Justice Committee on Sept. 27th, 2017

[D/Commr Kevin Brosseau, Deputy Commissioner, Contract and Aboriginal Policing, Royal Canadian Mounted Police]

Good afternoon.

Thank you for the opportunity to speak to you on the issue of impaired driving, particularly in the context of the legalization and regulation of cannabis in Canada.

We all know the carnage that impaired driving causes on our streets and highways. In 2015, of all impaired driving incidents the police handled approximately 4% involved drug-impaired driving, as Ms. Thompson mentioned. However, road surveys indicate that drug-impaired driving is as prevalent as alcohol-impaired driving. Consequently, Canadian police officers need to have the necessary tools and the training to keep our roadways safe for everyone.

Driving while impaired by cannabis or any other drug, whether prescription or non-prescription, or by alcohol, is currently a criminal offence. To this end, the RCMP has a contingent of over 900 SFST-trained officers and is increasing this training to our officers. In addition, the curriculum for that training is being updated to include enhanced training on drugs that impair. This will better prepare and enable front-line officers to detect individuals who drive while under the influence of drugs, alcohol, or a combination of both.

Canadian police officers can also receive drug recognition expert training, which is accredited, as you likely know, by the International Association of Chiefs of Police and overseen by the RCMP for all police officers in Canada. A drug recognition expert puts a suspected drug-impaired individual through a standardized series of psycho-physical tests and can use clinical indicators to determine if an individual is impaired by drugs. If an individual is impaired by drugs, that DRE can also determine the category of drugs that is causing the impairment. Notably, in February of this year the Supreme Court ruled that the opinion of a DRE is considered expert testimony in court.

There area approximately 650 of these active trained experts across Canada, of which 200 or so are members of the RCMP, and then 450 are from municipal and provincial agencies. It is important to note these numbers change daily based on recertification dates.

SFST and DRE will continue to be the primary enforcement tools used in the investigation of drug-impaired driving.

In the meantime, support for the enforcement of drug-impaired driving laws and the prosecution of offenders is currently provided by the RCMP national forensic laboratory services. Forensic toxicologists analyze bodily fluid samples for the presence and concentration of drugs. They provide written laboratory reports or certificates for use in court, interpret the effects of drugs on the actions of individuals, and provide expert testimony in court.

Given that enforcement is not enough and with a focus on prevention, the RCMP continues to conduct outreach and awareness activities with Canadians, and with youth in particular, to educate and raise awareness of the harms of drug use, the consequences of impaired driving, and the potential negative outcomes on all of our communities. These efforts will need to be clear and consistent for the duration of the cannabis legalization process and beyond.

Everyone has the right to come home safe, and the RCMP is steadfast in our commitment to do all we can to enhance awareness, prevent impaired driving, and equip police officers with the tools and the necessary training. We'll also continue to work with our partners and stakeholders to educate the public about the consequences and dangers of impaired driving whether by alcohol or drugs.

Thank you. I look forward to taking your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Deputy Commissioner.

Now we were very lucky that we were able to accommodate the timing for our witnesses in our third panel who have to get back to Toronto.

I am very pleased to have with us Patrick Leclerc, president and chief executive officer of the Canadian Urban Transit Association.

Welcome, Mr. Leclerc.

[Patrick Leclerc, President and Chief Executive Officer, Canadian Urban Transit Association]

Thank you.

[The Chair, Liberal, Anthony Housefather]

And we're also joined by, from the TTC, Mr. Brian Leck, who is the head of legal and general counsel. Hi, Mr. Leck.

And with him is Ms. Megan MacRae, who is the executive director of human resources. Welcome, Ms. MacRae.

My understanding is the three of you are joining together in a presentation that's going to be started by Mr. Leclerc.

[Patrick Leclerc]

Thank you, Mr. Chair.

Members of the Standing Committee on Justice, let me begin by thanking you for your invitation to appear before you today as part of your study on Bill C-46.

My name is Patrick Leclerc and I am the president and chief executive officer of the Canadian Urban Transit Association (CUTA).

CUTA is the influential voice of the public transit sector across Canada. Our membership includes all transit systems in Canada, private sector companies, government agencies and urban mobility partners.

The safety of our communities is closely linked to the safety of our transit systems. Each year in Canada our members provide over two billion trips, drive over one billion kilometres, and are on the road for more than 53 million hours, all that in mixed traffic.

A few years ago, and you may remember this, CUTA worked hand-in-hand with transit leaders, transit unions, MPs, and senators to successfully and unanimously amend the Criminal Code to make assaulting a transit operator an aggravating factor in the determination of the sentence.

The reason was simple. There are about 2,000 assaults against bus operators across the country each year. The situation is dangerous and unacceptable. While some pointed to the fact that 2,000 assaults over two billion trips represented about 0.000001% assault per transit trip, everyone agreed, including the members of this committee, that assaulting a bus driver represented a serious public safety issue that needed to be addressed. It was a matter of public safety back then, and we're now back in front of you today with exactly the same consideration in mind, public safety.

Transit riders should feel confident that getting on a transit vehicle is safe. In fact, it is much safer than getting in a car. Our transit operators care deeply about their passengers. They have their safety in mind at every turn. They are well-trained, very professional, and they provide excellent service to our communities. There's no doubt, Mr. Chair, that the vast majority of our transit operators would never drive a vehicle while impaired by drugs or alcohol.

Unfortunately, there are cases where drivers or other employees perform their duties while impaired by alcohol or drugs. This information comes from the experience of the U.S. transport networks, where random tests are mandatory, as well as the recent program implemented by the Toronto Transit Commission.

While this is the exception and not the rule, the few cases of alcohol- or drug-impaired driving are a few too many. As I mentioned, it is not just about drivers of vehicles. When passengers take public transit, their safety also depends on the work of mechanics, supervisors, inspectors, engineers and managers, all of whom have a role to play in ensuring the safety of all public transportation operations.

In addition to public safety this issue is also a matter of workplace safety. It's management's responsibility to ensure transit employees are safe at all times. Transit systems involve heavy-duty machinery, safety sensitive duties, and no shortage of ways in which an impaired person could put their fellow workers at risk. While transit operations for the most part sit outside the federal government's purview, the government does have a role to play in providing clear leadership and an unambiguous direction on safety-related issues surrounding the legalization of cannabis, such as recommended by the task force on cannabis legalization and regulation.

In addition to establishing clear mechanisms to allow for random alcohol and drug testing for safety sensitive positions under federal jurisdiction, the government needs to show leadership and work with provinces and territories to ensure the approach to public safety and safety sensitive positions as it relates to the use of cannabis and impairment in the workplace is consistent from coast to coast to coast.

I will now turn to my colleague from the TTC, Megan MacRae.

[Megan MacRae, Executive Director, Human Resources, Toronto Transit Commission]

Good afternoon, and thank you for the invitation to speak to the honourable committee today on the very important issue of road safety, or in our case, workplace safety.

I'm here today because I have managed our fitness for duty program since 2011 and have spearheaded the implementation of our random testing program, which was introduced earlier this year. As well, I have been intricately involved with our ongoing labour arbitration and the various ongoing legal proceedings.

TTC has been working with various employers and employer associations, including CUTA, over the past year to draw attention to workplace safety concerns associated with the legalization of marijuana.

We believe the risk to employees and the public in our industry is currently understated and will only increase. We believe that the federal government has an important leadership role to play in ensuring appropriate mechanisms are in place to protect workplace and public safety in advance of July 2018. We call upon the federal government to lead the provinces by example through the introduction of mandatory workplace random drug and alcohol testing in safety sensitive industries.

Our workplaces, in many cases, are public roadways, and the actions of our employees, both front line and behind the scenes, impact public safety.

TTC has been engaged in lengthy and costly legal disputes for which there is no end in sight. We have not been alone. In our view, the time for legislation is long overdue. TTC introduced random testing on May 8 of this year, and in less than five months has had 16 positive drug tests—over 50% of these were for marijuana—five positive alcohol tests, and two refusals. This is in addition to safety sensitive flags and alcohol violation. These results have surprised us by being higher than even we anticipated.

The Ontario Superior Court of Justice, in denying the Amalgamated Transit Union Local 113's injunction to our random testing program, determined that our program will increase public safety. Justice Marrocco was satisfied, based on our evidence, that the safety of both our employees and the public outweighed any privacy concerns. Much of TTC's evidence went unchallenged by the union. The judge explicitly concluded, based on our expert evidence, that oral fluid testing for cannabis at the TTC cut-off level will detect persons whose cognitive and motor abilities are likely impaired at the time of testing.

Our experts and witnesses offered evidence showing that in other jurisdictions, such as the U.S., the U.K., and Australia, where random testing has been introduced in similar workplaces, the rate of positive tests have significantly decreased. We looked at the Colorado experience and showed the impact to usage and public safety.

TTC uses oral fluid technology for the most part. While the TTC is of the view that this technology is not sufficiently invasive so as to present privacy concerns, we respect this protected right and would submit that even if it were truly invasive, the right to safety for the public is greater than the slight inconvenience random testing could create for those subjected to it.

As I mentioned, TTC uses oral fluid technology, and based on our experts, there is sufficient evidence to support the notion that one can choose drug cut-off levels consistent with time frames related to recent use and likely impairment.

I have a variety of other figures to speak to, but in the interest of time, I will highlight simply that 163 people have declared a substance use disorder since our fitness for duty program was introduced in 2010. All of our post-incident tests have been for drugs, which is noteworthy because we believe it's indicative that the visual means by which one generally has to detect impairment are insufficient. We've had 216 positive results in certification and pre-employment testing. These are people who are looking for work and know they will be drug tested.

With that, I will pass the time on to my colleague, Brian Leck.

[Brian Leck, Head of Legal and General Counsel, Legal Department, Toronto Transit Commission]

Good evening, Mr. Chair and honourable members.

On May 8 of this year, the TTC took the bold step of initiating random alcohol and drug tests for all safety sensitive positions, designated management positions, and executive positions. As a result, as Megan has alluded to, some 21 union members were found to have positive test results or refusals, people who would otherwise be out driving buses, subways, streetcars, in the busy streets of Toronto. Those people were undetected, unverified, unknown. What you don't know, you don't know. Random is the right way to deal with safety sensitive positions, particularly in the public transportation industry.

What TTC did was because it was the right thing to do, but I submit that it was the wrong way to do it. We have been involved in litigation for some six years with no end in sight. We're not through an arbitration process that began in 2011 and will be ongoing with, no doubt, judicial review, appeal to the Court of Appeal, and the Supreme Court of Canada. Maybe 10 years from now we'll get some decision. The problem with that is it's not at all proactive.

In every other western civilization, what it has taken is a horrific tragedy. In England, in London, there was a horrible subway crash that killed five people and injured 540 people as a result of someone being highly impaired by marijuana usage. Shortly following that, the government introduced legislative controls for random testing. Likewise in New York, a horrific accident. Likewise in Australia and in New Zealand. All these western democracies were reacting to situations that cried out for finally implementing random testing.

We're looking to leadership from the federal government to take the step, to set the bars, to set the requirements, to create consistency across the industry for all safety sensitive positions. Otherwise it will be a hodgepodge of different tests, different criteria, different arbitrators, different judges, all at different times coming to different conclusions at absolutely enormous expense to all of these companies, whether they're public sector or private sector. Inevitably, if it goes that way many families, many individuals, will suffer tragic consequences.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your testimony, it's very much appreciated.

We'll now move to questions. Mr. Cooper.

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

Thank you, Mr. Chair.

My first set of questions will be to Ms. Thompson. I want to dig a little bit into the issue of drug recognition experts. You indicated there are currently 600 and that the target is to have 7,000 DREs. By when?

[Kathy Thompson]

With respect to drug recognition experts, there are currently 600. The objective is to augment that by approximately 250, approximately 750 to 800. The reason for that is because there's actually a very high turnover in those positions. In order to constantly be filling those positions and making sure people are accredited, that's the number we feel we could have, trained.

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

I am sorry, I misheard you about the 7,000. Is that right? You never said 7,000, or did you?

[Kathy Thompson]

Not for drug recognition experts.

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

Not for drug recognition experts. The target is 750 to 800, by when?

[Kathy Thompson]

By year five. The five-year funding was announced on September 8, so within five years we will augment that number to approximately 750 to 800.

I think the number you may have been thinking about is the number for what we call SFSTs, standard field sobriety tests. We're so used to acronyms in the federal government. We currently have approximately 3,400 SFSTs, and you heard the number who are in the RCMP, which represents about 15% of front-line officers, and we will grow that number to about 50% by year five.

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

Thank you for that clarification.

How many drug recognition experts will there be as of July 1, 2018? What is the expectation, 600?

[Kathy Thompson]

I'm just going to turn to Ms. Huggins to see if we can get clarification.

[Rachel Huggins, Manager, Policy and Development, Serious and Organized Crime Strategies Division, Community Safety and Countering Crime Branch, Department of Public Safety and Emergency Preparedness]

We're already growing the number of DREs in the country. More are being trained every month, and the expectation is that within the current fiscal year, so by July, we will probably have an additional 100 officers trained.

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

So we'll be closer to 700, potentially.

You spoke about the level of attrition. It's my understanding that since 2013 the level of attrition has been somewhere in the neighbourhood of 50%. Is that correct?

[D/Commr Kevin Brosseau]

I don't know what the cumulative attrition is, Mr. Cooper, but I'd say that it's about 20% per year, for a few reasons. One is the training requirements and transfers within the RCMP. I'm not speaking about the entire program, but I can tell you that my officers have a high attrition rate, which means that the level of training needs to be accelerated, and this is happening.

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

That 800 figure seems to be considerably less than the figure given by some others who have appeared before the committee, some of whom have suggested that we need somewhere in the neighbourhood of 2,400 drug recognition experts.

Mr. Brosseau, I don't know if you might be able to comment on whether you're satisfied that the RCMP, and law enforcement generally, have the tools and resources they need to acquire a sufficient number of drug recognition experts by July 1, 2018.

[D/Commr Kevin Brosseau]

I would say that additional time would permit us to train more officers, and this will always be our goal. I will also say, though, that with respect to the placement of DREs, particularly from my organization, given our geographic scope, we're trying to ensure that there's as much coverage as possible across the country and that these DREs are strategically placed in particular areas. Given the mobility my organization, it's a challenge to make sure that we have them placed where we need them so that the coverage is there.

The other piece, in anticipation of the new legislation, is that front-line police officers will not have to rely solely on DREs. There is a second option, which is to be able to go directly to a blood sample. We're hoping that this will alleviate some of the pressure, which is now quite acute, and which is something other police services have cited in regard to the overall numbers of DREs being trained.

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

Just to get a handle on the training aspect of drug recognition experts, Ms. Thompson, did you indicate that this was being done under the supervision of the RCMP?

[Kathy Thompson]

Yes, it's accredited by the International Association of Chiefs of Police, and the RCMP oversees the program.

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

How long does it take for an officer to go through the program?

[Kathy Thompson]

It takes approximately three weeks, with one week of accreditation.