Public Safety Committee on Sept. 27th, 2016

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you.

I have another question, and I'm not sure who could answer it.

I am not a lawyer, and I am curious about something. Bill C-226 has not yet been passed, but let's take it out of the equation anyway. Based on what we are hearing, marijuana could be legalized within a year. Would it be complicated to then amend the existing legislation in light of that new situation?

[Greg Yost]

The bill contains elements that would help a bit in the fight against drug-impaired driving. With this bill, we are trying to make the testimony of evaluating officers more effective. If an evaluating officer determines that a person's ability to drive is impaired by a drug after analyzing a sample of bodily substances, it is presumed that the drug that caused an issue during the evaluation was also causing a problem on the road. It has nothing to do with the legalization of marijuana. It's already a crime to have your driving ability impaired by a drug, be that drug legal or illegal. So there is no change in that respect.

Regardless of what will happen with this bill, I think that marijuana-impaired driving will continue to be a crime.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Don't worry, I am not suggesting otherwise. I just want to understand the situation. In the context of this debate, as legislators, we have to think about the future. I am just trying to get a good grasp of the current state of the legislation. Of course, changes in police work are to be expected. My question was more about that aspect.

I don't have very much time, Mr. Dakalbab, but I wonder how the parole board sees this current debate on Bill C-226.

[Talal Dakalbab, Executive Director General, Parole Board of Canada]

We are an independent tribunal. So we apply the law in the normal way. As far as we are concerned, the bill has an impact only on record suspensions, since there is currently an exclusion. The majority of our claims for record suspension or our pardons have to do with that provision. If there was a change, it would mostly affect claims for record suspension and pardons.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Mr. Erskine-Smith, go ahead.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

My first question picks up on what Mr. Mendicino, Mr. Miller, and Mr. Dubé said about the constitutionality. This bill is based on Bill C-73, which was drafted by the justice department. Do you have a charter compliance opinion related to Bill C-73 that you could provide to this committee?

[Carole Morency]

It's true; Bill C-226, as a private member's bill, reflects very much what was introduced as a government bill in the previous Parliament.

It would not be for us to comment on what advice the sponsor himself has received on Bill C-226. When ministers of justice, including the one in the previous government, introduce a bill in the House, they have to certify it according to the Department of Justice Act, so, yes, that would have been the process.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Can you provide a copy of all charter compliance opinions on Bill C-73 to this committee?

[Carole Morency]

We are appearing as subject matter experts to assist the committee in its study on this private member's bill. As lawyers, we provide advice to the Minister of Justice and not to the committee, so that is not something we are in a position to do. We are here to assist the committee with its study.

It would be under solicitor-client privilege and related issues.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Okay. In preparing Bill C-73, presumably there was a department rationale, which that you haven't provided. Obviously, it is now a private member's piece of legislation, so there was no rationale, and there was no opening statement today. I would ask for any rationale, any briefing documents, reports, or any material prepared by the department in support of Bill C-73 that would be relevant to this committee in its study of almost identical legislation, Bill C-226.

[Carole Morency]

Again, I think we would find ourselves in a difficult situation with solicitor-client privilege on that, but certainly we could undertake to provide to the committee what I suspect the committee may already have access to, which is some of the materials that are normally released when the government introduces a bill. There would be the news release, the background—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I have that information. Thanks very much.

I understand, from the material we have from the Library of Parliament, that the conviction rate for impaired driving is 84%. Sorry, this is from Juristat 2011. It is higher than the general conviction rate of 64%.

Are we looking for a problem to fix here with respect to getting rid of the bolus defence, getting rid of the intervening drinking defence, and the other procedural changes? Again, with Bill C-73, you would have more intimate knowledge of this, without specific reference to Bill C-226. Are we aiming for a much higher conviction rate with these changes? Have the courts suggested these changes are necessary to improve the conviction rate?

[Greg Yost]

First, I'll address the bolus and intervening drink changes. In the R. v. St-Onge decision, the Supreme Court repeated its criticism of both of those defences.

You will perhaps want to hear from the alcohol test committee, but it is my understanding that a person downing several drinks and getting into his or her car represents a danger to the public, even if he or she hasn't quite gone over 0.07%.

The proposal to have the offence being 80 milligrams or over within two hours actually follows a common model in the United States and other countries to get around that issue of, “Was I just under 80 as the police pulled me over?” That's more a matter of a public policy issue.

The 84% is well above others, but we are dealing with a situation in which, in the overwhelming majority of cases, the person has been found behind the wheel; the police officers have developed suspicion; the person has failed an approved screening device, and he has been shown to be over 80 milligrams on the approved instrument back at the station.

Consequently, 84% is nowhere near the United Kingdom's 98%, and its laws are similar to ours.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

With respect to the previous Carter defence, there was a worry brought by the court that there was a disconnect between the success rate of acquittals under the Carter defence and the scientific evidence.

Is there the same worry with respect to the bolus defence and the intervening drink defence regarding the numbers? Do we have those numbers?

[Greg Yost]

No, I do not have numbers as to when those defences were used.

The Canadian Centre for Justice Statistics only gets raw numbers, acquittals and such. The 84% is up from what it was at one stage. It was about 70%, 15 years ago or thereabouts. I think you'll find that number in the 2002 Juristat on impaired driving. It was 72%, so some of the changes have been helpful.

The proposals are in fact to respond somewhat to criticism in the St-Onge decision that Parliament had never specified in detail the conditions that the alcohol test committee considered to be required. The alcohol test committee has clarified its position in several ways since that time, and the bill actually says that if you follow what the alcohol test committee did, there is conclusive proof that it was right.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

With respect to that Supreme Court case that you've referenced, I understand from Bill C-73 and the information the department raised publicly that the bill was to get at the wave of applications and the increased court time that occurred in the wake of that Supreme Court decision.

Do we have any numbers to justify that wave of applications? Was it a sustained wave? What are we looking at in terms of numbers, and what evidence do we have?

[Greg Yost]

I don't know how many cases have been decided.

Back on my desk, I have one that I received this week from Quebec, which was an appeal from 100 decisions consolidated into one appeal. The person was pulled over in 2009. The expectation is that they are going to try to appeal that to the Court of Appeal.

There have recently been some judgments, particularly in Ontario, that have been helpful in terms of delineating what's required in terms of discovery. I do know that all of the provinces—and we deal with them regularly—said they were facing a wave of appeals. Alberta is going to its Court of Appeal in October, with a consolidation of something like 15 cases dealing with it.

There's been a wave, but I can't give you exact numbers.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

[The Chair, Liberal, Rob Oliphant]

Monsieur Généreux.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Thank you, Mr. Chair.

I want to thank the witnesses for joining us today.

Mr. Yost, you said earlier that random testing in Canada's rural regions would be more difficult. If the testing was random, it would mean that it can be done at any time, without even a specific traffic stop. Does the term random mean that the testing can be done anytime? Did I understand what you said?

[Greg Yost]

If the proposal in Bill C-226 was accepted, the answer would be yes. Any police officer in their patrol vehicle could administer the test to identify the presence of alcohol on the road. In major cities, a dozen police officers may stop traffic and select five or six individuals to test. In a rural setting, the police force may consist of four or five officers. So it would be a bit difficult to do the same.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

In Quebec, the majority of police forces in small municipalities are part of Sûreté du Québec and are grouped by regional county municipality, RCM.

I was the mayor of the town of La Pocatière for four years, and I saw a number of roadside tests. The town has a population of 4,500. What do you mean by rural? Are you talking about villages of 200 people? In reality, those small municipalities or regions are often covered by Sûreté du Québec in a much broader way, you could say. Sûreté du Québec patrols the highways, but it is also in municipalities through RCMs.

I could give you the example of Rivière-du-Loup, with a population of 20,000 people. It used to have its own police force, but that role has been taken over by Sûreté du Québec, which is increasingly present everywhere. So it can carry out roadside tests in villages that still have a bar, even though their numbers are dwindling. So I don't see where the difficulty lies.

[Greg Yost]

I assume the committee would like to hear from police officers about the situations they face on the roadside. I am a lawyer in Ottawa, and I don't really know what issues they may be facing.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

You are a lawyer. You say that this would be more difficult to apply in a rural setting. At the end of the day, the consequences for a randomly selected driver would be the same in rural and urban areas. What do you think about that as a lawyer?