Public Safety Committee on Sept. 29th, 2016

[Michael Spratt]

The police do have the power to pull over individuals and check for licence, registration, and sobriety, but the breath test isn't random in that case because there has to be reasonable suspicion, which is another problem with this bill. Some of the reasonable suspicions and presumptions in this bill are settled case law. If there's alcohol emanating from your breath, there's reasonable suspicion. There are a lot of other cases in this bill where the reasonable suspicion standard is deluded and, in the case of the random section, eliminated.

In your case, it's not truly random if the breath test is administered because there would be a constellation of objectionably discernible facts that would lead to that decision.

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

In conversation with the professor, profiling was my primary concern. Yet, in the Orbanski case, it seemed that at least one of the accused was initially stopped in a random stop. That case appeared to be the answer to the profiling concern, but it was not the answer. I'm not asking you to answer this today, but if you could review that case and submit something in writing I would appreciate that.

[Michael Spratt]

I will.

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

With respect to R. v. Mohan and exemptions from the Mohan criteria, we had justice department officials come before us and say that in the wake of a recent Supreme Court case there's been significantly increased court time. I think there have been a wave of applications for the procedures that the police employed at the time of the stop, and that's what this exemption is trying to get at, to eliminate the burden on the courts.

Does that jive with your experience? Do you think it's proportionate to the problem we're trying to solve?

[Michael Spratt]

The increased burden on the courts largely comes from legislation from a previous government that was read down quite significantly in some court cases.

Sometimes legislation to eliminate burdens on the courts can result not only in unfairness but in increased burdens on the courts, and it's particularly problematic.

The case of expert evidence will be before the Supreme Court, so we may have an answer on it, and I may be proven wrong very quickly in my analysis. But there is a danger to having a judicial abdication of that gate-keeping function, especially when the expert evidence at issue—maybe before a jury, maybe highly persuasive, maybe overly-relied upon—is the cause of many wrongful convictions. In these regulations, of course, we're not able to examine that expert qualification, and it's also outsourced by regulation to an entity completely divorced from any court oversight.

That is a large abdication of the judicial gatekeeping function that has been so necessary and has been reinformed again and again by our appellate courts.

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

Thanks very much for your time.

[The Chair, Liberal, Rob Oliphant]

We're at 4:30, which is the end of the first hour. Because we started five minutes late, I'm going to suggest splitting the difference in the two panels and giving Mr. Miller three minutes to end this. We'll have a 55-minute panel next.

Mr. Miller.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Thank you very much, Mr. Chair.

I hardly know where to start, but thank you very much to all the witnesses for being here.

We all want to see the tragedies caused by impaired driving ended, but personally I have quite a problem with this bill, for all the reasons that all of you have mentioned here today.

In the short time that I have, let me say that I've already been contacted by a member of one of my native reserves who was concerned should an officer who maybe has a dislike target somebody on the reserve or that kind of thing, and I think you've pointed that out here.

Mr. Spratt, could you explain briefly what a compelled statement means? I'm not a lawyer, and I wasn't aware of that term.

Secondly, I'll let the two ladies here comment, if they could, on impairment by alcohol, drugs, prescription drugs, texting, or whatever. Even driving down the road texting impairs your ability to drive, and in terms of treating one form of impairment differently from the others, is that a legal issue out there?

I'll leave it at that.

[Michael Spratt]

Very briefly, on the admissibility of statutorily compelled statements—it's on page 30 in my brief—the basic legal reality is this: in some cases you are compelled to provide information to the police. In Ontario, under the Highway Traffic Act, if you're in an accident, you must provide a police report. You must provide details. You must hand over that information to the police.

The basic principle is that it violates section 7 of the charter to then have the state use that material that is extracted by legal force from you in your prosecution. Our courts have gone farther. Our Supreme Court, in R. v. White, has gone farther, and our Court of Appeal in Ontario has gone farther, to say that you can't use that forced statement, which was given under the pain of incarceration for non-compliance, even for the officer to form grounds to do something. It's that important to keep the state out of that sort of business.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Would Ms. Vonn or Ms. Deshman comment on the second part?

[Micheal Vonn]

Certainly, I can do that. Of course, we want to see equity here. We want to see equity between drug-impaired driving and alcohol-impaired driving.

The problem is that the science of our understanding about alcohol impairment is so much more advanced than our understanding of drug-impaired driving. That's the inequity that is at the heart of the scientific problem. As Ms. Deshman was indicating, we can't get ahead of the science, and we can't just will it forward. We don't have it, and that's the simple truth.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Understood.

Ms. Deshman?

[Abby Deshman]

I have nothing to add.

[The Chair, Liberal, Rob Oliphant]

I'll ask two quick questions.

First, several people have referred to Mr. Hogg's opinion. I have a copy of a 2010 written opinion that is not about this legislation or even the predecessor legislation. Does someone have any other written opinion that I don't have?

[A voice]

No.

[The Chair, Liberal, Rob Oliphant]

Okay. I wanted to confirm that.

Secondly, you referred to amendments versus the original statement that we need a new law that should go through a rigorous procedure. At the end, you were talking about amendments. I wanted to confirm which is your preference.

[Michael Spratt]

Our position is to scrap it holus-bolus—

[The Chair, Liberal, Rob Oliphant]

So to speak....

[Michael Spratt]

—but I've included some suggestions for amendments that might alleviate our great concerns to some minor degree.

[The Chair, Liberal, Rob Oliphant]

Thank you very much. That was wonderful testimony.

Thank you for being with us today.

We'll take one minute to change the panel and then continue.

[The Chair, Liberal, Rob Oliphant]

We're going to continue with the second part of our meeting.

We very much welcome Monsieur Therrien, commissaire à la protection de la vie privée du Canada. It's a great pleasure to have you with us, as well as Ms. Kosseim, Mr. Brown, and Ms. Ouimet.

Thank you for being here today.

I am going to suggest that we start with Mr. Therrien.

We have 10 minutes for a presentation, and then we'll see where we are at.

[Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada]

Thank you, Mr. Chair.

Members, thank you for the invitation to appear before you today to discuss Bill C-226.

As you mentioned, Mr. Chair, I am accompanied by Patricia Kosseim, senior general counsel of my office.

I would like to be clear from the outset that I fully understand the seriousness, societal impact and clear dangers of impaired driving. Impaired driving affects far too many Canadians each year and is indeed a grave social problem.

At the same time, the legislation you have invited comment on is multi-pronged. I will focus mainly on the issue of random checks.

My remarks today are intended to offer a framework, drawn from charter jurisprudence, not with a view to predicting the constitutional fate of the bill. There are criminal lawyers who can advise you on that. My goal is simply to analyze relevant privacy policy questions.

In upholding random vehicle stops for the purpose of police questioning to check for sobriety, the Supreme Court of Canada has taken into consideration several factors, including the compelling state objective of ensuring highway safety; the limited purposes connected to that objective and grounded in appropriate statutory authority; the invasiveness, effectiveness and proportionality of the police activity; and the reasonable expectations of the individual as informed by the context.

For the purposes of analyzing the bill before you, among the factors I just listed, the state objective of ensuring highway safety is certainly compelling. However, let me address some of the other important policy considerations such as random breath screening and disclosures of various test results.

As you will note, subsection 320.27(3) of the bill introduces a new ability for police to require individuals operating a conveyance—whether in motion or not—to immediately provide a breath sample on demand for random screening using an approved screening device, where police have an approved screening device in their possession.

Currently, this type of breath screening test can only occur where the police have reasonable grounds to suspect that an individual has consumed alcohol.

In assessing whether it is reasonable to move away from the suspicion standard, I would suggest that Parliament consider the following factors.

First, how invasive would a new state power be, compelling everyone to provide a breath sample on demand? While more intrusive procedures are certainly possible—for instance, the taking of a blood sample—I would suggest that there is a level of intrusiveness in the mandatory procedure suggested, particularly for individuals who are not suspected of any wrongdoing.

Second, how necessary is it to move from the suspicion standard to random sampling in order to reduce the occurrence of impaired driving? To what extent has the current system proven effective or ineffective, and what is the evidence for this?

Third, what does the experience of other countries show, from an evidentiary perspective, as to how much more effective the proposed system in Bill C-226 would be?

I do not have the evidence required to answer these questions, but I do think that these would be relevant questions to ask of those who are proponents of this bill.

Furthermore, I would be remiss if I did not remind members of the privacy risks inherent in a collection that is over-broad and could potentially open the door to disproportionate targeting. I would add that, if you are inclined to approve random testing, I would encourage you to consider prescribing conditions to prevent arbitrariness, a certain way to organize this random testing so that it is not purely at the discretion of individual peace officers.

The other substantive privacy issue I would like to raise is the broadening of purposes for which test results and analysis of bodily samples can be shared.

Proposed subsection 320.37(2) would permit the sharing of the results of any evaluation, physical coordination test, or analysis of a bodily substance, for the purpose of the administration or enforcement of any federal or provincial act. Currently, the use and disclosure of this type of information is restricted to specific Criminal Code, Aeronautics Act, and Railway Safety Act offences, or administration enforcement of provincial law. The bill clearly would widen the potential uses and purposes for which such results may be utilized by authorities.

While I began my testimony by agreeing that ensuring highway safety is a compelling state objective, the same cannot be said about the administrative objectives of all other federal or provincial laws. Therefore, in considering this question of broader sharing, I suggest that you examine whether the objectives of these other laws, for which results could be shared, are sufficiently important to justify the sharing of sensitive, state-compelled personal information. I further suggest that sharing should be limited to those specific laws that meet that standard.

You may also wish to prescribe that the results of random tests, once they have served their purpose, should be destroyed. That would be another way to minimize privacy risks.

In summary, I would encourage members to consider the fuller privacy implications of random breath screening and the broadening of purposes for which results can be shared using the analytical framework proposed.

I look forward to your questions.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Thank you very much.

You have a choice. Who would like to go first?

Mr. Brown.

[Dr. Thomas Brown, Assistant Professor, Department of Psychiatry, McGill University, As an Individual]

Thank you.

My name is Dr. Thomas Brown. I'm a senior researcher and director of the addiction research program at the Research Centre of the Douglas Mental Health University Institute in Montreal; assistant professor in the Department of Psychiatry, McGill University; and a licensed clinical psychologist in the province of Quebec. I'm also a mental health specialist designated by the U.S. Consulate to Canada to assess non-U.S.-citizen visa applicants who are suspected of suffering from substance use disorder related to harmful behaviour, mostly impaired driving. My expert opinion is sought as part of the U.S. visa waiver program, and I have provided it hundreds of times. I am honoured to be provided an opportunity to participate in this session.

Mr. Chair, I would like to express my opinion on two issues with respect to my understanding of the amendments to Bill C-226. The first issue is a general one and relates to value of increasing severity of punishments following a conviction. The severity of punishment to a conviction sends an important message and may on its own deter some individuals from this criminal behaviour. At the same time, my understanding of the available evidence is that the deterrent effects of sanctioned severity are achieved when they are coupled with certainty and celerity in the enforcement of relevant laws. This is also observed in other forensic contexts.

Clinically, while I observe that sanctions in many cases do hurt and appear dissuasive for many offenders, they are frequently seen as unjustified and prosecutory by many other offenders who I and other authorities would consider the most at risk for recidivism and therefore the ones we should be most worried about.

One aspect of this response is that these drivers have probably driven many times, if not by some estimates hundreds of times, without being arrested or suffering mishap. This personal experience is a powerful narrative that distorts their risk assessment when deciding to take the wheel of a car, especially after drinking excessively. They often say, “I can do it”, “I have done it plenty of times in the past”, “I'm only four blocks away from home”, etc. Indeed, it competes quite successfully, especially in a significantly impaired state, with any deterrent effect from the remote possibility of an arrest and other severe negative consequences, including injury.

Our research, as well as that of others, runs in the same direction as these clinical observations. Changing this narrative for offenders requires something more, and measures that facilitate and enhance the use of highly visible enforcement measures, and in particular the addition of checkpoints and random roadside testing, will go a long way in making severe sanctioning more persuasive for primary prevention as well as prevention of recidivism.

My second issue, Mr. Chair, relates to the provisions regarding blood alcohol concentration as a benchmark for an aggravating condition for sentencing purposes. The meaning of BAC in impaired driving is surprisingly controversial. Excessive alcohol use is a necessary precondition for impaired driving, though the actual BAC level for per se conviction is very arbitrary. BAC is an established marker of crash risk, which rises exponentially as BAC increases. Increased risk for injury from all causes starts much lower however, at .02, and, by the time it reaches .05 or .08, it is already several-fold greater than zero BAC. Hence, it is a good marker for impairment and crash risk and is pragmatic as well.

At the same time, the available scientific literature suggests that arrest BAC has not been proven to be a particularly reliable predictor of recidivism risk. Therefore, this confuses me as to its justification as part of a deterrent strategy and possibly triggering more severe sanctions. What does this provision seek to accomplish? Most impaired drivers do not intend to break the law or harm others, but they still must take responsibility for their criminally negligent behaviour.

We have set our criminal per se threshold at .08%, and the law is the law. We have selected the current per se limit for many reasons, but in terms of riskiness and the degree to which it impairs judgment, .08% is already significant. For most Canadians, it represents an excessive amount of alcohol intake. In my opinion, this amendment seems to be saying that being arrested at a BAC of .08% is bad, but a BAC of .12% is worse, even if a crash had not occurred in either case.

We have set a reasonable, some would argue excessively liberal, per se limit for impaired driving. Why would we want to diminish or confuse the significance of our current benchmark by adding another higher benchmark?

Another facet of this concern relates to the utility of an arrest due to BAC. As noted above, an arrest has not proven to be a particularly reliable predictor of recidivism. I also have never heard an impaired driver report to me that being impaired at over .08% was not enough, and that they were motivated to be even at a higher BAC level when driving.

More typically, they drink excessively, frequently to the point of being over the per se limit while having access to a vehicle, and the proclivity to drive it. To what extend they drink over the per se BAC limit involves factors other than greater negligence or more disregard for the safety of others. Indeed, most individuals do not and cannot drink that much.

Impaired drivers frequently report that they felt fit to drive just before an arrest, which we and other researchers hypothesize is a signal for disordered drinking. Moreover, highly elevated BACs suggests the capacity for drinking a lot of alcohol, which again flags the possibility of tolerance, which is also a signal for disordered drinking. In other words, the ability to appraise the level of impairment, which is already difficult for most people, frequently appears even weaker in impaired drivers, and they are also more likely to suffer from bona fide alcohol use disorder.

From this perspective, an arrest due to BAC is likely a more useful indicator of disordered drinking and alcohol use disorder than risk for more impaired driving. Both are characterized clinically by poor control over drinking.

Raising sanctions in the case of a highly elevated BAC risks punishing individuals who are more likely to have a problem that, in many cases, would meet thresholds for alcohol use disorder. In these cases, punishment is an inappropriate deterrent or preventative measure.

In many jurisdictions, an arrest due to BAC is used for remedial and therapeutic decision-making during re-licensing. I consider this to be the more appropriate method to intervene in disordered drinking indicated by elevated BAC, namely as a public health strategy rather than a legal strategy for deterrence or punishment.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

Madame Ouimet.