Justice Committee on Sept. 25th, 2017

[Dr. Daryl Mayers]

I can feel the burning eyes on my back of my drugs-and-driving chairperson, who is in the audience, so I will decline to answer anything on that. I will certainly answer anything about per se limits with alcohol.

[Murray Rankin, NDP, Victoria, BC]

Fine. In your report, you listed several appendices of recommended standards. I wasn't clear whether you were recommending that changes are required to those standards as a consequence of Bill C-46, or are they just there for our education?

[Dr. Daryl Mayers]

They're for information purposes only. I've referred to them and to save the committee time looking them up I thought I'd just supply them up front.

[Murray Rankin, NDP, Victoria, BC]

Chief Bates, you were quite compelling in saying that police in your jurisdiction are not prepared and may be barely ready in July. Yet you were happy with the funding announcement the federal government made.

I'm not really clear. Do you have suggestions for amendments to the legislation? Remember, sir, we're here to talk about the bill before us. Do you have any suggested changes for that legislation?

[Chief John Bates]

No. The one thing in the legislation that caught my eye was simply.... It's two things. I think the legislation addresses or speaks to or contemplates standard field sobriety testing, and maybe it and the combination of oral fluid testing as moving to being able to make the blood demand. This is somewhat different from a continuum, so I'm not really clear on what the continuum is in this.

[Murray Rankin, NDP, Victoria, BC]

Perhaps we need greater clarification.

I want to go back, if I may, to Mr. Mayers. I thought your written presentation was great. I just had a question again about whether a recommendation is suggested here.

You talked about the famous disclosure wars after the 2008 amendments and talked about the law in some provinces having been settled, in a way. But you said, “Many of us have had our files subject to full disclosure but our fear is that the scope of the request is likely to include materials that are not relevant to the analysis. The subsequent litigation to clarify the situation will be extremely costly.”

Are there specific statutory changes you're looking for here in the bill?

[Dr. Daryl Mayers]

I'm speaking with my laboratory hat on now. Just as we tried at the alcohol test committee to clarify what is necessary to determine that an approved instrument is in proper working order, I think the bill could benefit from the same sort of analysis—I'm now adding work onto my committee, probably—as far as the laboratory is concerned. Just as it is inappropriate and unnecessary to look at historical data for the approved instrument, it serves no purpose to ask for my previous 30-alcohol-analyses run when I can provide the quality controls of the run that had the subject's test in it.

[Murray Rankin, NDP, Victoria, BC]

What about putting those reports online, as some of the witnesses have suggested, the routine maintenance reports, and so forth?

[Dr. Daryl Mayers]

I wouldn't presume to speak about that, because that is dependent on the laboratory. The alcohol test committee is not fixed in one laboratory system. We make recommendations at a very high level, and each laboratory system—the RCMP, the Quebec lab, and the Centre of Forensic Sciences—would determine whether they wanted to follow that route.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Khalid.

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

Thank you, Chair. I'd like to split some of my time with Mr. Blair, if that's okay. I just have one question, for Mr. Bates.

You indicated that the number of charges for impaired driving would increase once the cannabis legislation comes forward. Mr. Murray identified that overall, impaired driving charges would decrease or have decreased, based on the chart that is up on our screen.

Do you think that over a period of time in the long term this legislation would have a deterrent effect, that in the long term we would see impaired driving charges decrease and have safer roads in the future, once the police have the training and the process is well implemented?

[Chief John Bates]

There are a few things, There's a difference between charges and instances of impaired driving. I think we may see an uptick of instances of impaired driving, but unless at the end of the day we see this legislation as having a deterrent effect, what is the value in it?

Absolutely I support this legislation and as I indicated in my opening remarks, I commended the draft legislation because I think it is going to have a very positive effect on impaired driving in the future, whether it be caused by drug or alcohol or a combination of the two.

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

Thank you.

The rest is for Mr. Blair.

[Bill Blair, Liberal, Scarborough Southwest, ON]

Thank you very much.

I'll begin by thanking all the witnesses for appearing before us today. I offer my voice of commendation to MADD Canada for your compelling advocacy on this issue over far too many years, but we are very grateful for all your hard work. I also thank the drugs and driving committee for the sage advice they provide to the Government of Canada, which gives us confidence as we go forward, and Chief Bates.

Chief, I just want to clarify something. You express a bit of concern about the roadside screening tool. I just want to remind you that, in 2014, the Canadian Association of Chiefs of Police, by unanimous resolution, urged the Government of Canada to improve the safety of Canada's roadways by approving a drug screening tool to enhance investigation and prosecution of drug-impaired driving. They stated at the time, three years ago, that they believed advances in technology made these tools readily available for roadside detection and they also acknowledged that they were used effectively in some other jurisdictions.

Given the urgency the CACP conveyed, I'd like your sense of how important you believe it is that we make these tools available to law enforcement to keep our roadways safe.

[Chief John Bates]

Any tool we have in the box is going to make us more efficient and effective. Again, part of the concern that my colleagues at the CACP probably expressed with regard to the oral fluid testing, and one that I have, is actually defining what the investigative continuum will be and how the oral fluid testing is going to relate.

As it stands right now, I certainly stand to be corrected, but it is my belief that at the end of the day what we are looking at is, before we get to getting blood from people, we really have to have a drug recognition expert officer giving us the solid grounds for that. That might change, and I think the legislation contemplates a change, but that's where we are right now.

[Bill Blair, Liberal, Scarborough Southwest, ON]

Chief Bates, in 2008, when the government of the day passed Bill C-2 in the second session of the 39th Parliament, it introduced a legislative amendment that allowed for the testimony of drug recognition experts and gave the authority for the standardized field sobriety testing. At that time, or actually about two months after that was passed and enacted, the Canadian Association of Chiefs of Police indicated that they needed to train 27,000 officers in standardized field sobriety testing and some 2,600 officers as drug recognition experts.

The CACP, in their resolution, said they wanted to ensure there was adequate funding for that training to take place. The government of the day authorized $2 million for that training to take place, and my understanding from your testimony and from earlier testimony from the CACP is that we still do not have, at this point in time, adequate numbers of drug recognition or standardized field sobriety officers trained.

With the introduction of the government's allocation of $161 million for that training to take place now, do you believe we are in a better position to produce the desirable outcome of having adequate people trained to keep our roadways safe?

[Chief John Bates]

We will be in a better position particularly with regard to standard field sobriety testing.

The drug recognition experts continue to be problematic. Sourcing and getting people trained in that particular specialty continues to be a problem here in Canada.

[Bill Blair, Liberal, Scarborough Southwest, ON]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Are there any questions for members of the panel? If not, I have one short question.

I also thank Mothers Against Drunk Driving for its advocacy and work over many years.

Last week we had another advocacy group, Families for Justice, who appeared before us and talked about the lack of minimum mandatory sentences being added to the legislation. What is MADD's position on minimum mandatory sentences?

[Patricia Hynes-Coates]

As a mom, as a stepmom, as a victim, I can't support it. There's no evidence to support that this will actually make a difference. We know once we bury our children or bury a loved one, it is too late. We need to focus on deterring it before it actually happens.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I really appreciate the testimony of all the witnesses. It was very helpful.

I'm going to ask the people from the next panel to please move forward. We'll recess briefly as we change panels.

[The Chair, Liberal, Anthony Housefather]

It is a pleasure to be joined by our second panel of the day.

We welcome, from the John Howard Society of Canada, Ms. Catherine Latimer, who is the executive director. We also welcome from Arrive Alive Drive Sober, Ms. Anne Leonard, who is the president, and Mr. Michael Stewart, the program director. We have also, as an individual, Professor Louis Francescutti, who is from the school of public health at the University of Alberta.

We are going to start with Ms. Latimer.

The floor is yours.

[Catherine Latimer, Executive Director, John Howard Society of Canada]

Thank you very much for the opportunity to share with you the perception of the John Howard Society on Bill C-46. We don't bring any depth of scientific expertise, but we are an organization that's fully committed to effective, just, and humane responses to the causes and consequences of crime. We have John Howard offices throughout the country in more than 60 communities, and we're all extremely interested in community safety.

I think it is very timely to review the adequacy of the impaired driving provisions to address marijuana-impaired drivers in advance of the government's promised legalization of marijuana in July 2018.

I think this is a very timely exercise, but not only does Bill C-46 propose Criminal Code amendments in relation to drug-impaired driving. It repeals and replaces code provisions dealing with conveyances and toughens the provisions dealing with alcohol-impaired driving. It thus becomes a very far-reaching set of proposals in a highly litigated area, which will result in many legal challenges and delays in the courts.

Really, we just have three or four observations that we'd like to make about the bill.

The first is that there is a strong argument to focus on the immediate drug-impaired driving challenge with this particular bill. As I'm sure you've heard from others, it might be wise not to proceed with part 2 amendments and really focus on the drug-impaired elements.

We say this for two reasons. One is, and we heard it a little bit from the previous panel, that we've heard from police and provinces that being prepared for the July 2018 legalization of marijuana will be a challenge for them. Keeping the enforcement regime as streamlined and targeted as possible, then, would seem to assist in meeting the time frames associated with the marijuana legalization.

Secondly, we have heard from the courts and others that congestion and delays in the judicial process are leading to charges being dismissed, given the timelines set out by the Supreme Court of Canada in R. vs. Jordan. Many people feel that this is really one of the critical problems facing the justice system today.

The meaning of all new reforms is often tested before the courts, and charter compliance for some of the changes will take up further trial time. I think the brief from the Canadian Bar Association on Bill C-46 sets out a number of elements that raise charter concerns and will certainly take up a lot of time in our courts. Those reforms have unintended consequences of exacerbating serious delays, leading to a failure to hold people to account for serious crimes.

I think it's very important, therefore, to think about the breadth of this bill and what it would mean in terms of other important issues that the courts are facing.

The other issue we would like to raise is to question blood drug levels as an accurate measure of impairment. For us as an evidence-based organization it is important to look at the effectiveness of the proposed test for assessing impairment. While it simplifies enforcement to have a level of drugs in the blood that indicates impairment, the science may not support such a simple test. Relegating the level that's appropriate to regulations may avoid the immediate challenge, but embeds the presumption in legislation that a drug-blood level test of marijuana impairment is possible and desirable.

What we're hearing from experts suggests that those acclimatized to higher doses of marijuana may be less impaired than those with lower doses who are not regular users of marijuana. You could thus have the unfortunate effect that the level of marijuana in the blood does not equate to the level of impairment. Reliance on a blood-drug measurement as an indicator of impairment could have really unjust results and lead to convictions of those who are not impaired. Rather than focusing on the level of drug in the blood, a better test of impairment should perhaps be considered.

The standard field sobriety test could be used, which would indicate impairment, and this would avoid the problems of an intrusive procedure to obtain blood, which raises some charter issues in and of itself. Such a test would be available without the need for legislative amendments.

I also think that in this age of higher technology it might well be possible to have a different type of test for impairment that looks at the speed of reflexes and the variety of things you would worry about to which marijuana consumers, in terms of their impairment, might be subject. If you got a good program for a computer or something, you could also have some quantifiable results, which I think puts the mind of law enforcement a little more at ease. That's the second issue that we would raise for consideration.

The third is the mandatory minimum penalties. The John Howard Society opposes mandatory minimum penalties, believing that judicial discretion is needed to promote fit sentences that are proportionate to the seriousness of the offence and the degree of responsibility of the offender. We are disappointed to see that mandatory minimum penalties are included in this bill and would recommend that they be dropped.

In conclusion, while we share an interest in ensuring that our streets and communities are safe from drug-impaired drivers, this bill may not achieve our shared goals. It risks an inaccurate test for assessing impairment based on drug-blood levels that would have unjust results. It risks clogging the already overburdened courts with trials and charter challenges to the changes, and many of these are in part 2 of the bill. It risks disproportionate sentences by maintaining mandatory minimum penalties.

We would urge the committee to sever part 2 from the bill and deal with that when we've addressed the delays in the court and the important challenges that are there. We would urge the committee to adopt a more accurate tool for assessing actual impairment by marijuana that would be better than a faulty blood-drug level test, and we would urge you to drop the mandatory minimum penalties or to allow judges to impose something other than a preferred mandatory minimum penalty if needed for a proportionate and fair sentence.

That's the position of the John Howard Society.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Latimer, for your testimony.

We will now move to Mr. Stewart and Ms. Leonard.

[Michael Stewart, Program Director, Arrive Alive DRIVE SOBER]

Good afternoon, Mr. Chair and members of the committee. Thank you for inviting Arrive Alive Drive Sober to provide our comments on Bill C-46. My name is Michael Stewart, and I am the program director with Arrive Alive. I am joined here today by the president of our board of directors, Ms. Anne Leonard.

For almost 30 years, our charity has provided leadership and programs to eliminate impaired driving, such as choose your ride and operation lookout. We enable people and communities to share resources and information intended to prevent injuries and save lives on our roads. We are recognized as a leader in the fight against impaired driving. In a recent government survey, our slogan and messaging was recognized by four out of five Ontarians, making it the most recognized campaign.

We have 85 members and stakeholders comprised of dedicated professionals and volunteers. We frequently partner with community groups, police services, public health units, schools, businesses, and government entities. Each year, we distribute for free over $100,000 in printed materials across Canada and receive over $12 million in donated television and radio airtime. In March of this year, one of our countermeasure campaigns, our wrecked car coasters received national and international media coverage, with interviews from coast to coast and as far away as Australia. Since the inception of our organization, impaired driving fatalities in Ontario have declined by almost 75%, demonstrating that comprehensive legislation and enforcement requires a third partner—effective public awareness—to save lives on our roads.

Arrive Alive commends the work of the federal government and its commitment to creating new and stronger laws to combat impaired driving. Introducing three new offences for drivers having specified levels of drugs in their system, making changes to the “over 80” offence, as well as increased penalties are improvements that will help us all arrive alive.

Drug-impaired driving has been included in our messaging for over a decade, but it has recently become of greater concern for Canadians due to the pending legalization of cannabis. In a recent nationwide survey conducted by State Farm, 80% of respondent’s voiced concern about people driving under the influence of marijuana, and 83% felt that there is not enough information about the risks that come with driving while high.

Bill C-46 is an important step forward, but it's critical that it be accompanied by a comprehensive plan of education and public awareness. We have heard a common misconception from both youth and adults that driving while high on cannabis is not only safe, but makes them better drivers. This dangerous myth underscores the critical need to ensure that all drivers know that driving while impaired by drugs is just as dangerous as driving while impaired by alcohol. The Canadian Centre on Substance Use and Addiction reports that in 2011, 21% of high school students who were surveyed in Canada said that they had driven at least once within an hour of using drugs, and 50% had been a passenger in a vehicle where the driver had used drugs. This data, in combination with these dangerous myths, creates a road safety hazard in and of itself that must be addressed not only by enforcement but by fulsome education.

According to Statistics Canada, police reported that drug impaired driving incidents have doubled since 2009. As well, our colleagues in states where cannabis has been legalized, such as Colorado and Washington state, have seen marked increases in drug-impaired driving. We have no reason to believe that this experience will not be replicated in Canada, but education and awareness are key to reducing the numbers of people who combine drug use and driving. We have seen sustained and consistent reductions in alcohol-impaired driving incidents. It clearly appears that the population of drivers who combine drugs and driving is distinct or different from the population that is well aware of the dangers of drinking in combination with driving.

Health Canada has stated that the government is committed to investing in a robust education campaign to inform youth of the risks and harms of cannabis use. We urge the members of this committee to accelerate the government’s pace and economic support when it comes to public awareness efforts. It is crucial to the safety of Canadians to be educated not only about the dangers of driving in combination with drugs, but also about the new consequences and blood drug concentration levels set out in Bill C-46. An absence of awareness and education will limit the impact and deterrent effect these increased penalties are intended to have. Given the brief time between now and July 1st, 2018, we encourage you to explore strategic opportunities for partnership on education campaigns.

Arrive Alive has been at the forefront in raising awareness about the dangers of driving while impaired by drugs. Our drug-impaired driving efforts to date include The Sober Truth About Driving High, a video PSA filmed in partnership with the CACP and the RCMP in 2012; our award-winning iDRIVE educational video that was shared, in partnership with Transport Canada, with every high school in Canada in 2011; a radio PSA entitled Potchecks in 2015; and our ongoing Eggs on Weed campaign that began in 2014.

We are going to continue to do our part, but we will need help, especially with the legalization of cannabis and Bill C-46.

Training officers and ensuring that they have the necessary tools in place to detect and remove impaired drivers from the road has been a key concern of our membership for many years. We know that training these officers to detect impairment and supplying them with devices takes time and money. While the federal government has announced $161 million to be divided up amongst the provinces, our police partners have warned us that there is neither enough time nor funding to have sufficient officers and approved screening devices ready for legalization. We encourage the government to continue to work with police services to determine what amount is needed to fulfill their training and research requirements. As the bill provides necessary tools to help law enforcement in this fight, it is paramount to ensure that they can be fully utilized across Canada.

While Bill C-46 is an important step in the right direction, it is unfortunate that the bill itself perpetuates a myth or misunderstanding amongst the public that accidents are the result of drug- or alcohol-impaired driving. Referring to drug- or alcohol-impaired driving that causes bodily harm or death as an “accident” implies that the criminal conduct and consequence happened for no apparent reason when, in reality, it was a person’s decision to drive impaired. We ask that the committee consider changing the terminology to “collision” to recognize this fact.

In conclusion, Arrive Alive Drive Sober supports the government’s efforts to create stronger legislation. It is with the help of tough legislation that we have continued to see alcohol-impaired driving incidents and fatalities decrease in Canada. However, effective public education and awareness was also instrumental in reducing those numbers. To combat drug-impaired driving like we have with alcohol, the government must provide ample funding and resources. Additionally, with the legalization of cannabis fast approaching, the government must look to strategic partnerships to create public awareness initiatives, both to educate Canadians about driving high, as well as to educate them on the new consequences outlined in Bill C-46. We would be happy to bring forward our track record in this area to assist you in this endeavour.

Thank you for your time and for the invitation to appear.