Justice Committee on Sept. 27th, 2017

[Murray Rankin, NDP, Victoria, BC]

But why would we contemplate regulations that set a limit of two nanograms per millilitre, then, if it's zero tolerance?

[Greg Yost]

The regulation process is one that's used in other countries, including the United Kingdom. The science is rapidly evolving with respect to this. There is a great deal of research going on. We rely on the Drugs and Driving Committee for its advice. It examined five nanograms and two nanograms, the pros and cons of both of those. It picked five nanograms because that's what's in Colorado and picked two nanograms because that's what's in the United Kingdom. There are pros and cons to both of them. The government, based upon that scientific advice and its own views, decided to propose two levels. It made that clear. It'll have to be put in regulations eventually. The five-nanogram level is, according to the DDC, much more likely to be certain of impairment. The two-nanogram level is a public safety consideration.

The reason for regulations is that, frankly, as the science evolves and as the DDC has to opportunity to consider more and more drugs—which we hope it will do in the future—it will be difficult to come back to Parliament every time to amend the Criminal Code.

[Murray Rankin, NDP, Victoria, BC]

I understand.

In the interests of time, I'd like to ask a question of Mr. Leclerc and to my colleagues from the TTC. Mr. Leclerc, you said that transit is safer than driving a car and I couldn't agree with you more, especially if I'm driving the car. I haven't had a car for years because in my community of Victoria we have an amazing bus service. But that's absolutely true. What I'm not clear on is what you are seeking from our committee. We appreciate your testimony, the 10-nanogram standard and so forth, but we have a committee that is studying Bill C-46, which is to deal with impaired driving and the like. I think I heard you ask for a standardization across all safety sensitive positions. Is it your testimony that you want us to amend Bill C-46 to deal with safety sensitive positions? Are you seeking amendments to this bill or do you believe what we have before us meets your needs? I'm not clear.

[Patrick Leclerc]

I was not talking about you, about the driving, I promise.

What we're looking for is twofold, whether it's in Bill C-46 that you're looking at, or through any other means. The first thing is that when it's under federal jurisdiction you have clear standards where you have safety sensitive positions. And we don't define them; we understand the legislators will. That's what I think Ms. MacRae and Mr. Leck, as well, mentioned. In the absence of clear standards or regulations, they had to go with their own and lead a costly and lengthy court battle. So, in terms of that, it's defining it.

The second thing that we're looking for is that we don't see right now the dialogue happening between the federal government and provinces and territories on a common approach to safety sensitive positions. In our case, what we're really concerned with is the public safety elements.

[Brian Leck]

Essentially what TTC is requesting is that the federal government review the whole notion of creating standards particularly for the transportation industry, similar to what they have in the United Kingdom and the United States, so there is a consistent set of per se limits, cut-off levels. Right now they are literally all over the map.

[Murray Rankin, NDP, Victoria, BC]

Oh, yes.

[Brian Leck]

The difference between a roadside test—and the government may have a certain functional approach to that—and the workplace is that it's well established that you need to deal with impairment in the workplace. That's the issue. If you start getting into your analysis and into too low a cut-off, then you're dealing with someone's personal recreational habits, whatever those might be, whether you agree with them or not. That's not our business at TTC. It is our business, though, when you show up at work impaired.

[Murray Rankin, NDP, Victoria, BC]

Right.

[Brian Leck]

Oral fluid is the test that shows that. Urinalysis doesn't and some other tests don't. But oral fluid shows a very high likelihood with marijuana, for example. The cut-off shows that you've smoked within four hours and there's a high concentration. So, we're looking for a set of regulations and legislation at the federal government level for the federal sector employees in safety sensitive positions that will establish those kinds of things as opposed to different industries trying to set their own standards and fight before different arbitrators and different judges—

[Murray Rankin, NDP, Victoria, BC]

The only difficulty, aside from the lack of my time, is that your standard of 10, which I think is very fair, by the way, to employees based on the evidence we've heard, is a long way from what the government is contemplating in this bill, so it's the utility of that. This is not the law that would create a federal-wide, safety sensitive standard.

But I want to go back to testimony we had from the last witness, which was a company called ACS, Alcohol Countermeasure Systems. They provided allegedly scientific evidence, from Drs. Huestis and Cone, where they argued that saliva is as reliable as blood testing and it is of course much easier and less intrusive than blood testing. Therefore, the burden of what they were suggesting to this committee was we don't need blood testing at all, which would probably change a lot of things in the bill.

I'd like the reaction of Public Safety and the Department of Justice to that assertion.

[Greg Yost]

Kathy is looking at me to start, unfortunately.

[Kathy Thompson]

I was going to start. Go ahead.

[Greg Yost]

Unfortunately, I missed that part of his testimony. It was pouring rain out there and I decided to wait for it to break.

What they said is not what I've been hearing from the Drugs and Driving Committee over the last several years, or what you've heard. The equipment is becoming more and more reliable at detecting it at lower and lower thresholds in saliva. I don't think there's any question about that, but the question of how that is connected with the level in your blood and impairment isn't as clear.

There is a particular legal problem, perhaps, that we haven't explored. One of the reasons approved screening devices are acceptable is that evidence isn't used against you in court. If you have presence in your oral fluid, it's sufficient to create the offence. You're requiring the person right there at the side of the road to provide you with proof that they have it in their system. That is self-incriminating. Obviously in Australia they then take another one and send it to a laboratory to be analyzed.

Our understanding of the state of the science is that it is not that good at this stage. We rely on the Drugs and Driving Committee for its advice.

[The Chair, Liberal, Anthony Housefather]

Ms. Thompson.

[Kathy Thompson]

Yes, just to add very quickly to that, we too rely on the DDC, but have also undertaken our own research, which shows the exact same thing about saliva. While it's very useful for law enforcement to have the oral fluid screening device for detection, and it helps them to build reasonable grounds to believe an offence is being committed, it's not sufficient yet for an actual per se limit. We're in contact with manufacturers, we see great progress, and we're convinced that the technology will continue to improve, but it's not there yet.

The other thing I might add is that there's not as much research as there is on the alcohol side. Of course, alcohol has been legal for so many years, and cannabis has been an illicit substance. There isn't as much research, but we are investing heavily in it. We're planning to do some research with Dr. Bruna Brands from the CIHR with respect to impairment and different use, whether it's smoking or eating brownies.

Other countries are doing the same thing. The U.S., for example, has a green lab. We're monitoring all of that very closely.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Khalid.

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

Thank you, Chair. Thank you, ladies and gentlemen, for your testimony today.

I'd like to start with Ms. Thompson. In December of 2016, there was a pilot project that tested devices with six police forces. Ultimately, Public Safety published its final report on how that whole pilot project went.

Can you comment on how it went? Then can you also comment on the 13% malfunction rate that was also found in your report?

[Kathy Thompson]

I'm happy to talk about the pilot project that Public Safety and the RCMP ran with seven different police forces across the country. I'll ask Ms. Huggins to speak specifically about the false positive rates.

As you indicated, the pilot was run across the country in December, in seven jurisdictions, for about 12 weeks. We tested the device to see whether it operated well under different weather and lighting conditions, and so on. We found that officers were very comfortable with the device. The devices perform very well under different weather conditions. This was deliberately run between December and February or March, because of our great Canadian winters. They performed very well.

There were some experiences that will inform the development of standard operating procedures, like some of the saliva samples freezing after eight minutes, but overall the pilot worked very well.

The devices will have to still be accredited according to standards that are being developed right now by the DDC. These were two amongst many that are on the market. It was very encouraging and prompted us to move to include it in the proposed bill.

I'll just ask Ms. Huggins to speak to the false positive rate.

[Rachel Huggins]

I'll speak to both the false positives and the malfunctions. The malfunctions were articulated in the report that we wrote. However, a lot of them dealt with things like the printer not connecting to the Bluetooth, so they weren't really malfunctions with the devices themselves. Overall, they worked very well for the officers.

With regard to the false positive rate, because this was a volunteer pilot project, we assumed—because the officers screened the individuals before they actually volunteered for the pilot—that there were a few false positives. The device recorded the same drug detection in more than one instance in a row. Overall, the individuals who were part of the pilot were screened by the officers and didn't stay after the fact for us to do any further investigation about their consumption of a drug.

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

Thank you for that clarification.

Mr. Brosseau, as a chief who is really taking leadership of our forces on the ground in dealing with impaired driving, you outlined some statistics in your opening statement. There were very big numbers in terms of impaired driving incidents.

As this legislation is rolled out, do you think police services are ready to deal with perhaps an increased rate of charges for impaired driving with regard to the number of trained officers we have on the roads, etc.? Do you think we are ready? If not, what steps do we need to take to be ready for this?

[D/Commr Kevin Brosseau]

Thank you for your question. I'll limit my comments to my organization.

I know that other police chiefs are being quite vocal about that. I will definitely say that additional time would be helpful, as I've mentioned. That would permit us to be able to train more officers, given the amount of pressures that currently exist on police forces to train in a wide spectrum of competencies.

That said, I'll say again that, first, this is already an offence that we are enforcing today. We've stepped up training. We haven't been sitting idly by at all. We have stepped up training on both the SFST side and the DRE side, strategically locating them, and I'm quite certain that other police services are doing that. Also, then, we have a plan to train more before next year and then continuing on. I suppose part of it is that it's unclear as to what will happen when the bill or the law comes into force. We can expect, I suppose, based on other jurisdictions, that there will be increased usage.

The other part that I really want to highlight is the proactivity and positive engagement with communities. I am convinced that we can't enforce our way out of the problem that is impaired driving, whether by alcohol or drugs. The previous commissioner talked about how it would be our goal to make it socially unacceptable, just like lighting up a cigarette in a restaurant. I think that's how our campaign has to work. It has to work in that prevention mode, in that proactive engagement with community groups—as Ms. Thompson mentioned—such as MADD, CAA, licensed establishments, and schools, so that we're actually getting left of bang and reducing the number of people, rather than trying to simply enforce and to catch those who made that bad decision of consuming some substance and then driving.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

The vote is coming up, but while we have Mr. Yost I'd like to ask if anybody has technical questions for Mr. Yost. We're getting to clause-by-clause, and I know that I have a couple of questions, colleagues, if you would indulge me while you think about it.

Mr. Yost, very quick answers, please.

Proposed subsection 320.36(2) on disclosure states:

No person shall use, disclose or allow the disclosure of the results obtained under this Part of any evaluation, physical coordination test or analysis of a bodily substance, except for the purpose of the administration or enforcement of a federal or provincial Act.

The Privacy Commissioner came before us and suggested that it was too expansive to have “a federal or provincial Act”. He suggested that they should be acts related to drugs or alcohol. What are the department's comments on that?

[Greg Yost]

This is actually just modern drafting technique.

If you look at the existing provision dealing with this, you see that it refers to six sections of the Criminal Code, the Aeronautics Act, and the Railway Safety Act federally. There is not a mention of any shipping act or anything like that. The modern practice is to ask what this is to be used for and not to try to tie it around. All of this information is connected with drugs or alcohol, so I would imagine that adding the drugs or alcohol back in isn't a problem whatsoever. Trying to list the legislation would be an impossible task.

[The Chair, Liberal, Anthony Housefather]

If we generalize on drugs or alcohol, that would be within the intent? Okay.

On proposed section 320.31(4), the presumption on the blood alcohol concentration, we had some suggestions that it could lead to an absurdity where, if your blood alcohol concentration was zero and you would just add five milligrams per hour.... Do you or the department have any objection to saying that this would solely apply if the person's BAC is above zero within the context of the clause?