Justice Committee on Sept. 20th, 2017

[Colin Fraser, Liberal, West Nova, NS]

Okay, thank you.

Mr. Spratt, I'd like to continue with you on the issue of the bolus or intervening drinking defence. I heard your comments on that regarding how rare it is. I think one of the other witnesses said as well that it's used very infrequently. I'm wondering why that would be. Why wouldn't it be used more routinely if the evidence suggested that the person may not have been impaired at the time they were actually driving or if alcohol was consumed after the point when they were driving. The other part I'm wondering about is the fact that maybe these don't apply very often, because perhaps when the police or the crown realize that there is a big problem and that the person had consumed alcohol after and had spoiled the sample or whatever, they don't end up actually being charged.

[Michael Spratt]

Not that last one for sure.

[Colin Fraser, Liberal, West Nova, NS]

All right.

[Michael Spratt]

These people are charged. It's crown policy in Ontario that these are proceeded with in all cases.

I think one of the reasons we don't see it that often, and don't see it successfully that often, is that defence relies largely on the credibility of an accused person who has to explain what they did and why they did it. Being found after an accident throwing back 40 ounces of vodka right before the police come is not a very positive way to start out on the credibility front.

I think the limitations of the availability of that defence are practical ones in that if you're drinking to escape liability after some sort of accident or police intervention, it's usually transparent when that is being done for nefarious purposes.

[Kyla Lee]

I made the point earlier about the officer in British Columbia who was charged and convicted of obstruction for doing just that, but I find in my interviews with my clients it doesn't come up often because it doesn't occur that often.

Most people who go out and drink aren't engaging in bolus drinking behaviour. They're not slamming back 26 ounces of vodka before getting behind the wheel. Rather, people are engaging in social drinking, and those are the types of people who are getting caught under the law. It doesn't come up because it doesn't occur that often. It's very rare I would even hear of it from my clients much less have to run the defence in court.

[Colin Fraser, Liberal, West Nova, NS]

Ms. Lee, if I can just stay with you for a moment, I think you said in your exchange with one of the other members that one of the ways to ensure effective enforcement of impaired driving laws into reduced rates of impaired driving incidents was to ensure or to do a better job making the public aware that if you violate it, you will get caught.

Isn't that what a lot of measures being taken in this bill are aimed to do? Don't you think the measures that are in there to ensure people will more likely be able to get caught be a deterrent for people who would otherwise be impaired drivers?

[Kyla Lee]

The difference is I agree that the measures in the bill will make it more likely that people will get caught and also more likely that people will be convicted, but I disagree that it will have an effect on the minds of people when they are in the moment, because there's a thing called announcement of fact whenever any new law is brought in. People hear about it. It's discussed in the media. It's televised. For the first six months, it looks as if it's working. It's great. There's a huge reduction in the rates of impaired driving. There's a huge reduction in the number of deaths. Then it slowly ticks back up. It doesn't tick up to where it was before, but it slowly starts to tick back up.

We saw that in British Columbia with the immediate roadside prohibition scheme where our lowest period of time in impaired driving in B.C. was in the six-month period when we had no immediate roadside prohibition scheme because there was so much media attention paid to it that people were staying off the road they were so scared of being caught because there was a constant discussion about being caught.

The other thing about the discussion we have that's taking place often is about the morality of impaired driving, the potential consequences that you might injure or kill somebody, and that doesn't work to deter people. People who are drunk are not getting behind the wheel thinking they might injure or kill somebody. They are getting behind the wheel thinking they can make it home. If you create that perception not that you're going to hurt somebody, but if you try to make it home somebody's going to stop you and you're going to end up before a judge, that's what works. It's the fear of getting caught.

[Colin Fraser, Liberal, West Nova, NS]

I agree with that.

Do I have time for one more?

[The Chair, Liberal, Anthony Housefather]

You're also way over, but don't worry. We're going to do a short and snappy round, if you want to get one in, and everybody who wants to ask one can put up their hand so I see.

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Ms. Lee, you have indicated that you have done a huge number of impaired driving cases. You said with respect to the bolus post-driving consumption that you haven't put together any cases. Surely, you have had a number of clients who—I'm surprised. You haven't had any clients who got into an accident, and then when the police came, they needed a drink or two, not a twenty-sixer, you said a twenty-sixer or a forty-ouncer, but they had one or two drinks just to calm their nerves? You haven't heard that defence yet?

[Kyla Lee]

I've had a couple of people try to run it in the immediate roadside prohibition context, but never in criminal court. It has never been something that a client who has been criminally charged with impaired driving has told me they have done and that I've had to run.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's interesting.

Go ahead.

[Sarah Leamon]

I would like to interject. I can indicate that I've had one client in seven years of practice in the criminal context for whom this has been an issue. In the administrative context, there have been quite a few more instances, but it's a different standard.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes. Sometimes the time gap between when the police get there, there is that temptation in a number of cases.

Mr. Spratt, I am going to look forward to getting your memo on this because of your comments in particular with respect to one of the subsections there, 320.31(4), the presumption of alcohol concentration. You said in that case you could have somebody tested two days later who would have no alcohol in their system, but because of the previous sections I hope you have some sort of an analysis in your memo on that. I would be very interested to hear that because it intrigued me when you raised this.

[Michael Spratt]

Yes. I hope I missed something. I hope I'm wrong on it, because it doesn't make much sense, but the combination of proposed section 320.28 eliminating three hours, allowing samples to be taken hours or even a day after on reasonable and probable grounds, that seems clear. Those samples would, by definition, be taken outside the two-hour limit from operation of the vehicle. That seems clear. Then you turn to proposed section 320.31, which seems like a clear roll-up of the levels and I couldn't see any section of the code that says that it doesn't apply or it doesn't apply in ridiculous situations. I didn't see it there. It seems on its face that's the plain reading. It can't be right.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm not quite sure myself how it fits in with the previous sections, but it will be one of the ones which, needless to say, we'll have a very close look at. Again, I'm looking forward to your brief.

[Michael Spratt]

It's the one time I hope I'm proven wrong on it.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes, fair enough.

Thank you very much, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

I can't remember whether it was Ms. Lee or Ms. Leamon who was talking about the right to counsel and then talked about how if an ASD is given, you don't have a right to counsel. All of that, I guess, in the context is okay because in order to get to that stage, you need some suspicion. The question would be whether or not the lack of access to counsel before having to provide something without any suspicion would be a different approach and would be problematic.

You mentioned something about it actually being used as evidence. My understanding of the bill is that that information from the mandatory test or screening would not be permitted to be used as evidence in any further part of the proceeding. Is that accurate and, if not, have I misread that?

[Sarah Leamon]

Yes and no. The fail reading would be used to inform the officer as to whether or not they were going to then move forward to make a subsequent demand for a breath sample, but it's not just that reading that the officer is getting. The other things that the officer is collecting at the roadside, such as their observations of that person, are important. Those are all being collected without access to counsel. When we're putting that into evidence, it is very problematic for me.

In B.C., as my colleague has pointed out, we do have these administrative schemes in place where officers don't require, really, any kind of suspicion to issue an ASD demand where samples are obtained. There's no viable mechanism to dispute the grounds for these samples.

What we're seeing time and time again is that people are providing samples at the roadside in a context where they otherwise shouldn't be and they're not being provided access to counsel. They're getting very harsh penalties as a result.

Again, it is problematic. In my view, it is contrary to our charter rights.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Are there any other questions?

If not, I want to thank this panel. You often don't get accolades or standing ovations for being criminal defence lawyers. Often the positions you express are a little unpopular, but we need people like you in society to protect the rights of Canadians. Thank you very much for being here.

We're going to recess for a short time while we get the next panel up.

[The Chair, Liberal, Anthony Housefather]

We are reconvening with our third and definitely very exciting panel. It is a pleasure to welcome Mr. Marc Paris, executive director of Drug Free Kids Canada. Welcome, Mr. Paris.

From Students Against Drinking and Driving of Alberta, Mr. Arthur Lee, community liaison. Welcome Mr. Lee.

It's a pleasure having both of you here. As we've already discussed, we'll start with your statements. We will start with Mr. Paris.

[Marc Paris, Executive Director, Drug Free Kids Canada]

Mr. Chair, honourable members, we welcome the opportunity to address this panel and to comment on the amendments to the Criminal Code, particularly as they relate to drug-impaired driving. Drug Free Kids Canada is a non-profit organization devoted to educating parents about drugs, raising public awareness issues surrounding drug use, and facilitating open conversations between parent and teen, in order to ensure that all young people will be able to live their lives free of substance abuse.

Since we are not legal or policy experts, nor do we have experience in law enforcement, we have chosen to focus our comments on the critical need to change how society in general and young people in particular perceive the risks involved with high driving, that is, cannabis-impaired driving. Although drug-impaired driving can involve more drugs than cannabis, our comments today mainly relate to Bill C-45, the proposed legalization of cannabis.

DFK’s position on drug-impaired driving is simple. We need to make the laws and ensure that our enforcement is as strict as possible within the Charter of Rights and Freedoms. A strong deterrent to driving while impaired by drugs must be in place, particularly when we’re about to legalize this psychotropic substance.

We have learned many lessons over the years related to alcohol, lessons that we need to consider with cannabis.

The first lesson was that wide distribution and intense marketing and promotion of alcohol created a normalization of this substance. We need to strictly control the sale of cannabis and definitely forbid any form of marketing or promotion, especially to minors.

Second, no matter what laws are in place, if we don’t educate and sensitize the public to the risks inherent with drug-impaired driving, we will continue to see carnage on our roads. Education at an early age needs to begin as soon as possible, before we legalize. People who are currently driving while impaired tend to be less impacted by public education messages. What influences their behaviour is when others, particularly their children, intervene.

There’s a great example of that from 50 years ago, when seat belts were first introduced. Early public safety messages on buckling up for safety were having poor results. Only when the focus was put on keeping kids safe by buckling them up did we see a change in societal behaviour. A positive change happened as a consequence of the child-centred focus of the new messaging. It’s when the kids asked the parents, “Why aren’t you buckling up, Dad or Mom?” that society began to see a shift in attitude and, ultimately, driving behaviour.

Last, the great and consistent work that has been done over the past 30 years by organizations like Mothers Against Drunk Driving and Students Against Drinking and Driving Alberta have contributed significantly to making drinking and driving socially unacceptable. We need to do the same with drugs now, especially cannabis. Impaired is impaired. The message has to be clear most importantly to our youth.

Our national tracking studies have consistently shown that teens don’t see driving under the influence of pot as being as risky as alcohol. This is particularly worrisome since these are young, inexperienced drivers who believe that smoking a joint and grabbing the car keys is okay.

Studies show that 16-year-olds to 34-year-olds represent only 32% of the Canadian population, but 61% of the cannabis attributable fatalities. This group also disproportionately represents 59% of the cannabis attributable injuries, and 68% of the people involved in cannabis attributable property damage-only collisions. This means that we have serious work to do with today’s young drivers and the future generation of drivers.

Another aspect parents need to be concerned about is that kids are getting into the car with a driver who is high. In a recent Ontario study, almost a quarter, 23%, of grade 12 students, admitted to having been a passenger driven by someone who had consumed drugs.

We are here to tell you that public education messaging works. In the past six years of doing national multimedia campaigns, we have seen that more parents are talking to their kids more often about drugs. We are seeing changes not only in attitudes but also in the behaviour of teens.

Drug Free Kids Canada has been creating impaired driving prevention education campaigns on our own for the past four years, but much more work will be required.

I would like to share with you our latest high driving campaign. It’s an innovative campaign using new technology to reach parents and kids. The Call That Comes After has been internationally recognized in Cannes and New York, as well as in Canada. More importantly, it has been viewed or downloaded over 40,000 times by parents and kids from coast to coast. The Call That Comes After was designed to help parents open up the conversation with their kids by using the most common communication tool between parents and kids, the mobile phone.

[Video presentation]

This campaign ran from January to June and will be repeated again next year for 17 weeks. If we don’t take preventative steps right now to educate the public, by July of next year we could be facing an increase in drug impairment on our roads, creating a significant hazard for the public. We must remind the government of its pledge to allocate a portion of the revenues towards prevention and education. To ensure that our youth and the public in general are protected, we need to provide effective education and prevention awareness strategies well before legislation takes effect.

Consistent messaging has worked for safety belts, anti-smoking, and drinking and driving. We can and must do the same for driving while high. This is the only way to make sure that young people and their parents understand that cannabis does not belong behind the wheel under any circumstance. It’s a substance that, like alcohol, causes serious impairment to driving capabilities even though it will soon become legal. Drug-impaired driving is but one aspect to consider when looking at legalizing cannabis, but it is a very critical one.

I would like to thank this committee for allowing us to present our point of view.