Justice Committee on Oct. 4th, 2017

[Peter Julian, NDP, New Westminster—Burnaby, BC]

I'll refer to the clerk of the committee because, as I'm a substitute for today's meeting, I have not attended the other committee hearings. I don't know if that came out. I'll go to the analysts and....

We have figures from Toronto that I've cited. Were there figures around indigenous Canadians?

[Lyne Casavant, Committee Researcher]

I don't believe numbers were put forward about the indigenous people in particular, but there certainly were more general comments about a lot of people being affected by racial profiling, including indigenous people.

[The Chair, Liberal, Anthony Housefather]

All right. That's appreciated.

Questions should be directed to the chair, and then I would recognize Mr. Julian, but that was okay. I don't mind that Mr. Julian answered the question as best he could, not having been at most of the meetings.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

I'll make similar comments that I made to the previous amendment that was proposed. I take the point well. I read the email from Mr. MacGregor carefully, and I respect entirely the point that's being made here. I've thought about this carefully. The intent of this bill is to get at the significant problem that we have with impaired driving in Canada—the highest rate of impaired driving of all major countries—which is causing significant problems on our roads as far as public safety. It's a really big issue.

We heard significant testimony that the best way to deal with that problem is to make people feel they're going to get caught if they are impaired drivers. That is the object of this bill. It would severely limit the impact of that deterrence if it were limited to roadside checks. I take the point well. The language used in this bill does, obviously, highlight the fact that any unlawful stop for any irrelevant considerations cannot be acceptable. I'll be proposing an amendment later, in the preamble of the bill, to address this issue as best as can be done.

Overall, when we're talking about the charter, the Supreme Court in many decisions dealing with impaired driving laws has given latitude to Parliament to enact laws that will reduce the harm of impaired driving in this country, and often will indicate that even though there are breaches, it's saved by section 1 of the charter. I'm not in any way minimizing the point that you or Mr. MacGregor has made, but overall, in balancing all these things, we have to do a better job in insuring this doesn't happen. Overall, the intent of the bill would be severely limited by the impact of this amendment, and therefore I cannot support it.

[The Chair, Liberal, Anthony Housefather]

Are there any further comments, colleagues?

Mr. Julian, do you have any closing words that you want to say before we move to a vote?

[Peter Julian, NDP, New Westminster—Burnaby, BC]

The concerns that have been raised in testimony before this committee, including by Michael Spratt, who indicated he believes that the bill is unconstitutional, are a matter of real concern. Despite the fact that we all support the intent of the bill, if the bill is unconstitutional, it means that our effectiveness as a committee in passing this bill as legislation is eliminated. We will not have a bill that does what the government wants and what we all want to see. We have a responsibility to do our due diligence. When there is testimony that says that, indeed, it could be considered unconstitutional, it's something that we should take under careful consideration.

I will come back to the Criminal Lawyers' Association, because Ms. Khalid indicated that she didn't think it would do what I am suggesting the amendment would be able to do. The Criminal Lawyers' Association supports this amendment. They believe that it will eliminate the most egregious parts of this bill. That's why you have, from outside experts, support for the amendment to be adopted by the committee.

That's all I can say. I put that case forward and hope that members of this committee will do their due diligence and make the appropriate amendment. It simply would not be effective to change the preamble. We have to change the legislation if we want to make sure that the bill can stand that test of the charter.

[The Chair, Liberal, Anthony Housefather]

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you for your discretion in allowing me to speak. I just want to say that, having read NDP-3, I agree with Mr. Julian that it's a better construction and a very good amendment, and if I were a member of the committee.... I do, as a non-member of the committee, recommend that you consider NDP-3. It's better than my effort in PV-2.

[The Chair, Liberal, Anthony Housefather]

Now we'll move to a vote on NDP-3.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Mr. Chair, can I ask for a recorded vote on this?

(Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])

[The Chair, Liberal, Anthony Housefather]

CPC-13 was defeated with CPC-4 because we bundled them together, so we will now move to Green Party-3.

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

This is again the concern of taking away the previous state of the law that we would know that someone had been driving within the previous three hours. This now uses the full force of criminal law by virtue of deeming provisions alone because the section of the act I'm trying to amend is that, if a police officer has reasonable grounds to believe the person has operated a conveyance while the person's ability to operate it was impaired, as opposed to the three-hour standard with regard to reasonable grounds....

I would urge the committee to vote for this to ensure that we haven't created an unreasonable burden on the accused without the provision that three hours prior to the arrest is when we're presuming that they've been drinking, essentially, or other forms of intoxicants.

[The Chair, Liberal, Anthony Housefather]

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm somewhat sympathetic to this, Mr. Chair, and I wonder if even the Department of Justice would wonder how this might work. Would it be possible that a person, let's just say, was impaired and crashed into a tree somewhere, and knew that all they had to do was just be outside of three hours and they would be exempt from the provisions? That would be one of things I'd worry about. On the other hand, the idea that you could come a day or so later and ask somebody to start taking tests....

[The Chair, Liberal, Anthony Housefather]

Let's ask the department what the effect of this would be.

Mr. Yost.

[Greg Yost]

We have various time limits. For the mandatory screening, they must have the approved screening device with them. Use of the approved screening device on suspicion must be within three hours. However, for the breath test to try to establish an “over 80” offence, there is no time limit as there currently is now. There are cases, particularly people who flee the scene of an accident, where the police do not find them until three hours later but still have good reason to believe they were impaired and have alcohol in their system.

Accordingly, this bill would propose to eliminate the artificial three hours. Currently, if they arrive there three hours and ten minutes later, they're stuck. Under this legislation, they would do it. As you know, there is a formula available in here for calculating BAC etc., so it all fits together, if I can put it that way.

[The Chair, Liberal, Anthony Housefather]

Any further comments, colleagues?

I'm not hearing any. Ms. May, do you want to close?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I have no additional comments, thank you, Mr. Chair.

(Amendment negatived on division [See Minutes of Proceedings])

[The Chair, Liberal, Anthony Housefather]

We will move to CPC-14.

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Colleagues, you may remember that we heard testimony here that they're getting more sophisticated in being able to analyze what exactly a person has taken or drunk.

One of the suggestions made to us was that there's been progress in the area of just being able to take sweat from somebody and analyze that. I wanted to make sure that the legislation leaves open that possibility, because it's less invasive than taking a blood sample. If the technology is being developed so that they can take it just from your sweat, that would be much more acceptable overall. I wanted to make sure that was included in there. Again, it's consistent with the testimony that you remember we heard.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

I know there's another one later that will be interesting to compare to this one, but my concern is this one is including specifically sweat but no other bodily substances. We'd be including that, but not the whole gamut of bodily substances like it does in a later one.

The drugs and driving committee basically said that, in relation to drug-impaired driving, they don't recommend sweat for use in analysis, and my understanding was that it doesn't have the ability to necessarily detect the current state of somebody's impairment. Right now, the scientific data doesn't seem to support the ability to use sweat for that purpose, so I'd be concerned that if inserted here, it would not have the scientific backing to make it appropriate for addition. I'll certainly keep an open mind on the later one, which includes sweat in a different way.

[The Chair, Liberal, Anthony Housefather]

If I may, Mr. Nicholson, my recollection was that sweat was analogous to urine in the sense that—as the scientists who appeared before us said—stuff could stay in your system for 30 days. It wouldn't be used to determine impairment, but simply if you actually had consumed that drug in a certain period of time. That's what I remember.

Colleagues, any further comments or thoughts? Perhaps we can ask the department for clarification on their thoughts on this, so we all have the right information.

[Greg Yost]

While it's certainly true that the drugs and driving committee does not recommend to the government that sweat should be included at this stage, the technology is basically in its infancy. Its utility is limited. We do have blood, which is the gold standard. This is the one that's active in your system right now affecting your brain, and would be the one that would be preferable in most circumstances. Urine is very easy to collect—it does not require a specialized thing—and, of course, they can take an oral fluid sample. Oral fluid is recent consumption. Sweat is not. In that way, sweat is somewhat like urine, not as usable.

The main problem, according to the drugs and driving committee, is reliable collection without having it contaminated. They would have to develop entirely new processes for analyzing this stuff in the laboratories. They are not equipped to do that as they are equipped now to do the other bodily substances.

[The Chair, Liberal, Anthony Housefather]

As I understood, and just so that I'm clear, you would never use sweat to determine impairment. That is my understanding from the testimony. You would use saliva as a precursor, and then blood to substantiate and have the gold standard. But either urine or sweat would simply tell you if somebody had consumed this drug within a pretty long period, correct?