Justice Committee on Sept. 27th, 2017

[Chris Halsor]

Data collection is such an imperative piece. First of all, it establishes baselines. That's a critical component to determining whether legalization has had an impact. I will tell you that Colorado government agencies struggle to answer this question because we didn't have good baselines.

While alcohol-impaired driving still constitutes the vast majority of cases, alcohol-impaired driving numbers have gone down. Drug-impaired driving numbers are on the rise, and that is multiple categories of drugs. It would appear there was some uptick in marijuana-impaired driving cases, including some evidence of a rise in fatalities, but as I alluded to, we had certain limitations within the data that was collected from crashes, where we didn't know if marijuana was truly the proximate cause. This was in part because when we had fatalities, when people were tested, they were only given a urine test, and urine tests really only tell you whether somebody had marijuana in their system within the last 30 days.

It did appear there was an increase, although that number has levelled off a bit. To give you truly accurate numbers as to what the impact has been on traffic safety in our state, I think we're still struggling to answer that question.

[Rob Nicholson, Conservative, Niagara Falls, ON]

In your previous role, you mentioned part of the role you had was advising the government on rural issues. Was there any difference in your experience between impaired driving in the cities or in the rural areas? Were there more in the rural areas or less or about the same? Is it completely consistent, or is there no base to be able to judge that by?

[Chris Halsor]

It's difficult for me to say. Typically, in most of the states that allow a form of recreational or medical marijuana, there's a lot of deference to local governments to decide whether they will permit marijuana businesses such as the retail-facing dispensaries. I think geography and cultural aspects determine how often and how much people are going to use.

However, I will say that the difference between urban and rural law enforcement often has to do with resources. In terms of the availability and accessibility of training, certainly, I understand that in Canada, you have a tremendous amount of territory and not necessarily a large population, especially in the interior part of the country. Getting resources and access to good training for these officers to adapt to this—not just on impaired driving but being able to adapt to the law in and of itself—I think is going to be a challenge that this committee and the Parliament is going to have to consider.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We're going to move on to Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much to our witnesses for their presentations and for answering our questions. It's much appreciated.

Dr. Kelsall, I'll start with you.

Do you accept that Canada has the highest or one of the highest usage rates of marijuana for young people in the world?

[Dr. Diane Kelsall]

Thank you, Mr. Chair. I would like to reply to the member that while I don't know all the international statistics, we do have very high levels here. When you look at past use in the last year, depending on the study, you'll see levels above 30%, in terms of youth.

[Colin Fraser, Liberal, West Nova, NS]

Do you believe that has been going up over the last number of years?

[Dr. Diane Kelsall]

It appears that it's going up.

[Colin Fraser, Liberal, West Nova, NS]

You mentioned tobacco earlier in your testimony, and used that as a comparison. You said that it took a long time with public education in order to see the usage of tobacco start going down, especially, I presume, among young people, or perhaps in the general population.

Along with that, of course, came in stricter regulations regarding its sale, its advertisement, and all manner of things, including a public education campaign.

Wouldn't you agree that the reason the tobacco usage rates have gone down is because of a whole-of-government sort of approach, where you're able to actually do these things in a regulated and restricted regime?

[Dr. Diane Kelsall]

I absolutely agree that a public education campaign is certainly not the sole piece. As I mentioned, it took a multi-faceted, targeted approach at multiple levels of government to be able to do that, but the point I was making is that it did not take six months. It took decades to be able to turn the tide.

[Colin Fraser, Liberal, West Nova, NS]

Would you agree with me that if a product is illegal, then you can't regulate it?

[Dr. Diane Kelsall]

You cannot regulate it. That is correct.

[Colin Fraser, Liberal, West Nova, NS]

In your presentation, I don't believe—and correct me if I'm wrong—that you touched on any specifics in the bill, or made any suggestions with regard to the actual text of the bill. Do you have any suggestions for this impaired driving bill?

[Dr. Diane Kelsall]

The addition that I suggested was that I believe there is not a provision in the bill for a targeted campaign on driving. There is some money. There's a provision in Bill C-45. From what I understand the amount of money that has been set aside is not gigantic. I really believe that Bill C-46 should have a built-in, specific provision for a targeted campaign on driving.

[Colin Fraser, Liberal, West Nova, NS]

Do you think that a bill that is addressing the impaired driving laws in our country should have a framework in place for how we're going to do a public education campaign?

[Dr. Diane Kelsall]

I think it could be part of the bill, certainly from what I'm hearing today.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

Mr. Compton, I'll turn to you if I could. Is there a safe level or a safe amount of cannabis that could be consumed before driving a motor vehicle?

[Richard Compton]

I would answer that with a no. I think the fact that someone's a cannabis user is not a bar to driving, but when someone smokes cannabis, you usually will see impairment for two to three hours, sometimes stretching out to four or five. I think people who want to use marijuana, whether it's for therapeutic purposes or recreational, should understand they should not get behind the wheel for probably six to eight hours after use. With edibles, it's a whole different question because of the mechanics of how that's absorbed into the body and the effects can last for longer periods of time.

No, there's no safe level, just like with alcohol. The evidence is pretty clear that with the first drink, risk goes up with alcohol. The more you drink, the greater the risk. We place the burden on the legislatures, like the House of Commons, to determine how much risk is acceptable. The fact that you set a level, like we have 0.08% in the U.S. or 0.05%...if you want zero risk, you set the BAC level to zero. I think the same thing is going to be true about marijuana.

[Colin Fraser, Liberal, West Nova, NS]

If I can back up a moment, as you probably know, the way this is structured is that an oral fluid sample could be taken to have reasonable suspicion in order to go further with the investigation into whether the person is impaired by cannabis, for example. That oral fluid test could then eventually lead to a blood sample being taken to prove the amount of THC content in the blood.

Do you believe that a two-step process would be a good idea? We heard testimony earlier that relying on the oral fluid test alone would be enough.

[Richard Compton]

I think that the oral fluid screening devices are probably an aid to law enforcement because they give an almost immediate indication, usually within three minutes to five minutes. When pulling a blood sample or taking an oral fluid sample to send to a lab, you can wait weeks, if not months, to get a test result back. In order to make a case, I do believe that a police officer has to make careful observations and I think a judge or jury would like the corroboration that the person had ingested marijuana. The blood or oral fluid is simply indicating that there's evidence of marijuana use, corroborating an officer's observations.

[Colin Fraser, Liberal, West Nova, NS]

Mr. Halsor, thank you very much for your testimony. You say that there was a rise in marijuana-impaired driving charges after legalization in Colorado.

What regime did Colorado put in place when it legalized marijuana, in order to deal with impaired driving ?

[Chris Halsor]

We went down the path of trying to create a per se law. We went three years into our state legislature to try and pass a five-nanogram of delta-9 THC per se law. We did not end up with that. Instead, we ended up with what is called a permissible inference. If somebody is arrested for a DUI case involving marijuana, they are given a blood test, and if that toxicology reveals that they have five nanograms of delta-9 THC per millilitre of blood, and if the case went to trial, in Colorado at least, even with our misdemeanour DUIs, they are jury eligible. The jury would be given an instruction that, at five nanograms or more, you can infer that this person is substantially incapable of safely driving a motor vehicle. That tracks with what would be our DUI statute.

What distinguishes a permissible inference from a per se law is that, if you hit that limit, that's a violation of a per se law. It's not even really proving impairment, whereas, with a permissible inference, the way the instruction works is that it's a nudge to the finder of fact to say yes, they're impaired. However, then the other parts of the instructions say that you can consider other evidence and the defence is allowed to offer up anything that suggests that the person wasn't impaired. It's not the functional equivalent of a per se law.

That was one thing we did.

[Colin Fraser, Liberal, West Nova, NS]

That's my time. Thank you, sir.

[The Chair, Liberal, Anthony Housefather]

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thanks to all the witnesses.

I'd like to continue with Mr. Halsor, if I could. I'd like to first of all ask you about a point you made during your testimony, that if a person dies in a car crash, the autopsy ought to require testing. I think that's what you said, that there ought to be a mandatory test. Is that a function of Colorado law, or is that just a best practice? Is it reduced to a statute, or is it just something that is done?