moved that Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, be read the third time and passed.
Madam Speaker, I appreciate this opportunity to speak to Bill C-46, an act to amend the Criminal Code, offences relating to conveyances. At the outset, I would like to extend my heartfelt thanks to the members of the Standing Committee on Justice and Human Rights for their thorough review in consideration of this bill. Committee members heard over 45 witnesses and reviewed a significant amount of material on a highly complex topic, and I am grateful to them for their diligence and believe that the bill is stronger because of their efforts.
As I have indicated on previous occasions, the primary objective of this legislation is to save lives, lives that continue to be tragically cut short by irresponsible and reckless decisions to drive after consuming alcohol or drugs. I am continually frustrated and deeply saddened by the stories of families who have lost loved ones as a result of impaired driving. Mothers and fathers should no longer have to endure the anguish and heartache of burying their children following an alcohol- or drug-related traffic collision. Children should no longer be orphaned by a driver's careless decision to drive after consuming alcohol or drugs. This bill aims to reduce deaths resulting from impaired driving.
This bill also aims to reduce the impact of impaired driving on those who suffer traumatic, lifelong injuries caused by another person's irresponsible decision to drive drunk or high. No one should have to endure months or years of painful and costly physical rehabilitation. People should not have to give up their jobs or the pastimes they love due to injuries caused by an impaired driver.
Despite great efforts by governments and advocacy groups to raise awareness of the dangers of impaired driving, we still see far too many headlines about these tragic incidents. There is no excuse for this type of conduct in our society, yet by some estimates, more than 1,000 people lose their lives every year to this entirely preventable crime. Countless more are injured.
In my view, it is my responsibility as the Minister of Justice and Attorney General of Canada to take any and all reasonable measures to increase deterrence and the detection of impaired drivers.
Bill C-46 aims to strengthen the criminal law response to both drug- and alcohol-impaired driving. The elements related to drug-impaired driving will come into force on royal assent to ensure that a robust drug-impaired driving regime is in place well in advance of Canada's legalization. Although it is difficult to predict the impact of cannabis legalization on the rate of impaired driving, information from other jurisdictions that have legalized cannabis suggests that there could be a slight increase. Canada needs to be prepared.
The measures proposed in Bill C-46 would increase the deterrence, detection, and conviction of those who engage in reckless and irresponsible conduct. Specifically, Bill C-46 would authorize police officers to use roadside oral-fluid drug-screening devices to help them determine whether a driver had drugs in his or her body. These are minimally invasive hand-held devices that expediently analyze a sample of oral fluid. If police officers had a reasonable suspicion that a driver had a drug in his or her body, they would be authorized to demand a sample of oral fluid for analysis at the roadside. A positive result on the drug screener would be highly indicative of recent drug consumption and could lead to further investigation, either by a drug recognition evaluation officer or through a blood sample taken by a qualified technician.
In addition to authorizing roadside drug screeners, Bill C-46 would also create three new driving offences of being over the legal limit within two hours of driving. This type of offence is similar to the offence that prohibits driving over the legal limit for alcohol, otherwise known as the over-80 offence. These offences would be proven through a blood sample, which provides the best, most reliable evidence that the drug is active in a person's body. The bill would provide that police officers could demand that a blood sample be provided by a driver when they had reasonable grounds to believe that either a drug-impaired or legal-limit offence had occurred.
These offences would facilitate the prosecution of drug-impaired drivers by setting strict limits for the amount of drugs one could have in one's body while behind the wheel. As I have previously indicated, the actual legal limits would be set by regulation. The proposed drug levels were recently published in part I of the Canada Gazette for public comment.
On that note, three legal drug-limit offences are proposed. There would be a straight summary conviction offence, which reflects our government's precautionary and public safety approach to THC consumption and driving. The draft regulations propose that only cannabis, in particular THC, would fall under this offence at this time. This offence would apply if a driver had between two and five nanograms of THC per millilitre of blood within two hours of driving.
Bill C-46 also proposes two hybrid offences. One of these offences would apply to drivers found with impairing illicit drugs. For example, it would not be permitted for drivers to have any detectable level of cocaine or LSD in their bodies. This same hybrid offence would apply to drivers with levels of legal drugs that are expected to cause some driving impairment. For example, the offence would apply to drivers with five nanograms or more of THC per millilitre of blood. Finally, the third hybrid offence would apply to drivers with a combination of an impairing drug and alcohol, recognizing that combining drugs and alcohol can increase the impairing effects of both substances.
At this time, the draft regulation only proposes levels for alcohol and THC in combination, but in future, other drugs could be added. It is proposed that 2.5 nanograms of THC per millilitre of blood in combination with five millilitres of alcohol in 100 millilitres of blood would constitute this offence.
Some witnesses who appeared before the standing committee did not support this proposed approach. They expressed concern that the science with respect to THC, in particular, was not clear enough to justify setting legal limits. However, let me be perfectly clear. One thing that all witnesses agreed on was that THC is an impairing drug.
Our government is aware that unlike alcohol, it is difficult to correlate the blood concentration of THC with impairment. That is why a summary conviction offence was proposed for the two to five nanogram range.
As indicated by the drugs and driving committee in its final report to the government on this issue, setting the legal limit at two nanograms of THC per millilitre of blood would reflect a precautionary and public safety approach, one that would strike the right balance between the science of measuring THC impairment with the real risks associated with driving after consuming THC. By adopting this lower THC level through Bill C-46 and the regulations, our government would be signalling that Canada will not tolerate driving after consuming impairing drugs.
I would like to add that the new per se offences for drug-impaired driving would contain several inherent protections to avoid charging drivers who were not actually impaired. These protections would include the requirement that the officer in question develop reasonable suspicion of drugs in the body of the driver before administering the roadside drug screeners or other roadside sobriety tests. Where the driver failed the drug screening test, this itself would be highly indicative of recent consumption. Ultimately, the officer would have to have reasonable grounds to believe that an impaired driving offence had been committed before arresting the individual and carrying out further testing at the station.
To sum up, the drug levels that are proposed for these new offences are consistent with the approach taken in other jurisdictions, and I am confident that they reflect the best available scientific evidence while at the same time ensuring that we are proceeding in a manner that protects the safety of the public.
I would like to spend my remaining time addressing other elements of Bill C-46 that propose to reform the alcohol-impaired driving regime. This area of the criminal law perplexes even the most seasoned criminal professionals. It has developed in a piecemeal fashion since the first offence was enacted in 1921. It has never been comprehensively reformed, and according to a 1991 report by the former Law Reform Commission, its provisions are “virtually unreadable”.
This state of affairs cannot be permitted to continue, especially in the area of criminal law that is among the most litigated. Bill C-46 proposes to create a clear, simplified, and modernized legislative framework to ensure that the public can better understand the law and also ensure that the police can effectively enforce it.
Another element proposed in Bill C-46 is mandatory alcohol screening. In my view, this proposed reform is the most critical reform respecting alcohol-impaired driving in this bill. Mothers Against Drunk Driving agrees. In May 2017, Andrew Murie, the chief executive officer of MADD, said the following:
Simply put, mandatory screening is one of the single most effective ways Canada can reduce impaired driving. It has been in place in many other countries for years and has helped them to reduce overall road crashes and fatalities.
Mandatory alcohol screening represents a significant change to the Canadian law of impaired driving, but it is a tool that has been used in many other countries, as I said, for several years. It was pioneered by the Australians in the 1970s with great success, and more recently it has been adopted in several European jurisdictions, including Ireland and Scotland.
This proposed element was the subject of much commentary and debate at the standing committee, and I thank all those who presented on this topic for their thoughtful and insightful comments.
Under the current law, police officers at the roadside must have a reasonable suspicion that a driver has alcohol in his or her body before they can demand a preliminary breath sample. Although this is a low threshold, the standing committee heard from witnesses who confirmed that a driver is often able to conceal visible signs of impairment from the police and thereby pass through a traffic stop undetected. The number of impaired drivers who can escape detection is simply astounding. In my view, this significantly undermines the detection and enforcement efforts of police as well as the public messaging with respect to impaired driving. If more than 50% of impaired drivers are able to escape detection following a traffic stop, a new approach is absolutely needed.
The chief concern raised by witnesses with respect to mandatory alcohol screening was that it would lead to racial profiling. While I strongly condemn racial profiling, I am confident that mandatory alcohol screening would neither facilitate nor encourage this conduct. In fact, Bill C-46 would guard against this in a number of ways.
First, the bill is clear that mandatory alcohol screening would only be authorized following a lawful stop. The Supreme Court of Canada has determined that police are authorized to stop any driver at any time to ascertain whether they are complying with the rules of the road, including whether they have a licence and insurance. These stops are authorized in both common law and provincial highway traffic laws. If an officer was acting within this authorization, he or she would be authorized to demand a preliminary breath sample.
Second, mandatory alcohol screening is most effective when all drivers know that they can be tested. Under our approach, drivers would know that they could be tested at any time and at any place to ensure that they were not drinking and driving under the influence of alcohol.
Finally, the standing committee amended the preamble of the bill to reflect the expectation that all investigative powers, including mandatory alcohol screening, must be exercised in a manner that is consistent with the Canadian Charter of Rights and Freedoms. While this is implicit in all our legislation, given the concern expressed with respect to the potential impact of mandatory alcohol screening, I understand the motivation behind this amendment.
I would now like to discuss two more key changes proposed in the bill, in particular the proposed changes to the “over 80” offence. Currently this offence is committed if the driver has in excess of the allowable blood alcohol concentration while driving. The proposals in Bill C-46 would change this time frame so that it would be an offence to be over the legal limit within two hours of driving.
The purpose of this revised formulation is to eliminate the risky behaviour associated with bolus drinking, sometimes referred to as drinking and dashing. This is when a driver consumes a significant amount of alcohol immediately before or even during driving in an attempt to get home before the alcohol is fully absorbed. This proposed formulation of within two hours also has the benefit of limiting what is known as the intervening drink defence. This can occur when a driver consumes alcohol after being stopped by the police but before a breath sample. This has the result of frustrating the breath-testing process, and this is unacceptable.
Some witnesses raised concerns that this could criminalize people who have done nothing wrong, who have simply had a few drinks after arriving home after a long week. I would like to clarify that the bill provides for this scenario by proposing an exception to the offence. It is intended not to apply to cases of innocent intervening drinking.
Furthermore, in situations where a driver's breath is tested outside of the two-hour window of the offence, a legislative formula is proposed to calculate what the blood alcohol concentration would have been at the time of the offence. I would like to thank the standing committee for its amendment to this provision, which clarifies that before a judge can resort to the formula, there must be at least 20 milligrams of alcohol per 100 millilitres of blood in the driver's body.
The final element that I wish to discuss aims to end what some have referred to as the “disclosure wars”. Bill C-46 aims to clarify that the maintenance records of the approved instruments are not relevant in determining whether or not the results of the breath tests are accurate. It is enough that the crown disclose the test results, any error messages, and the results of the calibration or system-blank checks.
Bill C-46 proposes many other changes aimed at improving the law of alcohol-impaired driving. A legislative backgrounder to Bill C-46 and the accompanying charter statements outline many of the key proposals, including the rationale and the charter considerations. If members have not yet done so, I would encourage them to review these documents.
I am immensely proud of the reforms proposed in Bill C-46. I am confident that they will reduce deaths and injuries. I am also grateful to all the witnesses who presented their views on the bill before the Standing Committee on Justice and Human Rights. In my view, the bill is stronger for their input.
In closing, I urge all members to vote for public safety and support Bill C-46. We must all work together to eliminate impaired driving and all of its tragic consequences.