Evidence of meeting #26 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was evidence.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Micheal Vonn  Policy Director, British Columbia Civil Liberties Association
Abby Deshman  Director, Public Safety Program, Canadian Civil Liberties Association
Michael Spratt  Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
Daniel Therrien  Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Thomas Brown  Assistant Professor, Department of Psychiatry, McGill University, As an Individual
Marie Claude Ouimet  Associate Professor, Faculty of Medicine and Health Sciences, Université de Sherbrooke, As an Individual

September 29th, 2016 / 4:50 p.m.

Dr. Marie Claude Ouimet Associate Professor, Faculty of Medicine and Health Sciences, Université de Sherbrooke, As an Individual

Mr. Chair, committee members, thank you for inviting me to appear.

I am a professor and researcher at the faculty of medicine and health sciences at the Université de Sherbrooke. My main research areas are impaired driving and young drivers.

In fact, I too would like to offer you suggestions for clarification of the new subsection 320.27(3), which deals with random testing and its definition. I would suggest that the wording of the proposal be clarified. Can we talk about random testing, mandatory testing during specific police action to reduce impaired driving, or mandatory testing at any time under any circumstances when operating a vehicle? There are significant differences between these three definitions.

First of all, when we talk about something random, we often say that it is done or chosen haphazardly. So a string of random tests should be generated, for example, using a sequence of random numbers. That sequence would indicate which vehicles should be stopped to subject the driver to a breathalyzer, or which drivers stopped for various reasons by the police should provide a breath sample. These random techniques are already used by customs officers, who can ask travellers to press a button on a device, which will indicate whether the person will have to undergo a full search.

The word “mandatory” will be defined as “that which is required by law, and which cannot be escaped”. Therefore, the word “random” is not a synonym for the word “mandatory”, whether it's considered during specific police actions or at any time and under any circumstances when operating a vehicle. However, the words “random” and “mandatory” could be used to describe two types of compatible activities, which I will describe later.

The definition of “random testing” found in subsection 320.27(3) is instead similar to the description of mandatory testing, at any time and under any circumstances, when operating a vehicle. It in no way suggests the notion of randomness or of reasonable grounds. It even suggests the obsolescence of reasonable grounds since mandatory testing at any time will include reasonable grounds.

So, it seems to me that the definition in subsection 320.27(3) allows mandatory screening other than that done in the context of specific police action to reduce impaired driving in which all drivers are stopped. The wording also suggests that mandatory testing could be done by officers of the peace who work singly or in pairs. It does not include the screening of all drivers without the need for reasonable grounds to suspect alcohol consumption.

I would suggest supervising these police actions that don't involve the systematic mandatory inspection of all drivers. It might be possible, for instance, to use a random sequence to determine which vehicles to stop, or a random sequence of controlled drivers, once they have been stopped for various reasons. A random sequence could be archived to show the public the random nature of the requested mandatory testing, and also to protect the work of the police. This involves combining the random selection, made at random, with the mandatory testing. Random selection could also be used when there are high traffic volumes, for example, and the police don't want to stop everyone.

In short, it is recommended that the meaning of the terms “random” and “mandatory” be clarified. In addition, there is a grey area in the definition of mandatory testing in the circumstances in which all drivers are not tested systematically and there aren't reasonable grounds to suspect alcohol consumption. Therefore, combining random testing and mandatory testing in these circumstances could help to make the public feel that their rights are being respected, while participating in the demonstration that the probability of being tested is high. It would also help to protect the work of the police.

I would like to raise another point. Mandatory alcohol checks seem associated with reducing impaired driving. however, as the document prepared by the Canadian Centre on Substance Abuse summarizes well, the number of checks that should be done in Canada to reach reduction targets is in the millions.

This will require that, in tandem with the changes, the provinces and police forces need to be given the capacity to put in place these procedures relating to educating the public, police officers and judges. It will also be important to think about the costs and the personnel required on the ground.

In addition, considering the scope of the proposed bill and its ramifications for the codes of the various provinces, as well as the need to inform and train all parties, I suggest an effective date much later than 90 days. There must be a minimum of nine to 12 months on the ground so that all stakeholders can be ready and fully understand all the proposed changes. The objectives could therefore be achieved much more effectively.

I also wish to give my support to paragraph 320.27(2)(d), which states that the fact that the person's involvement in an accident that resulted in bodily harm to another person may amount to reasonable grounds to suspect that a person has alcohol in their body. I think this initiative is important both on the ground, after a collision, and to screen injured drivers who are sent to the hospital.

On one hand, adding the involvement in a collision to the reasonable grounds to suspect that a person has consumed alcohol gives police the ability to identify the collision as a reasonable ground, whey they often had difficulty doing before. On the other hand, paragraph 320.27(2)(d) is a possibility for the police, and not an obligation. I think that mandatory testing is necessary in the case of a collision with injuries.

If testing becomes mandatory or more easily constitutes a reasonable ground to suspect that a person has consumed alcohol, it does not mean that it will be applied systematically. My general suggestion is that the provinces and heads of the police forces in the various jurisdictions strongly suggest to the police that they apply testing, otherwise take the necessary measures to systematically test all drivers involved in collisions with injuries who are taken to the hospital.

The information collected as part of these actions could help to demonstrate that the probability of being tested is high, which is what everyone wants. It would also help to better assess the extent of alcohol use in collisions with injuries.

To conclude, I would also like to extend my support to the elements that will enable police officers to take samples from injured drivers at the site of an accident. We know that the majority of drivers who are injured in a collision and taken to the hospital and whose blood alcohol above the legal limit are not convicted. A review of the 2015 documentation by Robert S. Green and his colleagues, which covers five Canadian studies, reveals that the conviction rate in these cases is below 20%. Several factors explain these low rates. In particular, there is the difficulty in identifying the type of intoxication and obtaining an eligible sample. There is also a lack of resources to apply the law properly.

The changes to the act, including paragraph 320.27(2)(d) that adds collisions with injuries to the reasonable grounds to suspect that a person has consumed alcohol, and the changes that describe the procedure for issuing warrants—think of the longer delays in obtaining them—will make it possible to consider several problems described in the review of the documentation.

However, it's also important to note the need for more assistance in applying the legislation. It sometimes takes the police a long time to proceed in the case of hospitalization. I strongly suggest giving the police forces the capacity to use these new procedures to maximize their effectiveness.

5 p.m.

Liberal

The Chair Liberal Rob Oliphant

We're going to begin seven-minute questions.

We'll start with Mr. Di Iorio.

5 p.m.

Liberal

Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC

Thank you, Mr. Chair.

First I'd like to thank the witnesses, both the ones who have already testified and the ones in the room right now. Your cooperation and the quality of your presentations are a big help to us.

I have a question first, Mr. Therrien and Ms. Kosseim. I will summarize it and then I will briefly explain why I'm asking it this way.

Should the bill be adopted as is, especially subsection 320.27(3), what would you do? How would you implement the exercise of your jurisdiction and the powers related to it? It is the provision on random testing.

5 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

In the case of random checks, a procedure that could be helpful to mitigate the risks to privacy would be to require police to conduct a privacy impact assessment.

Before using random checks, I encourage you to explore the possibility of establishing parameters so that not only are the checks not random, but they aren't arbitrary either or left to the full discretion of the peace officer. That would be the first thing to do. If you don't think there should be such controls, I strongly encourage you to try to structure this and have parameters for the exercise of police powers on the matter.

Beyond those criteria that would give legal parameters for the exercise of police powers, there is, in the right to privacy, the mechanics of the privacy impact assessment. Based on that assessment, government authorities would be asked to assess how they would implement the power in question. They would reflect on how to do it, how the risks to privacy could be mitigated and how to manage these things.

5:05 p.m.

Liberal

Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC

Would the entry into force of this provision require an amendment to the legislation governing your institution?

5:05 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

Are you talking about the assessment of factors?

5:05 p.m.

Liberal

Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC

If subsection 320.27(3) was adopted as is, would an amendment to your organization's enabling legislation be required?

5:05 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

If the idea is to require police forces to conduct these evaluations, the answer is no. As far as the federal police or federal organizations—including the RCMP—are concerned, they must do these evaluations. That's at the federal level only. At the provincial or municipal level, other sets of rules would be in place.

5:05 p.m.

Liberal

Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC

Thank you.

My next question is addressed to Dr. Ouimet first; Dr. Brown can respond afterward.

I do understand the distinction you're making with regard to subsection 320.27(3). You're saying that the provision, as worded, is more mandatory than random. The heading contains the word "random", but there is no reference to that in the provision itself.

I'd like you to enlighten me about the following situations.

First, let's consider the case of a Canadian citizen who has had a meal and a few drinks, and then assesses his or her condition poorly, sincerely believing that he or she is below the limit. And now, let's consider the case of another person, who behaves with disrespect for the safety and welfare of others—a person for whom the pleasure of drinking alcohol is the only thing that counts, and who then takes the wheel of a car.

Could you enlighten me about how these situations would be handled?

5:05 p.m.

Associate Professor, Faculty of Medicine and Health Sciences, Université de Sherbrooke, As an Individual

Dr. Marie Claude Ouimet

I will let Dr. Brown respond.

5:05 p.m.

Liberal

Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC

If you like, you can complete the answer afterward.

5:05 p.m.

Assistant Professor, Department of Psychiatry, McGill University, As an Individual

Dr. Thomas Brown

The reasons that lead to driving while impaired vary widely. There are all kinds of motivations, and different people find themselves in such a situation. Certainly, a good number of those people have made an error in judgment, and it's simply one episode. In other cases, it reflects a lack of consideration for public safety, or a lack of respect for the law.

As researchers, we try to find ways to better personalize our approach so this risky behaviour can be prevented. There is no easy answer. It must be considered a progressive strategy, with assessment.

I would add one consideration to the discussion. We've observed that alcoholism and impaired driving are not synonymous. They are different. There are alcoholics plain and simple who don't drive, and there are heavy drinkers who constantly drive while impaired.

We must therefore avoid simplifying things, and saying that it's only a lack of judgment. For some, it's a lack of judgment, but for others, it's a sign of a substantial lack of control in relation to alcohol.

For others still, it's a negligent, almost criminal act, and while alcohol is what precipitates the arrest and conviction, it's not necessarily at the root of the behaviour.

5:10 p.m.

Liberal

Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC

If we take the first example I gave—that is, the person who assesses their condition poorly, are there technological means that can rectify that?

5:10 p.m.

Assistant Professor, Department of Psychiatry, McGill University, As an Individual

Dr. Thomas Brown

Judgment is often subjective, and can lead to confusion. People are often unable to measure their level of impairment.

There are means, such as making breathalyzers available in places where alcohol is consumed. There's also educating and raising people's awareness about the number of drinks which, given a person's weight, can bring their alcohol level above the legal limit.

There are means. Is there a motivation...

5:10 p.m.

Liberal

The Chair Liberal Rob Oliphant

We need to end it here. Sorry.

Many thanks for the questions and answers.

We'll continue with Mr. Généreux.

5:10 p.m.

Conservative

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

Thank you, Mr. Chair.

I thank the witnesses for being here.

Let's continue this discussion. I'll give you the opportunity to continue, because I'd like to hear from all three of you. Clearly, there is room for improvement to the bill. What elements would you suggest we add in order to improve it?

Earlier, a lawyer told us he would scrap the bill, and draft a new one. Do you think there's a chance of improving this bill, rather than taking such radical action? If so, what elements would you change?

5:10 p.m.

Associate Professor, Faculty of Medicine and Health Sciences, Université de Sherbrooke, As an Individual

Dr. Marie Claude Ouimet

I would say subsection 320.27(3). I would determine exactly what the intent is.

Personally, I would suggest combining the random and mandatory aspects of the testing. I don't think anyone will oppose roadblocks, or mandatory testing of everyone at roadblocks.

However, detection—that is, police officers, working alone or as a pair, stopping people and having them undergo a test without reasonable cause—might be the most problematic.

If the mandatory and random aspects are combined, a police force could order that, during, say, a certain week, a test will be imposed on every three arrests. In other words, a person will be tested every three times someone is arrested. Consequently, it would be documented. This way, there would be no concerns about the fact that a police officer had to exercise judgment.

5:10 p.m.

Conservative

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

The person would have been arrested for another reason, perhaps.

5:10 p.m.

Associate Professor, Faculty of Medicine and Health Sciences, Université de Sherbrooke, As an Individual

Dr. Marie Claude Ouimet

They would have been arrested for another reason. However, a random sequence would make it possible for us to do this kind of testing. It could not be argued that the person was arrested because of personal characteristics.

Legal drafting is obviously not my field, but if the random sequence is also retained, I think it's an acceptable approach, which would allow the testing to be carried out, while protecting the police officer's work.

5:10 p.m.

Conservative

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

Mr. Brown, I'd like you to continue with the answer you were giving to Mr. Di Iorio. I find it very interesting.

Technologically, you say there's a way to do a test in certain places where alcohol is sold. There has been equipment of this kind in bars for a long time. Do you think we could go further? I imagine certain technologies have evolved. Maybe there are new technologies with which I'm unfamiliar, because I don't go to bars often.

In your opinion, can people's psychological behaviour be influenced by such equipment?

5:10 p.m.

Assistant Professor, Department of Psychiatry, McGill University, As an Individual

Dr. Thomas Brown

It's difficult to say. It's a very persistent risky behaviour. By definition, certain people are risk-takers, and have a greater sensitivity to alcohol than we do. It's difficult; it's a challenge.

We did an experiment to measure the impact of the presence of a device that rang if someone came into a vehicle with a rather high alcohol level. It was not particularly determinative in the decision whether or not to drive. I wish I could be more optimistic.

5:15 p.m.

Conservative

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

If the car didn't start, it would be even better.

5:15 p.m.

Assistant Professor, Department of Psychiatry, McGill University, As an Individual

Dr. Thomas Brown

Yes, the ignition kill system is very effective.

5:15 p.m.

Conservative

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

I want to make sure Mr. Therrien speaks.

Privacy is an issue, whether the testing is random or not. In the document you provided us, you ask the following question: how invasive would a new state power be, compelling everyone to provide a breath sample on demand?

In your view, would mandatory or random testing—we won't debate the semantics—be very invasive?

5:15 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

Many things are more invasive than that. The insertion of a needle into a human body, for example, would undoubtedly be more invasive.

However, even if it isn't very invasive, the very fact of having to answer, and of being subjected to the procedure when one has not done anything wrong and there is no suspicion, is invasive. It's like having to go through an X-ray machine at an airport, for example. In both cases, there is no direct intervention on the human body—something which, absent judicial authorization, would constitute assault.