Justice Committee on Sept. 20th, 2017

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone. It is a pleasure to welcome you to the justice and human rights committee's meeting on Bill C-46, which we finally can refer to as an “impaired driving law”.

I am absolutely delighted to welcome our witnesses today.

We welcome Mario Harel, who is president of the Canadian Association of Chiefs of Police, and the director of the police service of the city of Gatineau.

Good afternoon, Mr. Harel.

Also, I welcome Charles Cox, the co-chair of the traffic committee, chief superintendent, highway safety division, Ontario Provincial Police; Gord Jones, superintendent, traffic committee, in Toronto; Lara Malashenko, member of the traffic committee and legal counsel for the Ottawa Police Services; and from DUID Victim Voices, Ed Wood, president.

We're going to start with the Canadian Association of Chiefs of Police.

[Director Mario Harel, President, Director, Gatineau Police Service, Canadian Association of Chiefs of Police]

Distinguished members of this committee, as president of the Canadian Association of Chiefs of Police, I am pleased to be given the opportunity to meet each of you today. This is my first time as president of the CACP to appear before you, and I am privileged to see so many familiar faces.

You just introduced my colleagues here at the table. I'd like to point out that Chief Superintendent Charles Cox is our chair of the CACP traffic committee, and Superintendent Gord Jones is from the Toronto Police Service. He's our immediate past chair of the same committee. Madam Malashenko is the legal counsel for the Ottawa Police Service and a member of our law amendments committee.

We are here to provide our expertise on this very important issue. The mandate of the CACP is safety and security for all Canadians through innovative police leadership. This mandate is accomplished through the activities and special projects of some 20 committees and through active liaison with various levels of government. Ensuring the safety of our citizens and our communities is central to the mission of our membership, which represents municipal, regional, provincial, and federal police services.

Bill C-46 is a very detailed and technical bill, and as a result, I will address it from a high level on our opening statement. In addition to our appearance here today, we are providing you with a more detailed brief, which outlines our position on the bill.

I would like to make some general comments to provide perspective as to the impact of this bill on policing. Our role from the beginning has been to share our expertise with the government to help mitigate the impact of such legislation on public safety. Extensive discussions within the CACP membership and various committees formed the basis of our advice. We participated in a number of government health consultations and provided a submission to the federal task force. Members of the CACP also were involved in the oral fluid drug screening device pilot project.

We produced two discussion papers entitled “CACP Recommendations of the Task Force on Cannabis Legalization and Regulation” on February 8, 2017 and “Government Introduces Legislation to Legalize Cannabis” on April 28, 2017. Both discussion papers can be found on our website.

The recommendations we are providing here today are not intended to dispute the government's intention of restricting, regulating, and legalizing cannabis use in Canada.

There is no doubt that the primary concern of policing in Canada is impaired driving. This is a significant issue today. It is our belief that it will become an even greater issue with the legalization of cannabis.

In fact, I want to be clear. We certainly commend the government for its commitment to consultation of stakeholders and the public. We commend the efforts of ministers, all parliamentarians, and public servants at Public Safety, Justice, and Health Canada who are dedicated to bringing forward the best legislation possible. All share with us a desire to do this right, knowing that the world is watching.

The government has put forward strong legislation not only focused on impairment by drugs but also addressing ongoing issues related to alcohol impairment.

Steps that have been introduced to reform the entire impaired driving scheme are seen as much needed and very positive. The CACP has called for such changes in the past, specifically in support of modernizing the driving provision of the Criminal Code, supporting mandatory alcohol screening, and eliminating common loophole defences. Tough new impairment driving penalties introduced in this legislation are strongly supported by the CACP.

We also acknowledge funding announced recently to support law enforcement for cannabis and drug-impaired driving. The government has been listening.

The natural question would be why those in policing would have a concern with the July 2018 start date. The problem exists today; what will be different with legalization? What does policing need in order to successfully implement and operationalize legalization?

The question many in policing have is what level of readiness the government, and more importantly, our communities, expect law enforcement to deliver. We can be ready at some level July 2018, but are we delivering on the public safety objectives Canadians would expect of us? We are 10 months away, so allow me to put this into perspective.

We have 65,000 police officers in Canada who require training to understand the new legislation once it is passed into law. Standards for oral fluid drug screening devices are being developed. Devices are yet to be screened against standards approved by the Attorney General of Canada and made available to law enforcement to allow for implementation and training. Provincial governments for the most part are still developing regulatory and delivery schemes, which directly impact law enforcement.

While funding has been announced, details regarding how the funding will be allocated through the provinces and into the municipal police services' hands remain unclear. We need that to meet the training and implementation objectives. We clearly require many more officers trained in standard field sobriety testing and as drug recognition experts. Quite frankly, the capacity currently is not there to deliver the amount of training required.

Although the RCMP has recently conducted pilots in Canada, DRE accreditation currently involves sending officers to the United States at significant cost and based on availability of courses. We asked the government to come forward with a commitment and details to develop Canadian-based training for our officers, including reducing or eliminating the reliance on the practical training portion that is predominantly only available in the United States. We need to increase forensic laboratory capacity to process bodily fluids and sustain our ability to enforce this legislation.

This represents just a snapshot of what confronts law enforcement as we move forward. We remain hopeful that many of these issues will be clarified and/or resolved over the coming months, laying the groundwork needed to support effective and efficient enforcement of these new laws. What really concerns policing overall is that, quite frankly, Canadians have not been getting the message when it comes to impaired driving, whether that be by alcohol or drugs, and it remains a leading criminal cause of death in Canada.

We recognize and commend the government's tougher legislation in this area. However, current perceptions and attitudes toward drug-impaired driving must change, especially among our youth. Greater education in this area should have started long ago. We need to drive home the message that alcohol and/or drugs and driving don't mix.

We are crossing new territory. Like you, we want to see this comprehensive legislation implemented successfully and recognize that doing it right is more important than doing. We all have a responsibility to mitigate the impact on public safety. That is our foremost goal from a policing perspective.

Again, our written submission flags some of the challenges, considerations, and recommendations that we hope will assist in making this bill even stronger. In all, we support the proposed measures, with some amendments. We continue to stress the importance of public education, and the policing community is eager to advance training incentives so that it can effectively support enforcement and public safety goals.

Sincere thanks are extended, Mr. Chair, to all members of this committee for allowing the Canadian Association of Chiefs of Police the opportunity to comment and make suggestions on Bill C-46. We look forward to answering any of your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, and you are a very important organization to hear from, so we're very glad you're here.

Now we will move to Mr. Wood.

Mr. Wood, the floor is yours.

[Ed Wood, President, DUID Victim Voices]

Thank you very much.

Ladies and gentlemen, marijuana's THC does not impair a driver's blood; neither does alcohol, for that matter. Both of these substances impair a driver's brain, making the person unsafe to drive. We only test blood as a surrogate to try to learn what's in the brain. For alcohol, blood is an excellent surrogate. THC is not like alcohol. It's different biologically, chemically, and metabolically. For THC, blood is a terrible surrogate to learn what is in the brain.

Bill C-46 is based in part on the report from the Canadian Society of Forensic Science issued earlier this year. I largely concur with their findings, but I strongly disagree with their THC per se recommendations. I will confine my remarks to only that topic.

The two-tier structure in Bill C-46 perpetuates the myth that blood levels of THC correlate with levels of impairment, and they don't, as specified in the CSFS report itself. Drivers testing below five nanograms per millilitre of THC can be just as impaired as those testing above five nanograms. I submit that impaired drivers who kill or maim innocent victims and then test below five nanograms do not deserve protection from criminal prosecution.

Alcohol is unique among impairing drugs in that there is documented correlation between blood levels and impairment levels that simply does not exist for any other drug and has been shown to not exist at all for THC.

I point your attention to slide 1, which is before you right now. Much has been made of the fact that THC remains in the body for an extended period of time. It does not, however, remain in the blood very long at all. Since THC is fat-soluble, it is quickly removed from the blood as it is absorbed by the brain and other highly perfused fatty tissues in the body. The charts all demonstrate how rapidly THC is cleared from blood in both chronic and occasional users of marijuana.

Dr. Hartman's work, as shown in the two right-hand charts, showed that the peak level of THC declined an average of 73% within just the first 25 minutes after beginning to smoke a joint.

With a per se law, if you are above the limit, you are guilty of a per se violation, even if you can drive safely. Conversely, and this is something often overlooked, if you are below the limit, you are innocent of a per se violation even if you are seriously impaired. This latter point is the real problem with any THC per se quantitative level.

On slide 2 are frequency distribution histograms from four different forensic laboratories showing that the vast majority of cannabinoid-positive drivers arrested on suspicion of driving under the influence of drugs test below five nanograms. The largest of these studies showed that 70%, in more than 10,000 cases, tested below five nanograms. These drivers would not be criminally prosecuted under a five nanogram per se law.

There are two reasons for this phenomenon. First is the previously noted rapid depletion of THC from the blood. Second is the time required between arrest and taking a blood sample for testing.

This third chart superimposes the decline, shown earlier, of THC in blood on the elapsed time between dispatch of an officer to the scene of a crash and the time of taking a driver's blood in Colorado in 2013. What this chart shows you is that in the theoretical worst case, over one-half of cases of a driver smoking marijuana at the time of a crash, that driver would likely test below five nanograms, and that's for heavy users. For occasional users, the median level is just two nanograms. But wait. It gets worse.

In Colorado now, dollar sales of marijuana edibles exceed those of marijuana bud. Slide 4 shows THC levels found in blood on the left and in oral fluid on the right. Of users who consumed up to five times the standard 10 milligram THC dose of edibles, none of the subjects ever reached a five nanogram level in blood and very few even reached the two nanogram level. Drivers impaired by marijuana edibles would not be prosecuted under Bill C-46.

The relationship between blood alcohol level and impairment has been well established, perhaps most convincingly by the Borkenstein relative risk curve, shown on the left. As you have more alcohol in your blood, the chance of having a crash is increasing. By the way, this is only valid if alcohol is the only impairing substance in a driver's blood.

The largest similar study for THC was done by the European Union's DRUID project, which found no difference in propensity for crash risk based upon THC levels. Of greater utility, perhaps, are studies of physical impairment assessments versus blood THC levels.

Declues et al., in the right-hand chart of slide 5, found no relationship in “walk and turn”, “one leg stand”, or “finger to nose” assessments versus blood THC levels ranging between two and 30 nanograms per millilitre in whole blood.

Dr. Logan's study last year evaluated 15 different impairment assessments, none of which could distinguish between drivers testing above and those testing below five nanograms. Dr. Logan concluded, “A quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported.”

I submit further that to do so and to adopt Bill C-46 threatens to not only destroy credibility in the law but also to ensure that the majority of innocent victims of THC-impaired driving in Canada will not see the drivers who committed crimes upon their person brought to justice, and if that's not a crime, it should be.

We know that relying upon roadside impairment assessments alone is problematic. StatsCan figures bear that out. You have now seen that quantitative per se levels for THC also won't work. A combination called tandem per se, however, might be the answer.

Tandem per se requires a sequence of events to prove a driver guilty of driving under the influence of drug per se. Number one is that the driver was arrested by an officer who had probable cause, based upon the driver's demeanour, behaviour, and observable impairment, to believe that the driver was impaired. Number two is proof that the driver had any amount of an impairing substance in the driver's blood, breath, or oral fluid.

You can do better than what you currently have with Bill C-46. I hope you do.

I look forward to your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Wood.

We'll now move to questions. Mr. Nicholson will start.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much, gentlemen, for your input here today. Let me start with Mr. Wood.

You pointed out on a number of occasions that people who did not meet the chemical test, whether the .08 or the number with respect to the residual level of marijuana, won't be charged. I appreciate that it has been a long time since I've been in criminal court, but for example, the individual may show as only .07. Yes, he or she is not guilty of having violated that particular section of the Criminal Code but can be charged under the impaired driving sections of the Criminal Code. Again, it's a question of evidence. If the officer or whoever in charge says that the car was wobbling all over the place, or the individual can't walk straight, that's quite apart from the actual blood levels. That's a separate offence.

You seem to be indicating that this is not the case, that in fact people who are below the levels established for either cannabis or alcohol somehow won't be charged. I can see that they won't be charged under the specific section, but the impaired driving is a separate offence.

What are your thoughts on that?

[Ed Wood]

Let me recall a point, one that was raised, if I may respond to the member. It is possible to prosecute someone for impairment even if you have no laboratory test, but it turns out as a practical matter that if there is a laboratory test and that individual tests below the per se limit, it is very, very rare to find a successful prosecution.

We had a case that occurred just last year in Boulder County, Colorado, of a little eight-year-old girl riding a bicycle and being killed by a driver who was determined by the DRE on the scene to be impaired. The prosecutor said he had enough evidence to convict that person of vehicular homicide due to driving under the influence. The laboratory results came back. The person was below the .08 alcohol level and below five nanograms THC level. The prosecutor said that in spite of that, with the DRE evidence, they had enough to convict. In the end, that person was convicted of careless driving resulting in death, which is a misdemeanour in Colorado, resulting in a 150-day sentence for killing an eight-year-old girl.

That's the kind of thing that occurs.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I know it can occur, but nonetheless, an individual can be convicted of impaired driving even if they don't meet.... I think you said that. It depends on a person's levels. Somebody who never drinks and who then has a couple of drinks that put them at .07 is probably a lot more impaired than somebody who is at .10 but is used to drinking all the time.

That's just one of the indicators, and it's a separate section of the Criminal Code. I'm sure, as you say, that you can come up with examples in which the crown had a hard time prosecuting a case. Nonetheless it's still the law of this country that if you're impaired, you're impaired, quite apart from the other sections of the Criminal Code that specify that a certain level is an indication of impairment. Wouldn't you agree?

[Ed Wood]

In concept I agree. I have gone to prosecutors in the state of Colorado and asked them with respect to alcohol alone to give me examples of cases in which they have had a defendant who tested below .08 yet was convicted of driving under the influence of alcohol. I have not been able to find a single case. I'm sure some exist, but I've not found any.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Okay. I appreciate that. Thank you very much.

Chief Harel, thank you very much for your testimony.

You said you're going to suggest some amendments, that you will be submitting them. You may have already done so, but I don't have a copy yet. Will we be seeing those amendments?

[Director Mario Harel]

Yes, they are already submitted.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You said the capacity is not there now for the changes that are under this law, but are you confident that in fact all the changes necessary by way of training will be in place by July 1, 2018?

[Director Mario Harel]

We've talked about this. We've seen the momentum in training pick up in the last year or so on the DRE side and the sobriety test for our field officers in the reality of today. For sure, from the experience of other jurisdictions that have legalized marijuana, we expect an increase in encounters with people under the influence. That's why we're picking up on training and trying to get our numbers up as quickly as possible. It's very complex and tough training, however, and it's going to take a while.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you. You're confirming what I guess all of us know. There's going to be more impaired driving here in Canada with this particular law.

[Director Mario Harel]

It's already a reality. Our DRE officers are charging people. I think it was about 4% of.... I don't want to mix statistics. I'm always afraid to go into statistics, but 4% of all impaired driving incidents involved drugs in 2009.

That's another matter: statistics are not robust right now. That's one thing we have to work on.

If we look at experience from other jurisdictions, we cannot predict the future, but we expect more encounters with people. That's why the education and sensitization of people, especially youth, is very important in a very short time.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Education for youth should have been started already, but you've expressed disappointment. Is it in the fact that it's not taking place or that it's not taking place enough?

[Director Mario Harel]

We've seen some campaigns. I've personally seen some on the Quebec side, for sure. Because the statistics show that the perception of people under the influence of marijuana while driving is very different from the case with alcohol, we all know that a lot of work needs to be done. We urge that every jurisdiction undertake more campaigns to educate people about driving under the influence. That's why we say that if you take drugs, don't drive.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much. I think you are going to be facing great challenges next year when this comes into place. I wish you all the best on that. I look forward to seeing your amendments.

Thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you to our panellists.

Before I start my questions, I want to recognize somebody from my neck of the woods, Mr. Stephen Biss, who is in the audience today.

Mr. Biss, welcome to Ottawa. Thank you for your interest in this legislation.

Mr. Harel, you talked in your testimony about a pilot project that a number of police forces took part in. Can you share with us the views of the officers who tested these new devices?

[Director Mario Harel]

Yes. Gatineau and Toronto were police departments that were part of the project. Overall, I think the experience was positive. I know that the report reflects that. The objective was to test the equipment in our climate in the winter, and we did that. We encountered a couple of snowstorms, and so on. Overall, it was positive. There were two models, and some recommendations were made. Overall, the officers managed to operate the devices okay, and overall it was positive.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

The report that was published by Public Safety Canada says:

While the devices worked in all weather conditions, there were some temperature-related issues that arose when the devices were used in extreme cold temperatures. Proportionally, tests conducted outside of suggested operating temperatures were more likely to produce drug-positive results.

In addition, there were device malfunctions in 13% of the samplings. Do you have concerns about that at all?

[Director Mario Harel]

That was the objective of the pilot. I don't have all the details about the technical aspects of the devices, but it was the objective of the pilot to try to detect how those devices operate in our climate. Any recommendations needing to be made, we made after the pilot. We're waiting on what Public Safety is doing with those devices to see whether any adjustment has to be made.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

If any of the other police chiefs wants to comment, that's fair.

[Chief Superintendent Charles Cox, Co-Chair, Traffic Committee, Chief Superintendent, Highway Safety Division, Ontario Provincial Police, Canadian Association of Chiefs of Police]

With respect to the devices, there were 53 officers trained. The pilot project went very well. We also piloted the devices in OPP jurisdiction in the province of Ontario.

Numerous recommendations came out of the pilot project. My understanding is that now that they have this report and they have these recommendations, this is something that can be looked at by the drugs and driving committee, which will be developing the standards with respect to these devices so that the manufacturers can go back and make sure they meet those standards. Hopefully, anything that came out of the pilot project will be reviewed by the drugs and driving committee. Then, when the standards are created, we'll have devices that won't have those issues any more.