Public Safety Committee on Sept. 29th, 2016

[Abby Deshman]

I'll briefly agree. Random is not an appropriate word in this context when there are people making choices about who to stop and who not to stop. People are not random. They have thought processes that are sometimes legitimate and sometimes biased, and sometimes unconsciously so. All of that will come out when you give police officers unfettered discretion.

In terms of the defences, I defer to my colleague, the defence lawyer, who's in court.

With the drug-impairment and the legalization of marijuana, there is still a lot more work that needs to be done on what an effective drug-impairment regime looks like. Some of that work is scientific work. The legislature cannot jump the science. You cannot push beyond the science.

I think that trying to pass a comprehensive reform of impaired driving provisions while you have an enormous outstanding question related to drug-impaired driving doesn't make a lot of sense. If you're going to comprehensively reform impaired driving, then you should do it in concert with the science and do it once, so you get it right one time and you do it in the best way you can.

[The Chair, Liberal, Rob Oliphant]

Ms. Vonn, on either or both of those questions.

[Micheal Vonn]

Sorry, I have nothing to add to either one of those responses.

[The Chair, Liberal, Rob Oliphant]

Passing to Mr. Mendicino, you have about a minute and a half.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Can we assume for today's purposes that RBT might infringe section 8 or section 9, and can we just cut to section 1 and ask you to expand on why you say this bill would not meet the rational connection test, the minimal impairment test, or the proportionality test? I'm sure we all agree it's a pressing and substantial objective to keeping our streets safe.

[Abby Deshman]

Absolutely. You're right, section 1 is where it's at, and for section 8 it's the reasonableness.

For a rational connection, it is about whether random breath testing will deter impaired drivers more than what it already does.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Can I stop you right there for a moment? There is evidence to suggest that there is some efficacy there. I think those challenging the legislation would have to present other evidence that would supersede that. Is that a fair assumption?

[Abby Deshman]

I think we have a lack of evidence. There are anecdotes from other countries, but I raised some reasons why those other countries are not great comparators for where Canada is right now. There are some meta studies that have come out and said that there appears to be no difference between RBT and SBT. Those suffer from the flaw, which is noted in Professor Solomon's work, that there are no studies designed to compare these two regimes. That is the problem and that's the rational connection difficulty.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Okay.

I think embedded in your presentation were references to those groups who, for one reason or another, have suffered as a result of stops.

[The Chair, Liberal, Rob Oliphant]

I'm going to be a bit tight because we're very tight, if that makes sense.

Mr. O'Toole.

[Erin O'Toole, Conservative, Durham, ON]

Thank you, Mr. Chair.

Thank you all for appearing.

I'm a lawyer, like many of you. There's an irony here that likely all of us studied Professor Hogg in our constitutional classes, regardless of what school. I know Michael and I were at Dalhousie. I think his examination of rational connection and reasonableness should be quite compelling.

I started my debate in the House of Commons on this bill. I'm going to start today with the names Harrison Neville-Lake, Milly Neville-Lake, Daniel Neville-Lake, and their grandfather, because criminal law is our society's way of expressing moral blameworthiness related to action.

My first question is for you, Michael. You said this bill would be ineffective in achieving the principles of sentencing in section 718 of the Criminal Code. I'm assuming you're referring to deterrents. Is that correct?

[Michael Spratt]

Deterrents, rehabilitation, specific and general deterrents.

[Erin O'Toole, Conservative, Durham, ON]

This is where mandatory minimums always come down and it reminds me of the old law school expression audi alteram partem, I have the other side of this than you do.

There are two other sentencing principles that are often not discussed at all, and one is denunciation and one is protection. In talking with my constituents, which is how I help formulate the law... A totally avoidable crime like the case of the Neville-Lake family is so egregious when it comes to moral blameworthiness, I think those pillars of the sentencing principles should be examined in far more detail, because society created these laws in 1921 and updated them almost every decade in response to increasing societal disgust with the loss of life attributable to something that is absolutely avoidable.

This is not a crime of passion or anything like that. This is absolutely avoidable. In 1969 the 80-milligram level was introduced as a testing feature. Would you not agree that now that there are more ways that can deter, denounce and protect the public, they should be considered, including the randomized Breathalyzer testing?

[Michael Spratt]

I would disagree with your starting premise that this bill would assist in making impaired driving and impaired driving-related deaths, which are so tragic, avoidable. I think the weight of the evidence, arguments at the Supreme Court in the case of Nur, which I'm sure you're well aware of, and the expert evidence, which was accepted by the Supreme Court, by Dr. Anthony Doob, and many of the other studies that are referenced in my paper and the other written submissions that you'll have, dispel the notion that this bill will do anything to avoid those tragic, tragic cases that you speak of.

However, this bill will result in unfairness. It will result in the targeting of individuals. It will result—

[Erin O'Toole, Conservative, Durham, ON]

I'm going to stop you there. I think we've heard concerns about carding and targeting and that humans will have to implement this. In the ways in which law enforcement may exercise where a roadside RIDE test is levied, so that it's not targeting certain neighbourhoods, could we not come up with operating principles that were almost randomized in advance in terms of where randomized testing would be so that it wouldn't target groups?

Is it not possible to come up with an operational approach to avoid some of the prejudices you're suggesting?

[Michael Spratt]

Yes, if I can briefly explain. Recommendation 4 of my written brief—and I think it may be one of the parts I lifted from the Canadian Civil Liberties Association, which it echoes—suggests the sort of compromise of which you speak, that if these random breath samples are deployed as part of a RIDE program that would eliminate some concerns.

Having said that, there are still potential issues even in those situations if police are under-resourced and there are massive delays and detentions while everyone at a RIDE program is being screened.

It's my opinion that it's an abdication of responsibility when you're legislating to say in an ideal world if everything works out, this should be fine—

[Erin O'Toole, Conservative, Durham, ON]

But what if I may—

[Michael Spratt]

—when the evidence is quite to the contrary.

[Erin O'Toole, Conservative, Durham, ON]

What about if, say, there were regulations with respect to the passage of this law on the deployment of RBT that required adherence to an operational approach similar to the RIDE? Would that mollify some of your concerns?

[Michael Spratt]

It may very well. I'd need to see those regulations and study those regulations, but I think it very well could. But there are still massive problems that exist beyond just the random breath testing in this bill that I would really commend this committee to take a deep study of.

[Abby Deshman]

Can I just jump in?

I don't know how you regulate true randomness into a power that doesn't only exist at the RIDE stop.

[Erin O'Toole, Conservative, Durham, ON]

Can I make a suggestion?

[Abby Deshman]

We've tried to actually do that in the Ontario context with street checks. I do not think it's possible.

[Erin O'Toole, Conservative, Durham, ON]

I ran into one of the Google map cars the other day. We've seen them around. You probably have a lot of issues with those cars, too, I'm sure. I asked the fellow—because I've seen them, but never seen them stopped—how he is given his routes? It's by algorithm from California. He doesn't speak to anyone. He maps trails.

I think we could actually leverage technology to take the human potential bias out of the equation, and shouldn't we explore that? I do add once again on the denunciation aspect to this, that the public, certainly in southern Ontario, wanted to see stiffer penalties and in any approach, even we don't think deterrence is achieved, isn't denunciation of the conduct also important?

[Michael Spratt]

I'll just add very briefly that the true randomness that you're suggesting would do little to accomplish one of the goals that underpins this random testing; that is, the effective detection of drivers who might be over the limit, and yet, nonetheless, not display any signs. A needle in a haystack.