Justice Committee on Sept. 27th, 2017

[Greg Yost]

We've referred this to the alcohol test committee. You heard from the chair of the alcohol test committee that this would not happen in the real world—

[The Chair, Liberal, Anthony Housefather]

Have you a reason why we couldn't say—

[Greg Yost]

—but it could.... We are awaiting the response from the alcohol test committee, which I believe will be writing you, but my expectation is that they will say that wouldn't hurt anything because they would have to start from some number.

[The Chair, Liberal, Anthony Housefather]

Perfect.

Proposed subsection 320.12(c):

It is recognized and declared that (c) the analysis of a sample of a person’s breath by means of an approved instrument produces reliable and accurate readings of blood alcohol concentration;

The Canadian Bar Association indicated this would be best left to a trial judge, and there were concerns raised.

Can you explain the intent of why that's there and what presumption are we trying to create in terms of this clause?

[Greg Yost]

It's based actually on a model in the DNA Identification Act where Parliament set out why it does this thing and its confidence in various things.

The point is there have been disclosure wars going on ever since we tried to eliminate the “two-beer” defence, and the requests for information are getting more and more bizarre, if I can put it that way. Thus far, the ATC does thorough evaluations and it's a ministerial order that lists these instruments. We thought it might be appropriate for Parliament to state its confidence as well in approved instruments rather than indirectly through a ministerial order. That's why it's there.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Does anyone else have any technical questions for Mr. Yost? Not hearing any, are there any other quick questions for the panel?

Ladies and gentlemen, thank you so much for coming before us. We greatly appreciate it. You are excused.

Are we recessing to try to get another panel up to start or....?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Why don't we get another panel?

[The Chair, Liberal, Anthony Housefather]

Let me ask the next panel. They're on videoconference. Can we see if we can get them up before the bells start?

Thank you.

[The Chair, Liberal, Anthony Housefather]

You're very kind and have agreed to join us by video conference and I want to thank you both so much.

As you may have been told, I believe there is the possibility that we are going to be called away to vote at some point and we would like to at least get your opening statements in before. Then if you're able to come back for questions, it would be greatly appreciated, but let's at least get your opening statements in.

We are now joined as an individual by Professor Jan Ramaekers, who is joining us from Maastricht in the Netherlands. Welcome, Professor.

And we have Randy Goossen, who is a psychiatrist and is joining us from Winnipeg. Welcome, Dr. Goossen.

Thank you, both, so much for joining us.

I'll ask Professor Ramaekers to start.

[Dr. Jan Ramaekers, Professor, Maastricht University]

Thank you very much for handing the floor over to me, but are there specific questions you would like me to address?

[The Chair, Liberal, Anthony Housefather]

Professor, normally, in Canada, what we do is we have an opening statement from each witness that summarizes their testimony and it goes to a maximum of 8 to 10 minutes. Do you have any opening statement you wanted to make to us about Bill C-46?

[Dr. Jan Ramaekers]

Okay, I can give you some thoughts that I had while reading parts of the bill earlier this week. Is that okay?

[The Chair, Liberal, Anthony Housefather]

Yes. Again, the more summarized the better.

[Dr. Jan Ramaekers]

Okay.

I would like to perhaps focus on two parts of the bill. One aspect is the fact that DUIC, driving under the influence of cannabis, will become punishable. Canada is intending to install some per se limits to distinguish the level of penalties. I've seen the limits of two nanograms and five nanograms as the markers, basically, of where penalties should start.

This is an interesting area. Probably the first point I would like to make is that much of the science underlying the choices for thresholds in Europe, the U.S. and, I suspect, also in Canada is really based on what I would call experimental research. The only type of research that has been able to establish something like a dose- or concentration-effect relationship between THC impairment and the skills related to actual driving performance comes really from what people would call laboratory studies. Participants would be invited to undergo a driving test or perhaps a simulated driving performance, or take part in a number of neurocognitive tests where reaction times would be tested and attention performances and cognitive functions in general measured, all while they were under the influence of a single or an acute dose of cannabis. They either smoked it in the laboratory or used a vaporizer or other means of administration. These performances would then be compared with the performances of the same individuals but under placebo conditions—when they really did not smoke any cannabis at all.

This is a wonderful set-up. It allows you to also take blood samples at the time of actual impairment. Typically THC, as I'm sure you've all seen, has a very profound pharmacokinetic profile, which indicates that if people smoke, they reach peak levels of THC in the blood very rapidly, perhaps within five minutes. Depending on how much people actually smoke, it could go up to, say, 100 nanograms per millilitre. After five minutes, the curve would go down, also very rapidly—

[The Chair, Liberal, Anthony Housefather]

I'm so sorry, Professor, but can I interrupt you for a second? Our bells are going.

Do we have unanimous consent to continue and to try to get these statements finished before we go?

[Some hon. members]

Agreed.

[The Chair, Liberal, Anthony Housefather]

Please continue, sir.

[Dr. Jan Ramaekers]

The curve would also go down very rapidly, and within 60 minutes. Within one hour, the levels of THC could be below 10 nanograms, or even five nanograms.

This is all perfectly monitorable in a laboratory setting. It means that we have been able to link certain levels of impairment to certain levels of THC in blood, as well as in oral fluid. This works fine. All of the results that come from these studies will indicate two nanograms, for example, which is really the lower limit above which impairment levels become apparent.

If we want to transfer this knowledge to real life and practice, the levels that people like me are measuring in the laboratory are not necessarily identical to the levels that a policeman, for example, would observe, or a forensic laboratory when analyzing the blood samples. The main reason is that the blood samples after an actual crash are usually taken two hours, three hours, or even four hours after the accident occurred.

This is the big dilemma that we are facing right now. The levels that we measure are representative of the THC concentration at the time that the blood sample was taken, but not necessarily at the time of the actual crash. This is a bridge that we need to cross somehow. It is important to keep in mind that with the majority of people who will be involved in a crash for which a blood sample will be taken two hours, three hours, or even later, after the crash, the majority of these samples will show very low THC limits. They may be well below one nanogram, or below two nanograms. That does not necessarily mean that all of these drivers were negative or under the THC threshold at the time of the crash.

[The Chair, Liberal, Anthony Housefather]

Thank you.

[Dr. Jan Ramaekers]

This is one important point that I would like to make.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Professor.

Due to the vote, I'm going to have you hold there for the moment.

We're going to go to our other witness, Dr. Goossen.

Dr. Goossen, if you could hold to eight minutes, that would be great, because then we have to leave for the vote.

[Dr. Randy Goossen, Psychiatrist, As an Individual]

Right. I think I have already handed in a sheet of information so I'll jump right ahead.

I thank you, honourable Chair, for the privilege of speaking to you today.

I would like to point out a few things. As a psychiatrist, I've seen the devastating effects of substances on people's lives. As stated in my paper here, alcohol robs, and it's clear it really does impact people's lives in a way that wants to steal away all that is valuable to us. As well, sometimes there is a difficult component in walking that fine line between recognizing the illness and then having to manage the fallout that occurs when people's behaviours are not safe and they are drinking and driving. It does play a confrontational role sometimes, so much so that I've actually been taken to the college about reporting people. At one point I even had a death threat in regard to cannabis use.

My last point is that it's my hope that the committee remembers the ravages of addictive disorders as well and that intervention is imperative. I would ask that the honourable chair of the committee be reminded of the illness of addiction and recognize the importance for not only prevention and managing road safety, but also the promotion of recovery as it pertains to mental health, substance abuse, and treatment of both.

I have about four sections of the bill that I want to quickly go over. I'll spell them out clearly as I go through them.

Bill C-46 allows the testing for alcohol during any legal roadside stop. I believe special consideration needs to be made in reviewing whether police are given too much freedom to randomly stop any vehicle at will. Although I agree that there are liberties in this regard that should be explored and expanded upon, the parameters of stopping a vehicle randomly for roadside checks is no small matter and needs to be well defined, with the ramifications carefully reviewed.

I have some thoughts and recommendations in regard to Bill C-46 if it's passed.

First, I think the federal government should work with provincial governments to include a signature, where drivers who have passed their driver's test sign that they are aware they will be subject to random testing. It's not giving consent; it's simply stating you're fully aware that random testing comes with the privilege of being able to drive a vehicle. This will enhance their own and the public's safety. This would create a change of attitude to a more receptive attitude to the proposed change of roadside testing.

Second, although obvious, it needs to be stated that the privacy of individuals will be significantly impacted by random testing. I believe our police require further training to detect whether a driver is under the influence. To make the point, albeit quite extreme, I'm using the idea here that an animal control officer shouldn't need to stop every dog owner to see if they're walking a pit bull.

Third, given recent evidence of profiling of individuals within our country, careful consideration in giving police sweeping powers to stop and test individuals needs to be weighed against the potential that the bill may give licence to the intentional or the unintentional targeting of certain populations within our society.

The document “Legislative Background: reforms to the Transportation Provisions of the Criminal Code (Bill C-46)” points out some interesting facts. I think I've given you those on my printout. Although there has been a 65% reduction over 30 years of driving incidents, at the same time Canada is lagging in terms of safety. Bearing this in mind, if we are looking to make the most significant impact possible when it comes to road safety, is there a reason that the blood alcohol level is not lowered from 80 to 50? This would be in keeping with the gains that other countries have benefited from after making similar changes to their laws in lowering their blood alcohol thresholds.

If the bill should be passed, I would recommend that the testing proposed for drugs and alcohol should be equally allowed at the same time of random testing.

I would use the proposed subsection 253(3). As stated, there are three new offences for operation of conveyance while impaired by cannabis and other drugs. The bill criminalizes operation of a vehicle, depending on the driver's concentration of THC in the blood.

If two nanograms of THC is a punishable offence in proposed paragraph 253(3)(b) when using cannabis alone, would it not be most appropriate to keep the drug level the same for proposed paragraph 253(3)(c), which spells out the offence in which cannabis is combined with alcohol? Instead of 2.5 nanograms, keep it at two nanograms, especially when, in combination with alcohol, the impairment may be greater.

Although the testing for the presence—

[The Chair, Liberal, Anthony Housefather]

Dr. Goossen, you only have two minutes left before we have to go for the vote. Could you try to summarize three and four in two minutes? We have it in front of us.

[Dr. Randy Goossen]

Sure. All I'm saying is that testing using swabs in the mouth could be invasive and possibly traumatizing to people who have PTSD.

With the resources that are present and possibly gained from this intervention of random testing, it would be most helpful if those monies were spent towards treatment options and assisting those who require recovery from use of substances.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you, both, so much. Again, we are really so apologetic about these votes, especially to you, Professor, who are six hours later than us. If you are available for questions when we get back, we would very much appreciate it. If not, I totally understand. I will leave you to deal with the clerk on that. We should be back in about 45 minutes.

Thank you very much, gentlemen.

The meeting is recessed.