Justice Committee on Sept. 25th, 2017

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

Thank you to the witnesses.

I want to start out with Ms. Wallage regarding per se limits. I have reviewed the “Report on Drug Per Se Limits” issued by the Canadian Society of Forensic Science in September 2017.

The very first line of the executive summary notes that “a drug per se limit does not imply all drivers below this limit are not impaired and all drivers above this limit are impaired.” There really is a question about the correlation between impairment and THC levels. I found it troubling or concerning, at least, to see what a study that's cited here found when comparing chronic users with occasional users. The 11 individuals who were occasional users didn't register really any THC levels immediately after they started smoking, and they were basically under one nanogram eight hours later. By contrast, of the chronic users, one was at five nanograms before he even began to smoke marijuana, and “3 of the chronic users had THC blood concentrations of 2 ng/mL or greater 8 hours after smoking”. Another study cited found that nine of 21 regular users had five nanograms or more at least 24 hours after they had last used marijuana.

I'd just like you to comment on that because it's a real concern to me that if we're going to establish a per se limit, there has to be, surely, a correlation with impairment. Otherwise, what we have is an arbitrary limit.

[Rachelle Wallage]

Okay, just to put this in context, you're citing the report we wrote, in which we tried our best to flush out all of the issues with respect to cannabis and driving, as well as the other drugs. I will say that cannabis is not a simple drug. There are a variety of considerations with respect to different types of users, different types of use, and effects in the body.

That whole paragraph was about chronic users, so people who routinely administer a cannabis product. Predominately this was about smoking or the inhalation route, because there is obviously another route, which is the edibles, as people do consume it as well, and that comes with a whole different interpretation.

With respect to this, THC, which is the parent ingredient, the primary psychoactive ingredient in cannabis products—and I'll just use the short form, because I'm assuming we're all familiar with the short form—is a lipid-loving drug, which means it goes into fatty tissues. If you are an occasional user, then inhalation will result in a THC concentration rapidly rising and rapidly declining in a blood sample and then it being redistributed to all the fatty tissues, including the brain, and that's where it has its effects.

In a habitual user, so someone who uses on a daily basis or multiple times a day, this THC will then redistribute through the same mechanism. The THC concentration rapidly escalates or rapidly declines in a blood sample and it then goes into the fatty tissues. But in a chronic user, the THC will accumulate in the fatty tissues. In an occasional user, the THC concentration in the blood will decline to an undetectable level, whereas in somebody who repeatedly administers this drug via smoking and then for a period of time, for experimental purposes, stops using the drug, there tends to be residual levels of THC in their bloodstream.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

In some cases amongst chronic users, at least in the case of the studies, there are rather high THC levels 24 hours or eight hours after the fact. I note that your report says that with regard to these per se limits, the detection of THC would be well beyond the period during which they would be expected to experience acute intoxication. Later, it refers to zero to six hours after smoking cannabis as the time period in which there is really an acute concern about impairment. Is that correct?

[Rachelle Wallage]

For smoking, that's correct.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Okay.

A witness who appeared last week raised a number of concerns about per se limits, and it was his evidence that drivers testing below five nanograms per millilitre of THC can be just as impaired as those testing above five nanograms. Would you agree with that observation?

[Rachelle Wallage]

I would agree with the point that a person can be impaired below a concentration of five nanograms per millilitre. They can be impaired at a concentration of one nanogram per millilitre. Directly correlating a concentration to impairment is very difficult. With respect to impairment and THC, there are a number of factors that toxicologists consider. You consider the route of administration and that will tell you something about how quickly it could come on and how long it will last, so the duration of action.

If you have something like smoking, it's very fast to go into the bloodstream and into the brain, and it has its impact and can last up to approximately six hours. It may be less. If a person consumes it, ingests it, then it takes longer for that active component to get into the bloodstream. That active component, THC, is then metabolized into another active compound. Both of those compounds are contributing to the activity, but you don't see a high peak concentration as you would with smoking. The duration then can be longer than six hours with consumption.

On top of the route of administration, we also consider the potency of the products. Obviously, if it's of greater potency or a person is a more effective smoker.... Chronic smokers tend to be very good at getting all of the active ingredient into their bloodstream and therefore into their brain. The main part about whether we can offer an opinion on impairment is the time elapsed since use. If I have a time and a concentration and all kinds of information, I certainly can be more helpful. Unfortunately, I don't work in that world. I work in the world where I have maybe a concentration and maybe some additional information, but that's certainly not ideal for me to offer a fulsome opinion.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I just—

[The Chair, Liberal, Anthony Housefather]

You're at eight and a half minutes.

Don't worry. We'll come back at the end.

Mr. Fraser, go ahead.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

Thank you all very much for being here. I very much enjoyed your presentations.

Professor Watson, I'll start with you. Thanks very much for the presentation you gave. The charts are very helpful. I want to ask you a question. When we are contemplating random breath testing here in Canada, many have talked about the possibility that irrelevant considerations would be taken into account when somebody is pulled over. For example, a minority who may be pulled over for irrelevant considerations more often would then be subject to more random breath testing as a result.

I wonder if you can talk about the Australian experience dealing with racial profiling or other irrelevant considerations, and whether the evidence bears that out with regard to random breath testing.

[Dr. Barry Watson]

In fact, I believe random breath testing is a way to overcome the very problem you talked about. To set the scene, prior to the introduction of RBT in Australia, the police would breath test people using their discretion. This tended to mean that they used to surveil or hang around drinking venues and look for telltale signs of drivers being impaired. Also—and, having studied the direction of random breath testing, I've spoken to police officers who confirm this—there was a tendency to keep an eye out particularly for older vehicles, vehicles driven by younger people, and in many cases vehicles that weren't considered to be driven by more affluent people.

What happened under random breath testing was that the guideline for the police was that they were to pull over all drivers randomly. What that means, particularly in the booze bus operations, is that, as long as capacity can take it, the police actually pull over everyone in the traffic stream, so they aren't showing any discretion at all. They are testing all drivers.

The practice varies a little from state to state. In the state of Victoria, for example, they've been known to shut down all freeways and breath test everyone. In cases where there is very heavy traffic, there will be a selection process occurring, but what happens is that they will select a cohort of vehicles or a group of vehicles coming along, and it's very rare for them to wave a particular vehicle on.

Overall, having observed RBT operations and spoken to police, I think the key essence of it is to breath test people on a random basis without showing any discretion.

[Colin Fraser, Liberal, West Nova, NS]

What about routine traffic stops and the police being able to demand a breath sample in any routine traffic stop without any suspicion or cause? Do you see that as being problematic, if there are issues with racial profiling making it more likely that a racial minority will be pulled over to begin with?

[Dr. Barry Watson]

There is a potential for that, but in fact the advice given in Australia by road safety advocates like me is that everyone who is pulled over by the police and comes in contact with them during a traffic stop should be breath tested, whether that's for speeding or distracted driving of any sort. That practice does vary a little from state to state, and once again, it depends on the workload of the police.

Overall, the key aim is to create the impression of drivers that whenever they come into contact with the police, there is a high likelihood that they will be breath tested, and in doing so, really create that deterring threat. The point I'd really like to stress about random breath testing is that, although it catches drunk drivers, its key goal is to deter drunk drivers. What's more important is the threat of being breath tested, rather than everyone always being breath tested.

[Colin Fraser, Liberal, West Nova, NS]

If people think they're going to get caught, then they're not going to be impaired drivers to begin with.

[Dr. Barry Watson]

Exactly.

That was the problem with the previous program we had, called RID, which was a form of sobriety checkpoint. The drivers always had the possibility that, even though they were pulled over, if they didn't breathe on the policeman or they could act appropriately and the policeman didn't suspect they had been drinking, they might not be breath tested. Now, in practice, I think the police are fairly good at that, but the key aim was to create the impression in the public's mind that when you are pulled over, you are highly likely to be breath tested.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, sir.

Turning to the Canadian Safe Boating Council, thank you for your presentation.

I didn't quite understand what you were asking for that's different in this legislation from what currently exists. Are you saying that right now a vessel being propelled by muscular propulsion is in fact covered and that this legislation wouldn't cover that?

[John Gullick]

Exactly.

This legislation specifically exempts muscular or human-powered vessels, so you're exempting over half of the vessels.

[Colin Fraser, Liberal, West Nova, NS]

Like a canoe or a kayak, or whatever you were talking about.

So right now people are charged with impaired canoeing. That's happening.

[Michael Vollmer]

Yes.

I have some notes from the Ontario Provincial Police. Since 2002, the OPP have investigated 144 fatal accidents involving non-motorized boats, with a loss of 160 lives, and 32.6% of these reports determined that alcohol or impairment was involved. Those charges would have been laid because they had the same definition that the Canada Shipping Act has.

[Colin Fraser, Liberal, West Nova, NS]

Okay.

Do you have any sense of why that is not reflected in the current legislation? Have you been telegraphed any reason for that, or...?

[Michael Vollmer]

Is it one of the three people in the country who haven't been out on a boat? I don't know.

[John Gullick]

One thing we've heard is that there is a perception that with human- or muscular-powered vessels, it's like a bicycle. The only person who gets hurt is the person riding the bicycle.

In the case of muscular- or human-powered vessels, there can be many more people in the vessel. It also affects people around the vessel, first responders, people who are searching for people who get lost or get in trouble, and the families. I mean if you look at the numbers, there is really no difference between the canoe and the powered vessel as it relates to potential outcome.

[Colin Fraser, Liberal, West Nova, NS]

In the example that Mr. Vollmer made with regard to being on the water, obviously if a child is involved, it could be much more dangerous than being on a bicycle.

[John Gullick]

Or another person.... It doesn't matter.

[Michael Vollmer]

Interestingly, the people who responded to this were two OPP officers on highway duty. They found a guy wandering along the side of the road obviously in a confused state, and they discovered that there was a child in the water. They attempted to get into the water to rescue this child. This was April. The water temperature is enough to bring on cold shock and hypothermia very quickly. They risked their lives to try to save the child.