol-impaired people do. At some point, you will see the kind of physical impairments, like the loss of balance and the inability to touch one's nose and fine motor discrimination, things like that, but we have to recognize that they're very different.

The other problem we have is that the epidemiological literature is a bit mixed when it comes to at what point cannabis increases the risk of crash involvement. In fact, we really don't have any information on that at all. What we have is a number of studies that look at the difference between non-cannabis-using drivers and cannabis-using drivers, so it's a positive or negative thing. Most of those studies, most but not all, show that there's increased risk associated with cannabis use while driving.

The situations are very different. There's a lot of work to do to help refine that scientific evidence over the next several years.