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.