Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 8 - Evidence for February 20, 2008 - Afternoon meeting
OTTAWA, Wednesday, February 20, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, An Act to amend the Criminal code and to make consequential amendments to other acts, met this day at 2:02 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, I see a quorum. The Standing Senate Committee on Legal and Constitutional Affairs is continuing its study of Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other acts.
This afternoon we are fortunate to have with us, from the Canadian Society of Forensic Sciences, Mr. Randy Prokopanko. Alcohol Test Committee; and from the Royal Canadian Mounted Police, Sergeant Robert Martin; Training Facilitator of the Drug Evaluation and Classification Program.
Thank you both for being with us. This is an important part of a large and complex bill. Please proceed.
Randy Prokopanko, Alcohol Test Committee, Canadian Society of Forensic Sciences: Honourable senators, I will begin by introducing the Alcohol Test Committee for those of you not familiar with the Canadian Society of Forensic Sciences Alcohol Test Committee, to perhaps help you understand why we feel we are in a position to assist you with this particular bill.
The Canadian Society of Forensic Sciences, CSFS, established a special committee on breath testing in 1967 to study scientific, technical, and law enforcement aspects of breath tests for alcohol. The society believed it was important to emphasize that the determination of blood alcohol concentrations by means of breath tests is a scientific process and, for that reason, must be performed according to proper scientific practices and standards established by scientists with specific knowledge of the subject.
With this focus, the CSFS committee developed recommended procedures for the performance of breath tests as well as minimum standards for training police officers in the use of equipment, for the administration of a breath test program, and for the materials to be used with the equipment.
These standards were published in December 1969, coincident with the introduction of the so-called ``Breathalyzer'' laws in Canada. As a result of these initial contributions to the development of a high standard of practice, the widely recognized expertise of the society and the members of the committee, the Department of Justice invited the CSFS committee, originally known as the ``breath test committee,'' to be its principal scientific adviser on matters related to breath testing, a function that has continued to this day.
Over many years, the breath test committee kept abreast of advancements in breath test technology, changes in Criminal Code legislation and various issues surrounding breath testing. Some highlights include the introduction of roadside screening devices, the advent of automated breath test instrumentation, mobile breath testing and provisions to demand blood samples. The latter issue demonstrates the broadening interests of the committee and its name was changed to the Alcohol Test Committee in 1985.
Today there are two major roles of the Alcohol Test Committee. The first concerns development of standards that new instruments, screening devices and containers must meet. These standards include recommended evaluation procedures and guidelines by which evaluations of new equipment will be performed. This ensures that any new equipment that requires approval within the Criminal Code, not only meets rigid specifications but that the manner in which the evaluation occurs is consistent.
The second major role is to develop standards and procedures for the implementation and use of approved instruments and screening devices. This encompasses comprehensive recommendations on alcohol solutions used to check accuracy, on training, maintenance and operation, as well as on the roles and qualifications of key personnel involved in the administration of a breath test program.
I have been a member of the Alcohol Test Committee for a little over 13 years now and I have served as chair of the committee on two separate occasions. I have just passed on the chair of a subcommittee dealing with maintenance and modification issues to new breath test equipment within the Alcohol Test Committee, and we are all involved with the evaluation or development of standards for the recommended standards and procedures.
If I can turn my hat sideways, in my day job I am a civilian member of the Royal Canadian Mounted Police, I am presently serving as the national breath test program coordinator. My role involves primarily coordinating the national forensic resources in support of breath test programs across Canada, not only RCMP but also municipal partners, city police, Canada Border Services Agency, any breath test program in the country that requires scientific, technical, and policy development, things of that nature.
I should probably exclude Ontario and Quebec in that the RCMP really does not get too involved, although I have a close relationship with the two individuals who pretty well head the programs in those two provinces, so we keep in close contact to try to coordinate our activities.
I have been a member of the RCMP for about 31 years. I have been involved with alcohol and breath testing my entire career. Jokingly said, I do not do drugs and I will leave that to my colleague to talk about those things. I am happy to answer any of your questions dealing with breath test equipment and alcohol-related issues.
The Chair: We have in fact two RCMP experts here, which is a bonus.
Sergeant Robert Martin, Training Facilitator, Drug Evaluation and Classification Program, Royal Canadian Mounted Police: Honourable senators, to clarify, I am not with the RCMP; I am with the York Regional Police, currently on secondment to the RCMP for a period of four years to teach in the drug evaluation and classification program. They are my bosses for the next four years. I have been a member of the York Regional Police since 1989. I represent the Drug Evaluation and Classification Program, a program that enables us to train Canadian police officers to deal with people impaired by substances other than alcohol, being drugs, and to deal with the growing issue that seems to be coming to the forefront in our country.
As it stands, we have 214 certified drug recognition experts in our country with another 67 still in the process. We have a long way to go before we meet the needs that we see across the country. The drug evaluation classification program trains the drug recognition experts who are specially selected and specially trained officers in a 12-step process to determine whether or not a person is impaired by a drug. If that person is impaired by a drug a toxicological sample will be collected for analysis and then we proceed by charge.
At present, the entire process for drug testing people who are impaired is voluntary in this country. That means we ask people to participate in the program and if they refuse there is not much we can do about it, thank you very much.
This bill will give us the power to demand the samples from these people and will make our jobs substantially easier and make our roads safer.
That is all I have to say.
The Chair: That leaves the field wide open for questions.
Senator Stratton: You cannot answer the question about whether the police would haul over a little guy such as me who is driving down the road too slowly. However, if I am on drugs of a certain nature and I am indeed impaired, what would the result be? What process would I be put through if I am seen by the police to be impaired? If I am impaired, I am impaired; I do not care if it is from marijuana or whatever. Could you describe the process?
Sgt. Martin: The Drug Recognition Expert process is a 12-step process. First, the car has to be stopped, and in order to stop the car the officer has to have reasonable grounds or at least a suspicion that the person is impaired. Then he has to form reasonable grounds to place the person under arrest. If the officer forms the opinion the person is impaired by drugs, the person is taken to the station where a Drug Recognition Expert gets involved.
The 12-step process is as follows: First, we do a breath-alcohol test. There is no point going through a 12-step process and inconveniencing someone if we are dealing with alcohol. We have proven testing equipment we can use to determine the blood-alcohol concentration immediately.
Next, we talk to the arresting officer: What did the arresting officer see? What made him believe the person is impaired? What was the car doing? What was going on at the time he made the arrest? Certain drugs manifest for short time periods, and we want to know what he saw because it will help us go towards our opinion in the end. We do not base our opinion on any one of the 12 steps exclusively. They are based on the totality of everything we get from the whole 12-step process.
Next, we talk to the person. The preliminary examination is composed of what we call ``medical rule-out questions.'' We ask specific questions: Are you a diabetic? Are you an epileptic? Do you have any medical conditions? Do you have any head injuries? We want to know whether this person is suffering from a medical condition. If they are suffering from a medical condition, we will stop the process and invoke the medical emergency system, our ambulance services, and the person goes to the health system, not the law enforcement system. We take the pulse during this stage and also look at the eyes. We look for a horizontal gaze, which is a very simple eye test. Certain categories of drugs will cause your eyes to jerk involuntarily when they move smoothly. We look for that as a clue. The next step is our divided attention test, where we assess impairment. We do four simple divided attention tests: A Romberg balance, the walk- and-turn test, the one-leg stand and a finger-to-nose test. Those are the four tests we do to determine the impairment of a person.
Next, we take the vital signs. We want to know body temperature and blood pressure, and we take the pulse for a second time. We know certain drugs will elevate vital signs and certain drugs will bring them down. Those results go to the totality of what we are looking for in an evaluation.
We go to a dark room with the person and look at his or her eyes in the dark. We know that certain drugs will dilate and certain drugs will constrict pupils. That is what we look for in those tests. There are three lighting conditions we look at: room light, near total darkness and direct light.
Next, we look at signs of ingestion. We will look in the nose and mouth for powders, residue and even chewing, to lead us to the category of drugs that could be causing impairment in the person.
We check for injection sites — only the arms and neck, things that are visible. We check for that because many people inject drugs in their neck and arms.
We talk to the person. At the end we ask them: ``Are you using drugs? If you are using drugs, what drugs are you using and when did you use them?'' With many of the people we deal with in the classification program, by this point, we have a rapport with the person and they will be honest and tell us what he or she is doing. Do we believe the person? We will use information towards the totality of reaching our decision.
We arrive at our opinion as drug recognition experts: ``In my opinion, as a drug recognition expert, ABC is impaired by the category of drug,'' and we name it, ``and unable to operate a motor vehicle safely.''
The last step is collecting a toxicological sample. At present, we collect urine samples. The process is not invasive and easy to get. It does not infringe on a person's privacy. They can pee in a jar for us, and we send it to the lab for confirmation of our drug call.
In terms of the drugs, we do not name specific drugs. We will not say methamphetamine, cocaine or cannabis. There are seven large categories of drugs, and they are all based on signs and symptomology. They all have the same signs and symptomology, so we can base our call on the category of drug, not a specific drug. It would be impossible to say someone is under the influence of Valium right now. In that case, we say, ``central nervous system depressants,'' which is the category that drug falls into.
That is the 12-step process. With respect to the total time for required, I have been practicing DRE since 2003, and I can do the entire evaluation in 30 to 35 minutes. It is very quick.
Senator Stratton: Can you describe what takes place for alcohol?
Mr. Prokopanko: The beginning is much the same. The vehicle has to be stopped and pulled over. There is generally the conversation or the evaluation by the peace officer at the side of the road. If we do not already have the driving evidence, gross driving evidence is pretty simple. The individual is generally invited to step out of the car. Questions can be asked at the time, for example, ``Have you had anything to drink tonight?'' That type of interview can get things started. We rely to a certain extent on our internal sensors to be able to detect odours of alcohol. We find alcohol so much more prevalent and more obvious to peace officers. We count on the recognition of the general signs of impairment or intoxication.
When an evaluation is done by a peace officer at the roadside, if there are obvious signs of impairment or intoxication, the officer has the authority in the Criminal Code to make a demand directly for an approved instrument, in which case the person is placed under arrest, taken back to a testing location and breath tests are conducted. If there is not enough information or evidence for the peace officer to make up his or her mind at the roadside, we have the authority to make a demand for an approved screening device, generally conducted at the roadside.
Results of that nature can lead the peace officer to a conclusion that a person's blood alcohol level exceeds 80 milligrams per cent, again, serving as the authority to make the demand and invite the person back for a breath test at the detachment.
Senator Campbell: Certainly, there can be no doubt that everyone on this committee wants to stop the carnage on the road as a result of impairment. In particular with respect to the DRE, one of the documents we have, a survey of scientific literature by the United States National Highway Traffic Safety Administration on DRE, states the following:
The study indicated that the DREs' ability to distinguish between subjects who were impaired and subjects who were not impaired was, in the words of the authors, ``moderate at best.'' The DREs' ability to identify the drug class causing the impairment varied from ``moderate'' (for alprazolam) to ``lower'' (for cannabis and codeine) to ``not better than chance'' (for amphetamine).
Yet, when I look at the statement by the government officials, they said that the DRE accuracy rates are around 96 per cent.
Is the U.S. study an old study, and is this a new study? How do we get this divergence?
Sgt. Martin: The American study is older. We are now engaged with the Canadian Centre on Substance Abuse to do studies for us, and our accuracy rate for our DREs is 98.4 per cent correct calls. I was told that in meeting with them this morning.
Senator Campbell: Do you confirm that by way of toxicology?
Sgt. Martin: Yes.
Senator Campbell: You do the DRE, then you do the toxicology and you classify in one of the seven; is that correct?
Sgt. Martin: Yes.
Senator Campbell: What happens if it comes back something other than the one in seven that you chose?
Sgt. Martin: One in seven that we chose?
Senator Campbell: You choose amphetamines and it comes back as cocaine.
Sgt. Martin: Amphetamines and cocaine fall under the same category, central nervous system stimulants.
If I called it a central nervous system stimulant and it came back as narcotic analgesic, we would ask the lab why it came back that way.
The human body is a wonderful machine. It likes to achieve a balance, homeostasis. It releases its own natural hormones to try to get back into a state of norm. If we catch the person at the end of his high and the stimulants in his body have released all of these natural endomorphins to bring him back down, you might see that, where the person is no longer stimulated. The call is narcotic analgesics, so he is trying to bring his body down. We ask the lab to explain that for us.
Senator Campbell: Would he still be charged?
Sgt. Martin: Depending on how his driving was at the time, and can the lab explain it. I have never run into the situation in the jurisdiction where I work where we have had tests come back. I know that we have had calls come back that were wrong and the person was not charged.
Senator Campbell: Mr. Prokopanko, will the period of time between the first blow and the second blow changed in this bill? I read three minutes.
Mr. Prokopanko: The Criminal Code currently requires a period of no less than 15 minutes between two breath samples. There was a proposal at one time to reduce that time period. The Alcohol Test Committee specifically objected to that requirement. There are scientific reasons for having an observation period. One is to eliminate potential mouth alcohol inference from burps or such things. The observation period allows us to have more confidence in the quality of the sample being analyzed. This bill does not change that. It leaves the interval at 15 minutes.
Senator Campbell: I read here that the regulations accompanying the new legislation would describe the nature of the qualifications and training for drug evaluation officers, physical coordination and screening tests proposed at the roadside, and tests to be conducted during the evaluation, presumably at the police station. Would it be of any benefit to you to be included in this bill or to have that regulation formulated now rather than in the future? Would it be of any assistance to, for instance, the DRE officers?
Sgt. Martin: I have read some correspondence from the government on the regulations with the tests described in them. I sent them to my boss. I do not know where they currently are, and I cannot comment on that. However, the tests have already been written as the regulations are going to be.
Senator Merchant: Thank you very much, and welcome.
I would like to discuss the difference between alcohol impairment and drug impairment from the points of view of the police and of persons to potentially be charged.
You stated that you have been doing alcohol impairment tests for 30 years. Nearly everyone understands that the police can recognize signs of alcohol impairment, and impaired persons know that they have been drinking.
However, I do not know that the police are trained to recognize drug impairment. When the police stop a person who has been involved in an accident, for example, the police can demand that the person take a drug test. However, the officer has no way of knowing in advance that the person might be impaired by a drug. The person who has been stopped knows whether he or she has taken any drugs. In addition, the definition of ``drugs'' is not specific, and it can include a variety of drugs. Therefore, the circumstances with drugs are different than they are with alcohol.
The person of whom the demand is made may decide not to take the test if they know they have not taken any drugs. As is the case with alcohol impairment, they would be required to take the test. In such a case, would they be charged and sent to jail?
Sgt. Martin: The dictionary definition of ``impairment'' is ``to make worse.'' We have all seen people who drive poorly. The officer must have reasonable grounds to believe that the person is impaired by a substance and is not simply a bad driver. He can determine that by questioning the person.
People impaired by alcohol and drugs display certain things. Their eyes are watery and their speech is slurred. There are key indicators that officers learn to detect during their training. If a person is simply a bad driver, an officer can determine that quickly simply by talking to the person.
When people are impaired, they drive in ways that normal drivers do not. In the case of head injury, the officer will have to question further to find out the cause of the problem.
Drug impairment and alcohol impairment are not that different. There is still poor driving, swerving, erratic speeds, fumbling with paperwork and inability to form sentences. Officers receive training in recognition of impairment at police colleges in Ontario as well as at the RCMP academy, and it is evident to them. If people not using drugs, an officer need only ask what is wrong, what is going on.
There are bad drivers out there. In my career as a traffic officer, I stopped many drivers who I quickly realized were not impaired but simply poor drivers. To screen that out, we talk to people. Part of our law enforcement job is to get to the root of the problem. With a quick conversation you will find out if a person simply has bad driving skills. They can then be issued a warning or a ticket at the discretion of the officer.
In some cases, DREs have been invoked with people who have medical problems. Some head injuries will mimic impairment. I know of a case where a person was brought in after a pursuit during which she had to be boxed in. The DRE spent two minutes with her before he called an ambulance. She had fallen earlier in the day and received a head injury. After his preliminary examination, he called an ambulance. There was no further law enforcement action taken. She went into the medical system and got proper treatment.
When an officer brings a person in, we want to know whether the person is truly impaired by something and does not have a medical condition. We do not want to keep people in our cells if they need help from EMS.
Impairment from alcohol and various drugs will look somewhat different, but impairment is, by definition, ``to make worse,'' and officers can usually recognize it.
Senator Merchant: Thus do you believe that all police officers are able to tell if a person is impaired?
Sgt. Martin: I cannot speak for all police officers, but the ones I know can tell. Many jurisdictions in Ontario now offer enhanced training on drug impairment because this issue is becoming more predominant. As we train more drug recognition experts, we find more drug-impaired drivers. We are now providing that training to other agencies in addition to the training they received at RCMP Depot or the Canadian Police College.
Senator Cowan: Welcome, gentlemen. I take it you support the proposals contained in Bill C-2 in the areas you are dealing with.
Mr. Prokopanko: I do.
Senator Cowan: The Canadian Bar Association has raised some concerns about these amendments vis-à-vis the Charter. To summarize, the view is that the Charter boundaries are fairly well known with respect to the current law and we must be careful to ensure that we are making significant and worthwhile changes rather than simply incremental changes, because if we are not careful we may raise a host of opportunities for Charter challenges that would complicate your lives and clog up the courts.
I would like your views on whether you think the fears of the Canadian Bar Association are justified. Are you convinced that these improvements which you support are worthwhile, even if you do agree that there is a possibility that it may become a useful make-work project for lawyers and courts?
Mr. Prokopanko: I will start on that. I must be careful. I have a ``no comment'' from the Alcohol Test Committee in that our role in support of the Department of Justice Canada is primarily in the scientific sphere.
To comment on whether or not it is necessary or worthwhile for some of the changes that affect Charter rights and the implementation of penalties and things of that nature, honestly the Alcohol Test Committee will step back and say that is the legislators' responsibility, not ours.
However, I will identify — if I can turn my RCMP hat forward — frustration. If you think our life is not already complicated with Charter challenges and frustrations in court, will this really make it worse? I think the proposals were quite the opposite. They were supposed to try to improve the flow of these cases through court. I can tell you there is real and honest frustration with peace officers. I will admit that, as a forensic scientist where we do everything correctly, we follow a very rigid control and specific operation procedure, document, everything is done properly, on approved instruments that are proven to be working properly at the time and everything is done the way it should be. All it takes is for someone to come into court and say, ``I only had two beer,'' and all that work is, in essence, ignored because they say it with a straight face and the judge is in no position to question or challenge it.
It is a difficult decision at that end. I turn to a peace officer and say, ``You did the right thing. You did well.'' Those are the frustrations we see in the existing legislation. I believe, in part, some of the changes here were to try to address some of those free challenges where it only took a simple statement by the accused in order to turn the tide or the balance of all the work they have done in order prove impairment, intoxication or blood-alcohol concentration. That is a real frustration.
I support the changes in that it attempts to try and correct an imbalance, but I fear there will be much more work — if not on my end then certainly by the peace officer at the detachment end — to answer some of the questions that will arise from these Charter challenges.
Yes, the headaches are not over. This does not cure everything. There is much more work involved here, but I think it is a step in the right direction.
Sgt. Martin: If you look at Martin's Criminal Code, there are 62 pages on impaired driving and 19 on murder. Impaired driving is obviously challenged by the Charter every day because it affects many people in our communities.
In terms of the bills, will they make our roads safer? Yes. Is it my forte to decide Charter issues and what the Supreme Court of Canada decides and so on? I do not think it is for me to say, but it will make our job as law enforcement officers much easier to get our drug-impaired drivers off the roads and potentially save lives in our country. Anything that does that and makes our roads safer — the roads that everyone's family in this room uses — is of benefit to all Canadians.
The Charter will be challenged, as it is on every piece of legislation that comes down the pipe, especially on impaired driving. Will there be huge challenges? I cannot predict. Unfortunately, I do not have a crystal ball to say that. However, there will be Charter challenges to everything we do. As soon as we change something in law enforcement the people of the defence bar will change their tactics and bring in new challenges to us.
It is frustrating. As Mr. Prokopanko mentioned, when you do everything correctly and the person comes out and says ``I had two beers,'' and you lose the case, there is frustration but we still have to do our jobs.
Senator Cowan: That is why we have judges.
Sgt. Martin: Yes. Our job is to get those people off the road and keep our roads safe from drug and alcohol- impaired drivers.
Senator Cowan: Unfortunately, I have no direct experience with your field, but at what point do you read the person his or her rights? Is it at the point you intend to make an arrest? Is that the point?
Sgt. Martin: As soon as we place someone under arrest we give them their rights. They have the right to counsel, a lawyer, and so on. In our jurisdiction they are given their rights three times.
Senator Cowan: When you were describing the 12 points to Senator Stratton, does that take place at the end of or during that process?
Sgt. Martin: Once a person is placed under arrest, in my jurisdiction, he will get his rights.
Senator Cowan: You go through this whole litany of tests?
Sgt. Martin: That is right.
Senator Cowan: Is it at that point when you say you have enough to make an arrest?
Sgt. Martin: If a person is brought in to a drug recognition expert, he has already been placed under arrest for impaired driving. He will have his rights long before the DRE gets involved. The officer who places him under arrest and forms reasonable grounds that he is under the influence of a substance will give him his rights.
Senator Cowan: Is that the point with respect to alcohol and drugs?
Sgt. Martin: Yes.
Senator Oliver: I would like you to feel that the provisions in this act are good provisions because they will assist in fighting violent crime and in getting drivers off the road who kill and maim. I think that is good, and I agree with you, too.
I have three questions. First, you said in your 12 points that you now use a urine test and not a blood test. I would have thought that blood would be more scientific and give more scientific results. Why is it that you are only using urine now and not blood for your testing?
Second, you said that you can perform this test in 30 or 35 minutes. Many of the things you do are subjective, like looking in someone's nostrils, in their eyes and watching the way they walk and listening to the way they talk. Do you have corroboration? Is that built into your guidelines now that you must not do that by yourself because someone can always say, ``My eyes were not enlarged,'' or, ``There was nothing in my nose; you put it there''? Do you have corroboration and someone else with you when you do these subjective tests?
Third, there has been a significant amount of concern about how scientific the proof is that you are getting. Is there a scientific consensus about a recognized threshold of various drug concentrations constituting impairment?
Sgt. Martin: I will deal with the blood question first. We do not use blood testing because the process is very intrusive. We have no phlebotomist trained in the law enforcement community in Canada.
Senator Oliver: You have no one, you say?
Sgt. Martin: We do not have any law enforcement officers — it is not like in the United States where they train police officers to draw blood samples in the jails. We would have to take the person from a secure facility to a doctor who can say ``no,'' under section 257 of the code, he will not draw blood samples for us.
Blood is very intrusive. We are sticking a needle into someone's arm who has voluntarily agreed to do our test for us. We are now getting into another level of intrusiveness; into a person's body and taking a blood sample. Urine is very easy; we do not have to move the person and we are not into the intrusiveness of drawing blood.
We have been told by Crown counsel to avoid attempting to get blood until we have legislation passed that gives us that demand with a choice. Urine is simple. The person is consenting; he is doing our test after we tell him all his rights to counsel and the consequences of the tests.
Senator Oliver: If you had that legislation now, would the results from blood be better than the results from urine?
Sgt. Martin: Yes.
Senator Oliver: That was my question.
Sgt. Martin: Second, whether we have someone with us, in my jurisdiction we have someone who stays with us during the test.
Senator Oliver: Throughout the whole thing?
Sgt. Martin: Yes. Another person is trained in DRE. They are there as a safety officer because we do not use any use-of-force equipment while dealing with these people because we are close and personal. We are touching them, taking their blood pressure and pulse; we are tight with them.
In some jurisdictions covered by the RCMP you only have one or two people working at a time. If you draw both people into the station to watch a test, you are taking a valuable resource off the road in that community for 30 or 35 minutes, which is probably not acceptable to many communities.
Most of the time one person does the test; he records what he sees. He is trained to record exactly what he sees. He is honest in what he does because he is watched by instructors doing 12 tests before he is certified. He is able to interpret properly. The final DRE exam to become certified runs from four to seven hours and is taken up by two instructors to ensure the job is done properly. There are checks and balances. We are not just training people and sending them out. We do an academic portion of the course, and then we go out into the field and do 12 tests on people actually under the influence of drugs. The person performs a full evaluation. We will get a sample that must be corroborated by a lab that it is correct, and then he takes the final exam. The whole time he is completing those 12 tests, he is observed by two instructors to ensure he is doing them correctly.
In terms of their subjectiveness, they are trained to perform properly and on what to look for. In many areas, we do not have the availability of two people observing one test. Unfortunately, our staffing levels are not to the level where we can have two people in their cars at all times across the country.
In our jurisdiction, we have people watching, but they do not provide much corroborative evidence. They are there for safety purposes. For eye exams you are very close to a person. Someone would have to stand over your shoulder in order to corroborate what you are saying. Unfortunately, that does not happen.
The next question is with respect to reliability.
Mr. Prokopanko: Reliability on drugs or alcohol? I will leave the drugs to Sgt. Martin. Scientific studies have been done.
Senator Oliver: Are they universally accepted? Is there an agreement?
Sgt. Martin: I do not think there is a current agreement on a threshold level for drugs in terms of impairment. Each drug is different and affects people differently. Some studies say even a bit of LSD in your system impairs you, and then the other side talks about what is acceptable for cannabis.
There is talk about threshold limits. The way we see it, if you cannot have it in your pocket in the country, what gives you the right to have it in your system while driving a car? In terms of that, there are no thresholds for us to look at.
We must have the impairment first. The person is arrested for impairment before we get involved in the DRE system. Something is causing the person's ability to operate a motor vehicle safely to be affected. That is when the DRE becomes involved, and the determination must be made whether it is a medical rule-out or the drug causing the problem.
There is nothing in terms of agreement for thresholds of certain categories of drugs that these levels will cause impairment.
Senator Oliver: Is there a scientific test to tell you what will make a person impaired?
Sgt. Martin: Not that I am currently aware of, no.
Mr. Prokopanko: Even in the case of alcohol, there are a wide variety of opinions on where or when impairment occurs.
If I may go back a step to provide my definition of impairment — and I have taught this more than once over 31 years — it is a deterioration of attention, comprehension, judgment, loss of fine coordination and control to such an extent as to make the operation of a motor vehicle unsafe. There is a pretty broad scheme there. The term ``impairment'' is not necessarily weaving all over the road, falling down or not being able to stand or walk.
Senator Oliver: Not being able to touch your nose.
Mr. Prokopanko: That is right, although that is a good one sometimes.
With respect to ``impairment,'' we tossed the term out. Everyone uses the phrase ``I am not impaired.'' I find that to be interesting because ``impairment'' to me in the scientific world is quite a specific term, which is the deterioration of attention, comprehension and judgment. You do not always outwardly see that. It does need to be drawn out.
This is the value of some of the tests being done. It is not just waiting for someone to pour themselves out of the car. For those people it is difficult to come to the conclusion ``I think you are impaired.'' We ask questions and spend time with them. We give them an opportunity to get over that adrenalin rush with the lights in the rear view mirror and the uniform at the side of the road. When they get a chance to relax with a peace officer and answer some questions, that is when the sloppiness tends to come out.
Not everyone has red, bloodshot and glassy eyes, slurred speech and unsteadiness on their feet. I think every impaired driving case should start with, ``Your Honour, I observed the first four signs; now here is what I really observed.'' The observation for impairment is, to a large extent, quite subjective. It is about asking questions and getting an appropriate response.
Drunk drivers are easy to find. They come to us. They are already in the ditch and have had the collision. Impaired drivers are difficult to determine and, for a peace officer, it is difficult to get that point across. They tend to develop recognition of what the average individual looks like, and impaired people take a bit more work to develop.
In my opinion, everyone is impaired with respect to the safe operation of a motor vehicle — I have said this in court more than once — at 100 milligrams per cent or greater, although I do not doubt and will agree that I can demonstrate impairment at levels as low as 50 or 40 milligrams per cent on certain specific tasks.
You will find a variety of opinions on where impairment really belongs, either in alcohol or in drugs. You will not get everyone to universally agree to a certain amount being unacceptable. It is subjective to some extent.
Senator Di Nino: Senator Oliver's exchange with you covered many of the points that I wanted to talk about, but there is one that I still have an interest in.
All of this is obviously subject to the quality of the men and women who administer these tests and who try to keep impaired drivers off the roads.
Sgt. Martin, I think you said that the process starts by specially selecting people and specially training them. I would have more comfort if you could explain to us what ``special selection'' and ``training'' really means.
Sgt. Martin: We are looking for someone who has an interest and a passion for impaired driving enforcement; that is, the people who will go out and consecutively look for the people who are impaired on our highways. Most of our traffic officers are those people. Currently, we are looking at people with those basic attributes, people who want to go out and arrest impaired drivers. There is no point to training people who will not do anything or will only answer radio calls on the road, go back and forth but never stop an impaired driver. The people we want to train are those who are doing the enforcement and stopping impaired drivers. That is what we look for.
Senator Di Nino: I would have thought that all police officers and peace officers would be interested in achieving those kinds of results. Are you saying that there are some whose talents would be great in that area?
Sgt. Martin: I think every police officer shares that goal, but every police officer is not in a position where they have either the opportunity or the time to answer their radio calls plus do all the enforcement for impaired driving. That is why we have traffic enforcement sections in most of the large major police forces that strictly do traffic enforcement and investigations of impaired driving and drug impaired driving offences.
In the York region, most of our south end is built up and busy. Our front line officers usually do a 12-hour day and answer radio calls the whole time. They are swamped with radio calls. They go from call to call in order to deal with calls for service. That is our primary response. People call the police and they expect them to come and deal with that call.
Our traffic enforcement officers have more freedom where their job is to enforce the traffic laws of the Province of Ontario and the Criminal Code. They will go out, enforce the laws and look for impaired drivers. They have the training above and beyond to recognize if something needs further investigation. They have the training in what drug impairment and alcohol impairment looks like. They have taken the Intoxilyzer courses and field sobriety testing courses. They have the training above and beyond before they move into the Drug Recognition Expert program. They must be proven performers on impaired driving.
We have kept that as a national standard. We tell people that we are looking for officers with a high interest and knowledge in our traffic laws in relation to impaired driving, and we ask police forces to send us those people. We consistently get people who have a passion for keeping our roads safe.
Senator Di Nino: I have a few more questions on the training end of it. You have touched on this a few times, but can you focus on the training, including national standards? Is the training conducted regionally, provincially or nationally? Are the standards set by the police community across the country? Could you enlighten us on all of that?
Sgt. Martin: The standards we deal with on the Drug Evaluation and Classification Program are set by the International Association of Chiefs of Police. They have a DRE section that sets the standard that we follow as a country, as well as in the United States and England.
With respect to the training, the people are selected. It is completed nationally. I am running a course at the Ontario Police College, then I will be conducting a couple of standardized field sobriety courses and then we will be going to Newfoundland and Labrador to run a course for the Royal Newfoundland Constabulary. When we are finished there, we are heading out to British Columbia to run a course for the RCMP. We run these courses nationally back and forth across the country, and everyone gets the same training.
There is a two-week academic portion where people learn about drugs, what they are and what they do to the body. We talk about physiology and various things. They must pass that course with a minimum score of 80 per cent on the final exam. There are six quizzes, and they have to be proficient in the battery of tests they will perform before they move out of the academic portion.
Once we do that, we move to the practical portion where evaluations are done on 12 subjects under the influence of a drug. We have used volunteers and taken people to Arizona with a much larger base to draw from. The evaluation is paid for by the national program to get them certified. They must make their calls and be correct in them. While they are doing these tests, they are observed by two instructors who watch them to ensure they are doing the test properly, and they are critiqued after each and every one. We have had instances where we will not sign off on the evaluation as proficient. The person must keep practicing. We lose people during this process. They do not want to do it; they are not proficient in the skills; they do drop out. That is unfortunate but that happens. We cannot have a substandard person going through, especially when dealing with subjective tests.
Once they have finished that, they must submit a resumé for approval about what they are doing. They then do the final knowledge exam, which runs between four to seven hours, which is all essay style, and they write. We give them questions such as: Tell us about hallucinogens and alcohol. If these two drug categories are together, what are you going to see as a drug recognition expert? It takes quite a while to write. It is taken up with the person. If they pass, we will gather up their package and send it off to the international association for accreditation. They are accredited as a DRE, which is good for two years. Every DRE in this country must recertify every two years to show he is proficient and do an evaluation in front of an instructor to show his skills are still there and he can still categorize and perform the tests properly.
Senator Andreychuk: I have a follow-up question on impairment before you go to alcohol.
Am I correct that, once we started to identify the problem of drinking and driving, we then went to try to find some solution beyond the generic section we have in the Criminal Code on impaired driving? You had to go through these physical tests, and there are many defences such as ``I cannot do the test; you did not do it properly.'' We then developed the Breathalyzer. We have put the line of the charge on a Breathalyzer. We still have the impaired driving section and we have the Breathalyzer. We are simply saying: ``If you have that much blood alcohol in your system, you will be convicted.'' It does not matter if you are ``impaired'' or not.
My understanding is we do not have a separate stand-alone drug impairment capability. You have to go through the impairment test first to get to the point that you will discover whether the person was impaired by alcohol, drugs or something else we have not thought of. Is that where we are at?
Sgt. Martin: If we are talking about straight alcohol impairment at the side of the road, the person will follow the alcohol stream. We have the Intoxilyzers at two tests, 17 minutes apart. We will go into that stream. If he is brought in for the DRE test, the reason we do the first step, the breath alcohol test, is to determine if we are dealing with alcohol. For some people who drink, there is a slight odour. The officer may be confused and thinking it is drugs but it turns out to be alcohol. We can break off there, if it is alcohol, into the alcohol stream.
For drugs, I think you are getting at the threshold charges where you are looking at the over 80 limit, if I am not mistaken, ma'am.
Senator Andreychuk: No. The point is, if you do not have a system for knowing you have a certain amount of drugs in your system you will automatically be charged and convicted, as we say, if you have a certain amount of alcohol. Of course there are some reasonable defences, but we do not have that kind of test for drugs yet.
Sgt. Martin: We do not have that kind of test yet, no, senator.
Senator Andreychuk: That is what I was getting at.
The other question raised by some of the senators here, if not witnesses, was the issue of prescription drugs. Can you enlighten us more about how you look at those? If the person is so impaired that they cannot translate to you that they are on a prescription drug, what do you do then? If they have it, I presume you will think that is the drug that is impairing them and they have some legitimate use for it, so you will take that into account. However, what if they are so impaired that they are not making sense and they are not carrying the drugs on them?
Sgt. Martin: We will use the DRE evaluation. For those purposes, he has already been arrested for impaired driving. Our Criminal Code says ``drug,'' not ``illegal,'' or ``illegal drug.'' If the person is using his prescription and reading the warning labels on the bottles and listening to his doctor and using therapeutic doses, if he is using it the way he is supposed to, he will probably never run into a drug recognition expert. I have people working in my section who use prescription drugs who are not impaired when they are operating their motor vehicles. They use them every day. They have issues they have to use the drugs for. It is when you get into situations where people use them more than they are prescribed because they to want feel better that they are using it outside the norms. They are not reading the warning labels.
I look my 10-year-old to the doctor before I came to Ottawa, and on her prescription bottle from Shopper's Drug Mart, it warns her not to operate a motor vehicle or if you use these drugs please do not operate a motor vehicle with it. She will not drive, so that is good.
However, if they read the packages, the warning is already there. We put stickers on bottles. We put warning labels on liquor bottles, but people still drink and drive. If they heed the warnings and use their prescription drugs as they are supposed to, they will never run into us because they will not be showing gross signs of impairment when they are driving a motor vehicle. When people overprescribe or ignore the warnings or start mixing and matching alcohol with their drugs they will start running into the DRE situation.
When we had a prescription drugs case go through our jurisdiction in York region, the person who was told to take one pill unfortunately took four because he wanted to feel better sooner. He was then into an impairment situation driving his motor vehicle. It was not gross impairment. He was actually driving on a sidewalk. That was a problem for us.
Senator Andreychuk: Basically, the bottom line is, if you are in care and control of a vehicle, you have a responsibility to drive appropriately and take other steps.
Sgt. Martin: Yes.
Senator Andreychuk: We went through those defences, for example, ``I did not know there was alcohol in my Coke.'' That may or may not be a defence. It depends on the situation and that is for the judge to evaluate. The bottom line is you have a responsibility to drive carefully and we do not want impaired drivers on the road.
Sgt. Martin: That is right. In Ontario, under the Highway Traffic Act, driving is a privilege given to you by the government. You have certain responsibilities to maintain that privilege. One of them is driving sober. You owe it to the other road users to drive sober so you are not a danger to them and to yourself driving on the roads. If you are going to use prescription drugs, read the warnings. They are in bright orange on the front of all the bottles you get. You cannot miss them if you are opening a prescription bottle. Doctors explain side effects. If you read those manifests you gets from the pharmacies nowadays, they will tell you what not to mix and match with your drugs. If people took those steps, there would be no problem on the roads. It is when people want to feel better faster that they start overmedicating themselves to feel good.
There are cases where people will take whole bottles of pills because they want to feel better quicker to get back into normal functioning society. Unfortunately, that leads them into conflict with us because they are driving impaired under the Criminal Code. Our Criminal Code right now just says ``drug.''
Senator Andreychuk: You said, ``failure to be responsible to other drivers.'' I would extend that to everyone because pedestrians are often victims.
Sgt. Martin: Yes.
[Translation]
Senator Chaput: Here is my understanding: At present, if you stop someone for what you believe is drug-impaired driving, you can suggest that he take a test, but he is not forced to do so. The bill would force that individual to pass a test if you believe he is drug-impaired.
Based on your experience, what percentage of drivers are presently driving while drug-impaired? Of that percentage, do you have an idea of the percentage of accidents that might be caused due to drug-impaired driving?
[English]
Sgt. Martin: To answer your question, yes. If we stop someone suspected of impaired driving, it is not mandatory that they comply with the test. We can ask them to take the test, and if they refuse that is fine.
There have been studies done about people driving under the influence. One was done in Quebec, and they attributed alcohol and other drugs to fatally injured drivers. A study in 2002, determined that 30.2 per cent of fatally injured drivers had drugs in their system. A similar study from British Columbia in the early 1990s put the drug limit around 20 per cent. These are fatally injured drivers who have been killed in collisions and have been checked for drugs; and they are finding 20 to 30 per cent test positive for drugs.
In terms of drug users, looking at the Ontario drug use survey, approximately 20 per cent of those aged 16 to 19 years old say they have driven within one hour of using cannabis. The Manitoba student drug use survey puts that figure at about 19 per cent. That is a substantial number of people.
I cannot tell you how many accidents have been caused. However, looking at that number of fatalities, if 30 per cent of those fatally injured drivers had drugs in their system, that is a substantial number of people using and driving.
[Translation]
Senator Chaput: Would it not be simpler to impose what we call zero tolerance? If you drive, you do not drink or take drugs.
[English]
Sgt. Martin: If we have zero tolerance but for people using therapeutic drugs — those who have the drugs in their system but are not impaired — that would still make them criminals under a zero tolerance bill. We would be criminalizing someone using their drugs properly, who are not breaking any impaired driving laws but still have the drugs in their system above their threshold level of zero.
[Translation]
Senator Chaput: Then what would the solution be for people who are taking drugs? If you cannot determine the substances absorbed, if you cannot make a distinction between prescription drugs and illicit drugs, then we have a dilemma.
[English]
Sgt. Martin: In terms of a solution, if people use their prescription drugs therapeutically, they will not be impaired. They will not run into a drug recognition officer. If they are using prescription drugs the way they are directed by their doctors, have read the warnings and are using them in therapeutic doses in accordance with what they are told, they will not be impaired to operate a motor vehicle. It is people who abuse and use illegal drugs who fall into conflict with law enforcement. They are hazards on the road because they are using illegal drugs or are abusing prescription drugs while they drive.
The Chair: Ultimately, under this bill, it all comes down to the reliability of the tests. I do not mean the 12-step, touch-your-nose-with-your finger test or whatever, but the ultimate toxicological tests, Breathalyzer tests or whatever. That is really important, because under this bill the only defence allowed is for the accused to prove that the equipment was malfunctioning.
I have two areas that I would like you to enlighten us on. First, how can we be sure that the machines are always and everywhere accurate? Everyone is aware of false positives and, indeed, false negatives that turn up in all kinds of medical situations; not every day, but it happens, and we all know people to whom it has happened. We are all familiar with highly complex pieces of equipment that fail on occasion.
Since we are pinning absolutely everything on the accuracy of these tests, how can we be so sure of their accuracy?
Mr. Prokopanko: Let me jump in on the alcohol side first. I am not quite sure that the changes in the bill eliminate other defences. That is, I do not see that there is only one defence to impaired drivers if this bill is passed. The existing schemes probably will still exist, albeit tougher to get through. There are three additional hoops that I believe this bill makes an accused jump through in order to, as you say, prove where the problem is.
As a forensic scientist, I really like that, because we have gone through what I think of as many more hoops to ensure that the equipment being used is suitable, reliable, accurate and technically approved by the Criminal Code before it ever gets into the scheme of being used for Criminal Code investigation. It is not like you go down to Costco and pick up Fred's breath-testing equipment. It goes through a great deal of evaluation prior to being included and recognized by the Criminal Code as an approved instrument or an approved screening device.
The Alcohol Test Committee is the group that does that evaluation. We already have a great deal of comfort and knowledge about the equipment before it is put in place. There are a number of safeguards or checks done with every single breath test, every single procedure, that we feel demonstrates that the equipment is in proper working order and that the test is accurate and reliable. They include regimented and strict procedures that a qualified technician must follow in order to perform a proper breath test.
To return to the earlier question about training, it is not just any peace officer who does a breath test. In order to perform a breath test in Canada, you have to be designated by the Attorney General of that province. In order to get that designation, you have to successfully complete a training program. The training program is outlined in the recommended standards of the Alcohol Test Committee. We recommend classroom, background knowledge in addition to hands-on, practical testing. At present, the recommendation is 40 hours of training. Many programs in the States cannot believe that we spend that much time training people, but we do. These are not just people who push buttons. We give them a great deal of background and knowledge before we let them get into the sphere of breath testing.
The equipment, especially what we use nowadays and the next generation of equipment, is primarily microprocessor controlled, which has good and bad points. The approach in Breathalyzer days was quite mechanical. I long for Breathalyzer days because you had control of the equipment and you had to do everything. The uncomfortable part was that perhaps an accused felt that if that peace officer controls that breath test, he would like it to be automated so that the peace officer cannot control his breath test.
We introduced automated equipment, microprocessors and computers that run it. Computers are dumb. They only know what you tell them. We set up criteria that they have to meet. Many of those criteria are our fail-safes. We set specific levels for internal and external standard checks. We have them do diagnostic checks. It has to check the air — we call these blank tests — to ensure there is nothing in the room that will produce a false positive result. We ensure that the sample chamber where the breath sample is blown into is clean both before and after a breath test. These procedures are now programmed into the way the equipment works automatically. It is nice when the equipment works perfectly, but when it has a hiccup or makes a mistake, it always aborts and shuts down. Unfortunately, sometimes what it calls an error is not really an error; it is something that can be accounted for, yet it will still abort and shut down the breath test.
The Chair: How do you know if it has made a mistake? No computer I ever worked with says: ``Whoops, I, the computer, did something wrong.'' It is operator error, user error, input error. Everyone else but the computer is blamed, but things go wrong.
Mr. Prokopanko: Whatever the source of error, almost without exception it shuts down the breath test so that you will not be continuing with an incorrect instrument. I qualify that by saying not absolutely every single activity. Keep in mind that this is the bad part of relying on automated equipment; it is not just the instrument any longer. That is why we spend an extremely long time on our training process for the qualified technician to recognize and to troubleshoot those situations where the instrument did something; it was not supposed to do that; why did it do it? We try to expose the qualified technician to every circumstance he or she can run into to see what causes it, troubleshoot and figure out what needs to be done to eliminate it or to correct that situation, and learn the proper procedure and protocol to conduct a proper breath test.
Again, it is not just a reliance on the computer. There is a qualified technician who is responsible for not just pushing the button but evaluating the situation and dealing with the subject. There are some safeguards in our training where we train officers to recognize things other than impairment by ethyl alcohol, not to the degree of the drug recognition program, but to look for things other than regular basic liquor that people might have consumed and how they show up on the instrumentation and how to deal with those people as well.
The Chair: What about for drugs?
Sgt. Martin: For samples that we take from people who have been processed through the Drug Recognition Expert program, the samples are sent to accredited labs for analysis. The equipment they use at the labs, I cannot comment on. I am not a lab or forensic toxicologist. The samples are sealed and sent to the accredited labs that support law enforcement, the centre for forensic sciences, the crime lab in Montreal and the RCMP labs across the country, where they are analyzed.
The Chair: Understand me; I am not impugning the professionalism of everyone involved at every step of this chain. I am old enough to know that things go wrong. Sooner or later, if it can go wrong, it will go wrong. How do we know?
Mr. Prokopanko: That is why I want to point out this is not just a willy-nilly process. It is a very controlled, regimented and structured procedure we follow, documented at every step of the way. There are checks. I mentioned the terms internal standards and external standards. Most equipment nowadays has a means of internally checking its calibration or accuracy and the performance of the electronic circuits, in addition to our analytical protocol, requires a sample of a known alcohol concentration introduced with every single breath sample and we expect to get that target value, plus or minus the variability, before we do a breath test. We rely quite a bit on that test to demonstrate that it is in proper working order at the time.
We have annual maintenance and service requirements for all our breath test equipment; whether or not they break down, they go in annually for service to ensure as a preventative measure we do not run into these problems in the middle of tests. We have these checks built into the program, and outlined in the handout I provided, which are the recommend standards. Those are recommendations by the Alcohol Test Committee and, for the most part, fully accepted by programs all across Canada. Following the procedure, doing the steps properly, the tests are reliable.
The Chair: If I could come back to the accredited labs for a moment. Are you aware, sergeant, of any studies that have been done ever to assess the accuracy rate of results in circumstances like this?
Sgt. Martin: I have never read a study on that. I do not know if they exist or not. The other safeguard we have is when we send samples into the lab, in Ontario in particular, the samples are maintained and frozen and made available to defence counsel if they want them for their own analysis. We use our portion. A portion is kept and frozen. Specifically, two vials of blood are always taken. One is frozen and maintained and if defence counsel wants it they request it and they can have it for analysis by their own lab and their own people.
Mr. Prokopanko: As a forensic toxicologist and an analyst, at least in past years, let me point out that the forensic labs, not only the RCMP system but the centre in Toronto and the Montreal lab, are all accredited laboratories and not just for the DRE program. Our accreditation will give you the confidence you need that the samples that come in follow a regimented procedure of analysis. We are an accredited RCMP system by Standards Council of Canada. There are other accreditation agencies that look at our performance as forensic toxicologists and the laboratory results.
Senator Cowan: I would like to follow up on the questions that the chair asked about the changes, the elimination or restriction of defences. We talked earlier in our conversation about the two beers defence, which some of us probably used in a previous life, on behalf of others, sometimes successfully, but in my case mostly unsuccessfully.
Here, as I understand it, this bill would restrict that evidence to the contrary defence, which was the two beers defence, and say that you have to prove two things: You have to prove that the Breathalyzer was not functioning properly and the concentration of alcohol, et cetera.
This equipment is in the hands of the authorities and no one is impugning the integrity of the authorities, the professionalism, any of that; of course not. However, as the chair said, sometimes equipment does fail. If you were trying to mount a defence to one of these charges, how can you discharge that burden of proving that the equipment was malfunctioning, which is an essential part of the restricted defence? I think that is what the chair was trying to get at.
Mr. Prokopanko: You are asking that question with the assumption that it is malfunctioning and, of course, I am answering the question by saying that I have confidence not that it cannot malfunction, but if it does that that will show up in our test procedure and you will not have gotten to the point of accepting a breath sample.
That aside, in the changes post-Bill C-2, if it passes, there are three hoops that the defence is now being asked to jump through. In order to introduce evidence to the contrary, the three points that the defence has to introduce are that the equipment was malfunctioning or operated improperly; that the improper operation resulted in the accused's blood exceeding 80 milligrams per cent; and that the concentration of alcohol in the accused's blood would not have exceeded 80 milligrams per cent.
Senator Cowan: How do you prove the first point?
Mr. Prokopanko: That is what I alluded to earlier. These changes will put more pressure on the police, if not on me then on my detachment commanders, who will have to provide the maintenance and the service records and the performance records of this instrumentation. Ideally now we are getting electronic equipment so hopefully we can collect that information a little easier, but now there is a lot of paperwork that needs to be copied and disclosed in order to satisfy those questions, but I believe we can. We can demonstrate that the standard checks have been done, that they are done properly and are acceptable, that the service has been done; all this type of documentation can answer that question.
Senator Cowan: If one was to look for the maintenance and repair schedule of any particular machine, does the centre maintain those records at some central location that would be accessible to defence lawyers?
Mr. Prokopanko: In the case of Breathalyzers, I believe the centre is still doing the maintenance on Breathalyzers, but in the case of the Intoxilyzers, that has been farmed out to a third party. In the RCMP situation anyway, we have that sent back to the detachment where the instrument belongs, and that maintenance and service record is kept in a file at the detachment level in order to answer questions.
Senator Cowan: Is that accessible to anyone affected?
Mr. Prokopanko: On disclosure requests, all that information is provided already and it will be a lot of work, yes.
Senator Andreychuk: I want to follow up on one point from Senator Chaput's questioning. There will come a point when, if someone has severe medical conditions that require a number of drugs, those people simply will not be able to drive. My point is that if they are so much impaired by drugs to keep them alive, it is not a very satisfactory position for them but it is equally important not to have them on the road. Am I correct that that might be a scenario?
Sgt. Martin: Yes. There is reporting in place in Ontario where doctors can submit letters saying the person is unable to drive for whatever reason. It goes to the Ministry of Transportation for final judgment. The person has to come in for re-testing and evaluation. If the person is on drugs to keep him alive, it is highly unlikely he will be driving in the first place. He will probably be hospitalized or in a long-term care facility. Do we want such people on the road? If they are taking that many drugs just to maintain their status quo and keep them functioning day to day, they should be properly taken care of through the medical system and not operating motor vehicles. We have a duty to keep roads safe and to take care of them as well.
Senator Andreychuk: There comes a point where one could use drugs safely and drive. Equally, we have to understand that some people cannot drive.
Sgt. Martin: Some people will not be able to drive under the serious narcotic analgesics available to them. Some of the other ones that deal with pain may make them unable to operate motor vehicles safely. That is for their doctor who is prescribing the medication to recognize that the proper warnings are in place, and, if it is a long-term situation, to deal with the ministry in terms of driving privileges.
If persons are using prescription drugs therapeutically and there are no issues with their ability to operate a motor vehicle because they are using the drugs the way they are told to use them, it is unlikely they would ever run into a law- enforcement situation driving a car.
Senator Andreychuk: I made a decent living as a lawyer defending impaired driving cases. Would you not agree that when Breathalyzers were not around — they were talked about but they were not around in Canada in full use — the challenges were from defence counsel on behalf of the accused saying the machines did not work, how do we know they are properly maintained, et cetera. Many of your improvements and responses have come from the challenges, which is a good thing. There may be more and you may still have to improve. Is that what I am hearing from your testimony?
Mr. Prokopanko: Absolutely. A good part of our education in the evolution of a breath test program comes from issues, problems and mistakes made in the past.
You are right that when Breathalyzers were first introduced back in the late 1960s, there were a lot of challenges on instrumentation: ``You cannot rely on an instrument to convict this person.'' Those challenges were made on our procedures, the accuracy of the equipment and whether or not you could take a breath sample and tell someone's blood alcohol concentration. We fought those battles, probably even before my time, although I got involved in some of them 30 or 40 years ago when the equipment was new. I spent eight years in Saskatchewan, so I have gone through those challenges in Saskatchewan. We have learned from that.
Regarding the equipment we are using now, we have learned what problems could come up. How can we address those problems by building what we have learned into the protocol that we have in our computers now to address or answer those questions, eliminate them or recognize them right off the bat so you do not do a test if there are concerns about accuracy or whether it is working properly? Those have been built into the equipment, again, not just the computer to figure it out. There is a qualified technician to monitor each and every step. He or she ultimately decides in the end, and, much like a DRE, it is the totality of the test procedure, not just a number that gets spit out of the instrument on what the actual result is, that determines whether or not to proceed on charges.
Senator Stratton: In listening to Mr. Prokopanko, the interesting part is watching the evolution of the process. Alcohol testing since the 1960s has been an evolutionary thing. I expect the law has evolved as well. This is another step in that process, namely, to address, as Senator Cowan said, the two-beer defence.
We will likely be back in this process again, because we are just starting out on the drug impairment side of it. While this is a first step, we will have this challenged, as you have said. Is this really a defence for the two-beer approach, or what is it, in your view?
Mr. Prokopanko: I love to take advantage of opportunities to make presentations to the Crown, defence and judges. I made one in Manitoba recently. In fact, I would make an opportunity available to honourable senators to participate in the consumption of two beers. We will allow an opportunity for the alcohol to be absorbed, distributed, and we will do breath testing to give you an idea of how it works. I love doing that for judges to show them what two beers look like. It is quite colloquial: ``I only had two beers. I could not possibly be blowing 150.''
I absolutely agree. We work both sides of the fence. We are there to assist the courts. I have appeared on behalf of the defence to do calculations of the blood alcohol concentration based on a man of 180 pounds, drinking two bottles of beer. It is a simple calculation, and it will be 40 or 50 milligrams per cent. It is nowhere near 80 milligrams per cent, yet he blows 150. The implication is that there is something wrong with the breath test equipment. I have all the checks and balances and all the standards that are done to demonstrate that the equipment is in proper working order at the time of the test. We have done everything correctly. I will put a lot of weight behind that instrument result versus the self-serving statement from an accused who says he had only two bottles of beer. Do they have the same documentation that they had a beer at this or that time? They will tell you that.
Earlier, I believe Senator Merchant said people seem to know that they are impaired and the peace officer knows they are impaired. If only they would remember that when we get into court, it would make it so much easier, but no, they will say, ``I didn't feel that bad.'' These are subjective comments. When someone comes in and says, ``Well, I wasn't drunk,'' he or she probably was not sloppy, falling-down drunk. However, the question is not drunkenness. The Criminal Code identifies impairment.
If we go back to my earlier description, we are considering attention comprehension, judgment and mental faculties as opposed to the physical presentation. Can you have two beers and blow over 80? If you weigh about 40 pounds, maybe. That is where the calculation is. At 40, 50 pounds, a person could be over on two bottles of beer, but you have to be that small.
I was asked if I could bring some equipment, and I would have loved to have shown you the equipment, but it tends to be noisy and distracting. However, if you ever want to have a drinking session, I would be more than willing. We call those ``practical labs'' on the course.
The Chair: This is a chamber of sober second thought.
Mr. Prokopanko: That is why I find it unusual that the offer would be accepted, but I am quite willing to demonstrate two bottles of beer. I do not like to advertise to the general public, although we are probably on TV now, that it takes quite a bit to get to 80 milligrams per cent. When someone says, ``I cannot believe I got that high,'' the suggestion was made earlier that you know you do not feel quite the same way as when you were at zero. It is quite an education to see what 80 milligrams per cent feels like and to see how much it takes to get there. It is a real education. We have experienced peace officers, not many of whom are teetotallers, who take an awful lot to get up there. You have been through it. It is quite an eye-opener to see what 80 milligrams per cent feels like.
Senator Stratton: To protect myself, I do not think I should go any further. Thank you very much, gentlemen. I hope we do not see you back for quite a while.
The Chair: It is already an offence to refuse to take a Breathalyzer test. Under this bill, some of the penalties will be draconian. If you are guilty of impaired driving causing bodily harm or death, failing to take a test will bring you a sentence of 10 years, maybe even life, it you have caused death.
Is it standard practice now for police officers when they approach someone to ask them to breathe into this thing to tell them they will be committing an offence if they do not do so?
Mr. Prokopanko: I am not sure if I should pass it over to Sgt. Martin. The Alcohol Test Committee would back away from the draconian measures and the punishment side of things.
The Chair: I am asking about procedure. I am not asking you to comment on the level of the penalties. Obviously, from the point of view of the public interest, as soon as you start jacking up the penalties, the public's interest in being sure it understands how the procedure works grows. How does it work? Is it part of the standard protocol that you tell them they are legally obliged?
Mr. Prokopanko: I will preamble my response with what I teach on breath test courses. I point out that the Criminal Code authorizes a peace officer to make a demand. It is not a request or a negotiation along the lines of, ``If you are not too busy, would you mind coming down here and giving me a sample.'' It is a demand on reasonable, probable grounds to believe their ability to operate a motor vehicle is impaired. There is a standard, a requirement and an obligation on the peace officer to evaluate and, ultimately, justify that conclusion before the court.
It is not done simply on a whim, and it is not done on everyone. Certain points must be addressed before a demand is made. Once the demand is made, however, there is an obligation on the driver to answer the demand of the peace officer. It is a Criminal Code offence to fail to provide or to cooperate.
I wonder whether it can be considered a threat if, when someone refuses to blow, we threaten to charge them with a refusal. We do not deal with refusals up front. There is a procedure to deal with refusals, and Sergeant Martin will explain that. We start with having reasonable and probable grounds, having made a demand, and the presumption of an obligation to provide a sample of breath.
Sgt. Martin: We do warn them. We read the demand. If a person says he will not comply, we tell him the consequences of that. The same penalty applies for noncompliance as is applied for impaired driving. We read to the drivers all the possible consequences in order that they fully understand the consequences of their refusal.
The Chair: You have obviously been extremely frustrated by the fact that people who are impaired by drugs have been able to refuse tests. What proportion of people who are stopped and suspected of impairment by drugs refuse tests now?
Sgt. Martin: I can give you numbers from my jurisdiction only. In 2004, we conducted 13 tests with 5 refusals. In 2005, we conducted 8 tests and had 1 refusal. In 2006, we did 38 drug recognition expert tests with 12 refusals. In 2007, we did 40 drug recognition tests, and we had 17 refusals.
Refusals are starting to increase. We started with 13 tests, went down to 8, and are now at 40. We are growing slowly, and that is with 8 active drug recognition experts.
The Chair: Are the number of requests growing because you have more officers trained to focus on this, or is it because more people are driving impaired?
Sgt. Martin: We have more officers trained and looking. At recruit classes we talk about drug impairment. We talk to our front line people, who are more experienced and better understand drug recognition and the protocols. I believe that officers are simply recognizing more often that when there is something wrong with the driving and it is not due to alcohol impairment, it may be drug impairment, and they are bringing them in for that.
Senator Cowan: I am interested in the increasing number of refusals. What are the statistics on alcohol?
Mr. Prokopanko: I do not know, and I stay away from statistics because they get overwhelming at times. There is quite a lot more history of alcohol testing.
Senator Cowan: I expect that over time those would be declining.
Mr. Prokopanko: People commonly refuse to provide samples for certain reasons. When there is injury-caused death, people often refuse to provide blood or breath samples. It makes the defence more complicated, which is the way they want it. I am sorry; I do not have numbers.
The Chair: Thank you, gentlemen, very much for being here this afternoon. This was most informative. I will have to read all this material from Mr. Prokopanko about alcohol testing. It will undoubtedly mystify me until I have read it least three or four times. It was most helpful to hear from both of you. We are very grateful for the time you have been able to give to us today.
[Translation]
We now have two new witnesses. It is our pleasure to welcome Mr. Gary Mauser, professor at Simon Fraser University, as well as Ms. Line Beauchesne, professor at the University of Ottawa.
[English]
Senator Cowan: I was wondering if there was a written presentation.
The Chair: I believe that is available. I will ask the clerk to distribute it. We have it in both official languages, in fact.
Senator Cowan: Thank you.
[Translation]
You may make your opening statements one after the other, and then senators will proceed with questions.
Line Beauchesne, Professor, University of Ottawa, as an individual: Madam Chair, thank you for this invitation to appear before you today. Since the bill has changed names several times over the years, perhaps I do not have the right number, but everyone is well aware of what I am referring to.
My presentation begins with a case study that I give my students on impairment and that you have in the document. This case study will support my subsequent remarks.
In the first case, the accused is a well-to-do manufacturer and a very active father who has an excellent reputation in his community. After a particularly heavy week of work, he went to a wedding reception where he drank a considerable amount of alcohol. Having chosen to drive himself home, he fell asleep at the wheel and killed a person who was crossing the street. He had never had a drinking problem nor an accident caused by drunk driving, and his behaviour following the incident clearly showed remorse.
In the second case, the accused is a 79-year-old man living in the country. He has kept his car despite taking medication causing drowsiness and reduced reflexes due to age and his illness. Although his daughter had advised him not to drive because of his medication, he nevertheless decided to drive himself into the city to visit his wife in the hospital. He fell asleep at the wheel and killed a person who was crossing the street. He had never had a known problem of impaired driving in the past, and his behaviour after the incident clearly showed remorse.
In the third case, the accused is a 42-year-old social worker. After working his evening shift, he learned at the last minute that he had to replace a colleague on the night shift, because as usual, they were short of staff. When he left work the following morning, he had gone for 24 hours without sleeping. Because there was no public transportation, he decided to take his car to go home, as all his colleagues in similar situations do. While driving home, he fell asleep at the wheel and killed a person who was crossing the street. He had never had a problem with impaired driving in the past, despite the fact that this was not the first time the situation had occurred, as was the case with other colleagues. His behaviour after the accident clearly showed remorse.
The question that I ask my students is as follows: Since these are three similar cases where individuals knowingly chose to drive while impaired, give them the same sentence and justify it with consistency by answering the following three questions on sentencing. What is the punishment for? What punishment is required? How will your sentence help improve road safety?
Explain your sentence as it pertains to current legislation on operating a motor vehicle while impaired. Do not forget that the word ``sentence'' means ``decision rendered'' and it does not necessarily involve a criminal penalty. In addition, do not lose sight of the fact that the objective is road safety through the prevention of impaired driving, regardless of the reasons. Last, do not forget the equality of citizens before the law.
I examined the bill from this perspective, looking at it as a bill that aims to improve road safety and that makes amendments in terms of impaired driving.
The current act is, indeed, in need of amendment, because there are two major problems with it. The first problem is that everything focuses on alcohol, both in terms of application of the act and prevention. The act has nonetheless had its positive effects. I have been teaching at the university for 25 years, and I have seen a change in the behaviour of young people in terms of impaired driving.
However, the flip side of the act is that we have forgotten the issue, which is not driving a vehicle when you are not fit to do so. All we learned is that we should not drink and drive.
Fifteen to twenty per cent of cases of impaired driving involve people who fall asleep at the wheel, without counting those who get behind the wheel when they are too emotionally worked up or after having taken medication.
By focusing on alcohol, we have neglected many cases of impairment. At present, the only mandatory test is the breathalyser. As far as prevention goes, I agreed with broadening the strategies for prevention and the police strategies, in order to cover all the causes.
The second problem in the current legislation deals with repeat offenders. Clearly, the vast majority of accidents are caused by people who have remained unaffected by prevention campaigns and who have a real problem, primarily with alcohol. As a matter of fact, alcohol is the cause of most accidents involving repeat offenders.
In cases like that, the problem is not being able to indefinitely suspend an individual's driver's licence if he or she has an alcohol problem, until a certified person has decided that the alcohol problem has been resolved.
When I read the bill, I note that the logic is the same in terms of detecting impairment. I will not repeat the data in the bill because you have undoubtedly heard it ad nauseam here and elsewhere.
I would however like to talk about the problems the bill present in terms of remedies. First of all, the costs involved will make the application of this bill impossible. It involves training drug recognition experts.
These experts are police officers who, for the most part, spend just a few years in a position, then move on to other positions. That may well cost a fortune. In my opinion, we will never have access to these experts everywhere their services are required. Then there is the cost of the detection equipment that must be continually updated and maintained in order to be valid, without counting all of the legal actions.
We already see that with driving under the influence of alcohol. All you have to do is look at the Yellow Pages to see just how sought after lawyers are, and what good business they are doing with this legislation on impairment, and they will do even better business if this new act is adopted.
The second problem with this new legislation, which will open the door for a host of lawyers, is that there are no valid tests to detect drug impairments, be they prescription or illegal drugs, like there are for alcohol at present. Drug impairments will be detected based on subjectivity, an impression. And what we may well see is a kind of discrimination towards clients targeted by tests to detect impairment.
As all experts working in the field have told Parliament, drugs cannot be detected using tests. Tests will end up being done on certain drugs used by certain populations, but do not try to convince me that will be done blindly.
When tests are done in a lab, the drug you are looking for must be specified, and fees are charged for each substance identified. Certain drugs will certainly be targeted more than others. In the field of drug recognition, existing information is limited to illicit drugs.
In France, to facilitate the identification of effects linked to prescription drugs, a pictogram is put on all prescription drug labels. The indication is clear and is the result of assessments by experts. If the pictogram is yellow, users must pay closer attention to signs of fatigue. If it is orange, users must obtain the permission of a doctor to drive, as that capacity may depend on several medical factors. If the pictogram is red, users may not drive. That is an interesting solution.
Medication currently labelled with an orange sticker includes pain medication, tranquilizers, medication to treat diabetes, Parkinson's disease, epilepsy, and other commonly used substances. We must therefore ask ourselves if we need tests for all of these drugs or if it is better to target all of the reasons for impairment.
The fourth problem is the following. This approach weakens prevention messages. We use messages indicating that using certain products may lead to criminal law problems. As a result, a man who has had too much to drink wakes up his girlfriend, at two o'clock in the morning to get a ride home. The girlfriend, although she is sober, gets behind the wheel. I am not however certain that she is any more fit to drive.
Another example is a person who goes to bed very late and gets up very early the next day to go to work. If that individual consumed too much alcohol the night before, his reflexes will not be sharp. His faculties will be impaired even if a road test proved negative.
The message that young people remember is not that they must be fit to drive, but that they must not obtain a positive result at a check stop.
Moreover, millions of dollars will be spent on this bill instead of spending it on prevention or on awareness campaigns, for example, regarding medication for seniors. We could make pictograms, or focus more on young people and focus on all impairments, the effects of fatigue and other factors.
The question we asked ourselves is how do we resolve the situation? What was needed first of all was a solution to the initial problem, one that takes into account the multiple factors that can lead to impairment. To do that, thanks to modern technology, we do not need to reinvent the wheel. It is easier for a police officer to do a reflex test than to learn how to identify the effects of each drug. These tests could even be filmed, at a low cost, if that were desired, and make it possible to determine if the individual is impaired. Regardless of the cause, the individual does not have the reflexes to drive. Whether this condition is due to a lack of sleep, alcohol consumption, medication or drugs is not the issue. First and foremost, this is an attempt to determine if a person is fit to drive. And with the reflexes test, it is entirely possible to determine that.
The more complex the procedure, the less likely the police will use it. The advantage of the reflex test is that it is simple. Resources are not always available to conduct more advanced testing which often is more time-consuming. The simpler the procedure, the more it will be used.
A procedure which is as complex as the one we are talking about is less likely to be used, and consequently fewer offenders will be apprehended.
Also, the harsher the sentence, the more likely people will file an appeal and the more costly the process becomes. Studies have clearly shown that seazing a vehicle for two or three days, the loss of demerit points and the loss of your driver's licence, as well as higher insurance fees, are enough to convince people to change the way they drive. What people are most afraid of is losing their licence. A procedure which is this complex and which will be rarely used will not change the way people drive. One principle in criminology which we teach our students is that the certainty of a sentence and how frequently it is applied work better than imposing a more severe sentence less frequently.
It is clear that we must keep an offence registry. The spokespeople for the Canadian Safety Council are more informed about that than I am. Since we have databases, this type of registry could easily contain the names of people who have a record of impaired driving. This type of tool could help authorities identify repeat offenders and impose a therapeutic injunction; otherwise, the vehicle could be seazed. We need to specifically target repeat offenders.
If less money was spent on the types of measures contained in the bill, there would be more money left over for road accident victims' support programs.
In conclusion, I hope that the measures which will be taken will make our roads safer, reduce the number of victims and provide them with more support. In short, we need to give the police better tools to help prevent impaired driving, regardless of the type of impairment. Police action succeeds if the procedure is simple, if demerit points can be taken away, if insurance costs might go up, and if there is a good offence registry. These measures, which are much cheaper than those contained in the bill, would also allow for additional prevention measures to be taken and more road accident victims' programs.
[English]
Gary Mauser, Professor, Simon Fraser University, as an individual: Honourable senators, thank you for inviting me. I am a professor at Simon Fraser University. I am privileged to be attached to both the Institute for Canadian Urban Research Studies in Criminology as well as the Faculty of Business Administration. I have researched and published in criminology for more than 15 years. My doctoral training was in social psychology and quantitative methods. My academic research has been published in criminology, political science as well as academic business journals.
I am here to support Bill C-2 because I think it is a modest step towards improving public safety. This bill contains a number of measures that impact, directly and indirectly, upon the length of incarceration periods such as escalating mandatory sentences and reverse onus for certain bail offences.
My remarks will be directed to the question of whether or not incarcerating serious or violent offenders is effective in protecting the public. My reading of the criminological research suggests that it is indeed effective. Increasing the number of offenders who are incarcerated serves to reduce violent crime and homicide rates. That is especially pronounced with homicide rates. I repeat: Both American and international research supports the wisdom of longer sentences for those who have been convicted of serious or violent offences.
The facts indicate that violent crime rates have fallen faster in the United States than they have in Canada. Between 1991 and 2006, the overall violent crime rate in the United States fell 38 per cent but only 10 per cent in Canada. This drop is also evident in homicide. Over the same period, the homicide rate in the United States fell 42 per cent while in Canada less than one third. Please see the attached tables. I am sure they are easier to interpret than my pitiful words.
Criminologists have been studying this drop in the United States, which was unexpected, with some attention over the past decade. The results of these analyses are now becoming clearer. There are literally hundreds of studies, but fortunately, I will limit my discussion to only the most important.
Especially illuminating is the research conducted by Marvell and Moody. These two gentlemen are among the most respected criminologists in the world. In their time series studies, they found strong results at the national level affirming that expanding prison populations of serious or violent offenders is convincingly tied to reducing violent crime rates.
Their 1997 publication demonstrated that, for every 10 per cent increase in prison population, homicide rates dropped 13 per cent. In their studies, they controlled for a wide variety of potentially confounding variables, such as inflation, unemployment, demographic trends and socio-economic factors. Similar relationships were found for assault and robbery. Marvell and Moody's results were quite robust. Their research findings have been replicated by other researchers. One study in particular I should mention is Kovandzic and his colleagues' 2004 paper. These researchers not only confirmed Marvell and Moody's findings, but they also examine the specific effects on violent crime rates when offenders are released from prison. They found no evidence of a significant positive relationship between prison releases and homicide.
Prisons are expensive. However, the important question is who ultimately bears the cost of crime. Prison costs taxpayers more than probation or house arrest, but the costs of not incarcerating violent criminals are borne by the public directly. The costs of criminal violence are paid by the victims.
While it is quite difficult to estimate, it is useful to make the effort. Table 1 shows that direct monetary costs borne by the victims of property crime is $4.6 billion per year. The government does not spend that; the people spend that. The figure is around $719 million for victims of violent crime. Obviously, financial costs for victims of violent crime are a minimal estimate of the costs paid by these victims. Table 2 compares two approaches to estimating the costs that crime victims bear.
When serious offenders are allowed to avoid jail time, they are then free to commit more violent crimes. Individual Canadians bear these costs. To take one blatant example, Jane Creba, who was killed in Toronto on Boxing Day in Toronto in 2005, might still be alive had the previous government acted to keep serious offenders in jail. Other examples of questionable sentencing decisions are frequently reported in the media.
Research in both the United States and Canada suggests that those in social minorities were victims of violent crime at higher rates than other citizens. Thus, it follows that increased prison terms will be especially effective in reducing the victimization rates among minority members. Despite what you hear from special interest groups who may cherry- pick data, criminological research is clear: The imprisonment of serious or violent offenders has played an important role in the dramatic fall of violent crime in the United States. These results support the logic behind Bill C-2, that is, of incarcerating those convicted of serious or violent offences.
Despite my support for Bill C-2, I do have some reservations. In my view, partly as you can hear from my discussion of violent crime, the focus should be on violent crime and violent criminals and not just gun crime. Violent crime involving firearms is only a small portion of serious violent crime. Knife-wielding criminals cause more — and frequently more serious — injuries to their victims. Additional research is present on my website.
Tables 3 and 4 attached to my presentation, demonstrate the comparison of knife, club and firearm violence and the injuries caused by these weapons. You can see in the first line that knife victims are more likely to suffer major physical injury than are firearm victims. Line four shows that knife victims are much more likely to be injured than are firearm victims. Some criminologists speculate that the reason for this is that victims of gun violence, as well as the perpetrator, believe that gun damage will be more dangerous than knife damage and so compliance is more readily offered, accepted and expected. In knife violence, the perpetrator believes that the victim will fight back and must be injured to start the conversation. Therefore, injuries are much more frequent.
Before I conclude, I will say a few words about the tendency of many people to refuse to believe statistical studies that do not conform to their previous beliefs. Such a position is buttressed by the cynical claim that statisticians can obtain any result they wish by simply manipulating and massaging the data. Such cynicism justifies laziness and ignorance. Certainly liars and sophists use statistics. Liars and sophists use language, too, and no one suggests we should abandon language because there are liars.
I urge honourable senators to do the hard work. Check up on me; go through my website; do your own analyses; read my references; make sure I am a good boy and not a liar or a sophist.
In conclusion, I support this legislation because it makes a modest contribution towards improving public safety. Research shows that keeping violent criminals in jail protects the public through simple incapacitation. If you are in, you are not out. If you are in, you are not hurting people on the outside. However, by focusing excessively on guns, this legislation will not be as effective as it could be. I am sure you know good legislation requires more than merely reacting to media events.
Thank you for your attention. I will be glad to answer questions.
The Chair: Thank you very much, Mr. Mauser. Before I turn to questions from senators, I would like to be sure that I have this straight. Your two charts, that is, figures one and two, basically track an index with the initial year being presented as one in each chart and then the percentage decline in violent crime and in homicide for both Canada and the United States being charted.
Mr. Mauser: That is right.
The Chair: Since the percentage decline in Canada has been less than the percentage decline in the United States, Canada is the top line and the United States is the line that is below running agreeably downwards?
Mr. Mauser: Yes.
The Chair: It does remain true, does it not, that absolute crime rates and, in particular, homicide rates per 100,000 population are far lower in this country than they are in the United States? They were at the beginning and they still are?
Mr. Mauser: Homicide, but not violent crime.
The Chair: Not violent crime, but homicide, yes. I think it is about one third.
Mr. Mauser: Homicide is yes and violent crime is no.
The Chair: We are a little over two and they are up around nine, are they, per 100,000?
Mr. Mauser: No, five.
The Chair: Five, which is more than double.
Mr. Mauser: Is it appropriate to explain my reasoning?
The Chair: Briefly, because I am eating into other senators' question time, but I asked the question, so explain.
Mr. Mauser: The reason I picked indices is because I was looking at managerial effectiveness. What you do as a nation has an impact on the nature of your nation.
Canada has made decisions in the criminological field; the U.S. has made other ones; what are those impacts? Brute numbers, such as averages, speak more to national character and history. The U.S. has several national characteristics that Canada does not share. For example, it had a longer, more brutal involvement with slavery than Canada. It has a much broader distribution of economics. There are more at the bottom and more at the top of the financial pyramid. This is the nature of the place.
Criminological efforts, no matter how enthusiastically passed, do not change these. It is important to look at the managerial efforts.
Senator Campbell: I would like to start with Professor Beauchesne.
We have, as a country, for many years, had prevention measures in place with regard to impaired driving. We see MADD commercials on television and government commercials in newspapers and on television. We also have on our medication vials, ``do not take with alcohol,'' ``do not drive machinery,'' ``do not interchange with different types of drugs.''
You state in your paper that these are all being ignored by government in the interests of drinking and driving and the criminal impact. I do not know how we can bring those two together. We are addressing these issues and I believe we have driven down impaired driving rates through some of those initiatives. How do you bring those together?
[Translation]
Ms. Beauchesne: More specifically, four or five years ago, one of my students took the time to study every program financed by the government, every prevention campaign shown on TV, and those which targeted kids in school. Nearly 94 per cent, or 96 per cent, of those programs talked about the same thing: alcohol impaired driving. Yes, the campaigns worked to some extent, and we should keep them, and even expand them, but say that impairment can be caused by substances other than alcohol.
People have to ask themselves whether they are in any condition to drive before getting behind the wheel. As well, prevention campaigns should target specific groups such as the elderly who are on medication.
We have to widen the scope of prevention and not undo what was done in the past.
[English]
Senator Campbell: With regard to drug testing as a golden business opportunity, do you not think that we should differentiate between what you have as commercial laboratories, for instance, and those that are accredited by forensic agencies, such as the RCMP crime laboratory and the Ontario forensic laboratory? These are not commercial laboratories; these are for specific forensic testing. It would seem that, at least in this section of your paper, they deal more with commercial, for instance, drug testing at a job or something outside of the criminal element.
[Translation]
Ms. Beauchesne: I hold to that. The accredited laboratories you are referring to are already overworked. Today, it takes several weeks before getting the results and we have to farm out the extra work to the private sector. If we decide that we want to impose smaller sanctions more frequently, there is no doubt we will have to turn towards private sector laboratories to reduce the backlog, otherwise people might end up waiting for their test results for months, which would happen under this new bill. Accredited laboratories already cannot keep up.
[English]
Senator Campbell: I do not know that that is the case right now. In any event, if samples were going to a laboratory of that type, the lab would have to be accredited. It would have to have the proper accreditation or it simply would not be accepted in court.
[Translation]
Ms. Beauchesne: Yes, but we would have to pay. I was referring to the additional costs related to the drug tests.
Senator De Bané: I do not have any questions for you. I simply wanted you to know that what you told us this afternoon has really gotten me to think. I was very impressed by what you had to say about the practical consequences of this bill, particularly with regard to impairment. You also said that there were several other ways to address this issue. I would like to thank you for this very interesting course you gave me.
[English]
Professor Mauser, I would not say I am familiar with all your writings, but I know that you are a well-known agent provocateur and you like to stimulate discussion with those points of view. I may be more in the mainstream. You have suggested that you are in a field related to criminology. This morning we had quite an exchange of views with a professor of criminology at Oxford University, Julian Roberts. I asked him if he could give us a summary of the opinion of experts and criminology scholars and what the judiciary thinks about mandatory sentencing.
He said that, in general, legal scholars in criminology as well as the judiciary are not in favour of mandatory minimum sentences because they do not take stock of the particular circumstances of the case to be decided. You seem to suggest another point of view. Am I right on that?
Mr. Mauser: I take it you are addressing me.
Senator De Bané: Yes.
Mr. Mauser: I was left a little bit awry, but let me see if I can come to some sensible response.
I believe keeping violent and serious offenders in jail longer than is now currently the case would be an effective way to reduce crime. Mandatory minimums are one way to go about attempting to do that, as well as the reverse onus provisions. You will notice that I spoke to the theory, to the goal, and I think that is a valuable approach to take.
Senator De Bané: Senator Merchant gave me statistics that show that the percentage of people in Canada who are condemned to prison is seven times less than the United States. European countries have even less than Canada. However, Canada, compared to the States, has seven times less.
Mr. Mauser: That perhaps might explain why the crime rate is increasing and the serious crime rate is increasing. You will excuse me, but I have looked at the statistics, and serious violent crime has increased in the last five years. Total crime, as reported in the newspapers, has declined, but all that shows is a decline in mild, not serious, by definition, crime.
The question is which number one looks at. Perhaps we could improve our rate. You will see those graphs I provided. Can Canada improve or are we so self-satisfied that whatever we have done is fine? I argue that we can do better and we can do better by keeping violent and dangerous people in jail longer.
Senator De Bané: Professor, you said something that I think was well put. You said that you have to look to the statistics without any bias and then take stock of that to come to logical conclusions. I am tempted to ask whether you also take the statistics as they are. I have read your article about gun control. You said gun control does not reduce crime. Then I say, ``Surely, Professor Mauser knows the statistics, that the more a country has stringent restrictions on arms control the fewer crimes are committed with guns.''
A good example is to compare the number of deaths caused by firearms in the United States with Japan, where it is totally private to have a gun. There are so many other countries where that can be done. You have reached another conclusion and you are the one who cautions us not to be biased.
Are you, by chance, a member of the National Rifle Association?
Mr. Mauser: I am surprised that you said you read my several studies on this area.
Senator De Bané: Not all of them.
Mr. Mauser: You read one of them. The studies are chockablock with statistics. For example, just to pick a few, Jamaica banned all guns and went house to house confiscating guns, every gun they could find, and the murder rate has increased virtually every year since. Ireland, to pick a different island, also did likewise. They left some farm owners with 22 rifles. Jamaica did not do that. Their homicide rate similarly increased 500 per cent, 600 per cent. England has had a very energetic effort at banning and confiscating all manners of guns and their homicide rate is increasing.
The question, as I said to the chair, is: What happens after one introduces something, not whether the nation is a big one or a little one or a purple one or a green one. Nations have characters that last. Japan has had, if you remember your history, a very long period where Japanese governments of various stripes have tried to eliminate weapon owning among the populous. They still have a problem with yakuza.
There is very little evidence that increasing the strictness of gun controls reduces the homicide rate. A certain minimum does help, for sure, but in general it is not a viable proposition. It is not only from my studies but many studies that that is a widely known notion. I am surprised that you did not see that in the statistics.
Senator Cowan: Thank you very much for being here. We found your testimony very interesting.
Most academics I know are not shy about listing in references to support their conclusions works in which they have been involved. I do not see in the list of references that you have attached to your paper any works on sentencing and crime that you have authored or co-authored.
Mr. Mauser: I have authored or co-authored other studies, but they are not immediately relevant here, so I did not include them.
Senator Cowan: Have you not authored or co-authored any on this field that you are addressing us on today?
Mr. Mauser: No. My field is econometrics and statistics, so I thought it would be useful to the committee to review other people's studies. Despite being shy and retiring, I thought it might well be of use to the committee to see the high- quality research that other people have done in this area.
Senator Cowan: I agree. I believe we found it very instructive.
Senator De Bané referred to testimony we received from Professor Roberts at Oxford today indicating that in his view the severity of sentence is not a deterrent to crime. I am paraphrasing his view that it is the fear or the apprehension of being apprehended or caught that really deters people from crime.
That view has been shared by Professor Dube. There was a study at UNB by Smith, Gauguin and Gendron, Dr. Ruben of the Aboriginal legal services, Toronto. There are a number of people who have written extensively on this topic who have published works in this area, who, it seems to me, have universally come to a view which is quite contrary to yours.
Mr. Mauser: No, I think you misunderstand the data.
Senator Cowan: Do I misunderstand the data or do I misunderstand you? I think I understand them.
Mr. Mauser: That is good. I think you misunderstand them though. Let me point out an error that many people make. The dependent variable is quite different. You focus on deterrence. Prison sentences are not very good for rehabilitation, either. These are very important dependent variables, both deterrence and rehabilitation. I asked a different question and came to a different conclusion.
Senator Cowan: The question I am asking and the question we are addressing is that the stated purpose of this bill is to reduce violent crime.
Mr. Mauser: That is what I addressed. I did not look at deterrence. I looked at reducing violent crime.
Senator Cowan: You are right; I do not understand you. I would have thought that if you were trying to reduce the incidence of violent crime, then you are really looking at deterring people from committing violent crime. Is that not correct? What is the difference?
Mr. Mauser: That is certainly one of the ways to do it. If you look at the notion of deterrence I do not think it is difficult to understand. Deterrence means to have someone look at the situation and think of something that has been instilled in them to be afraid of or to worry about or to want and then they make a decision not to do that. I am not looking at decision-making. I am looking at the police statistics of the number of offences committed.
Senator Cowan: What I am addressing is one of the stated purposes of the bill, which you support, although you might not go far enough in some areas, I suspect. I accept the fact that if you incarcerate a person, as long as that person is incarcerated they are not likely to commit any crimes amongst the general public. They may do some damage within the public; they may perfect their skills while they are there. I think you would agree with me that the studies that have been published would indicate that there is a correlation between the length of a sentence and the incidence of recidivism afterwards.
Mr. Mauser: It decreases. If you look on page 3, the research by Kovandzic suggests that there is no correlation between the time in which these violent offenders are released and a subsequent increase in crime rates, which would be expected if these violent offenders would be either better trained or at least just biding their time with their anger until they get out. It does not appear to increase the crime rate.
Senator Cowan: I suggest to you, Dr. Mauser, that the evidence that we have heard and that has been submitted here and in the other place is quite to the contrary, and that there is a direct correlation. The longer the people are there, there is a higher incidence of those persons reoffending when they are ultimately released because you cannot keep them in forever. At least, I do not think you are suggesting we do that; are you?
Mr. Mauser: That is not before us right now, and I am not supporting that.
Senator Cowan: I am pleased to hear that.
Mr. Mauser: It is easy for groups to reach premature consensus. It is easy for academics to agree with each other too quickly. I do not know if I am a provocateur or just a sweet, nice little boy, but I would like to say that many criminologists disagree with the conclusions that you have presented.
Senator Cowan: You made the statement. You said that keeping repeat offenders in jail longer reduces crime.
Mr. Mauser: Yes, I said that.
Senator Cowan: You believe that. Can you provide any studies that would support that conclusion?
Mr. Mauser: I am sorry you did not listen.
Senator Cowan: I was listening carefully.
Mr. Mauser: I am sorry. You will see at the end I have a list of references on your sheet. You will remember that during the presentation, I mentioned two studies.
Senator Cowan: You mentioned Marvell and Moody.
Mr. Mauser: There is also Kovandzic and his colleagues. I tried not to bore the good senator with tons of studies, but I assure you that these are not NRA members or weirdoes that are outside the consensus. The premature, conclusive claims are impressive.
Senator Cowan: Would you give greater weight to these two studies than to the evidence that has been provided by Professor Dub, the UNB study, or by Dr. Roberts this morning?
Mr. Mauser: If you asked Dr. Dub and Dr. Roberts about the paucity of data available in Canada, you will see that they are as concerned, as I am, that the data simply is not available to make better and stronger conclusions. I do not know if they have overstated the case or not, but we need better data, and that is one of the reasons I went to look at other countries.
Senator Cowan: Would you suggest that it might be unwise to make major changes without doing those kinds of studies?
Mr. Mauser: I am an academic. I like more data. I support this bill. There are certainly criticisms I could make, but since the tenor of most of the testimony I have read and heard is critical, I thought it would be more important to stress the positive aspects. Even though I have not published studies in this area, I am statistically qualified to look at them. I thought that might be of interest to the committee.
The Chair: Further to studies quoted, I have a supplementary question. On page 2 of your brief you quote Marvell and Moody as saying that expanding prison populations of serious or violent offenders is convincingly tied to reducing violent crime rates.
Then, a couple of paragraphs down, you quote Kovandzic and his colleagues as finding that there was no evidence of a significant positive relationship between prison releases and homicide. That sounds contradictory. It sounds as if, on the one hand, you are saying keeping them in prison reduces violent crime rates, and, on the other hand, you are saying letting them out will not affect the homicide rate.
Mr. Mauser: No, they are not contradictory.
The Chair: I am asking you to explain.
Mr. Mauser: I will be happy to. The argument is that if we take time in prison as our independent variable and look at crime rates, whether it is the homicide rate or the violent crime total rate, those two notions are strongly related. As I have said, an increase in the total prison population is strongly related to a decrease in homicide or violent crime rates.
The release question is directed at what a few senators have already discussed. If we contain angry, violent people and we let them out at some point, despite the length of time they are in, the moment they get out, as the number of released prisoners increases, will the crime rate increase also? It would be expected to, if we follow the theory that by harbouring people in a box when they get out they are dangerous. That does not seem to be the case in that research study.
I hope I have clarified it.
The Chair: I will have to think it through again.
Senator Oliver: Thank you, Dr. Mauser, for your presentation. I enjoyed it very much. You have already answered a number of the questions that I had, so I will not be very long.
As you know, one of the things this government is trying to do with Bill C-2 is to go after a relatively small number of violent, repeat offenders. Implicit in that, the government is saying that we also recognize that in order to make our streets safe, victims also have some rights, so we have to keep in mind the victims of these violent offences and they need some protections as well. You concluded that this proposed legislation, therefore, is a step towards improving public safety.
Mr. Mauser: Yes.
Senator Oliver: You mention, near the end, that the criminological research is something that this committee should test, because mandatory minimum sentences are certainly one way to go in making our streets safer.
That is what the government has been trying to do. As serious crimes are increasing, according to your evidence and some other evidence before this committee, Bill C-2 seems to be at the right place at the right time.
In view of the comments and questions put to you just now by Senator Cowan and Senator De Bané, could you tell me more about the type of methodologies used in the criminological research you relied on for the conclusions you and I have just agreed are the essence of this bill?
Mr. Mauser: Most of my analyses are of the statistical kind and they are time-series structured. Both the Kovandzic and Marvell and Moody studies are time series of large databases.
Senator Oliver: You are looking at long periods of time.
Mr. Mauser: You are quite right. There are long periods of time, annual measurements on a number of factors. One picks carefully the nature of what you will statistically think of as an independent variable and a dependent variable, because all these data are coterminous, collected at the same time. We do not know which causes what or what the lags are. This is arcane and complex. Econometricians argue vehemently amongst each other about the proper way to do this. That is why I stressed the robustness, which means that with several alternative ways of defining measures, we still get the same result and replication. Different researchers have repeated this basic study and found the same kinds of results.
One of the problems in this area is state-wide analyses and this study found with nationwide data a much different conclusion. Many state-wide studies are limited to one small geographic area and they came to the opposite conclusion. That is why this study is so important.
Senator Oliver: Your paper is based upon national figures.
Mr. Mauser: Yes. I stress the Kovandzic paper as well because of the question that many people are concerned with: What happens when we let these guys out? This research specifically looked at that and found there did not seem to be a relationship in the timing of their release and an increase in violent crime.
Senator Di Nino: Professor Beauchesne, I followed your presentation thoroughly and was in agreement with most of your commentary. I do not disagree that alcohol seems to have been too much of the focus in the past. I think we would all agree that alcohol is not the only impairing substance by which drivers are at times affected.
I found it surprising that you are strongly opposed to mandatory drug tests. The witnesses who appeared immediately before you were clear and eloquent in their presentation in their area of expertise, particular Sergeant Martin, who dealt with the drug impairment issue. He said that a number of steps must be taken before a drug test is required. The officer would have to have fairly strong evidence that there is an impairment.
We are trying to keep our streets and highways safe from impaired drivers, regardless of what they are impaired by. If the police have reasonably good evidence that there is impairment by a substance that is likely not alcohol, should we not be giving them the authority to verify that in order that we can keep these people off our highways and streets in order to keep our country safer?
[Translation]
Ms. Beauchesne: Yes, they need to have the right tools, but the simplest tool is still the reflex test to find out whether a person is in any condition to drive.
Look at it from another angle: I get the driver to step out of the car, I find his behaviour is erratic, but the drug expert does not believe that the erratic behaviour is related to drugs; should the person be allowed to drive away?
[English]
Senator Di Nino: I am not here to answer questions.
[Translation]
Ms. Beauchesne: We just do not want to conclude that there is good impairment and bad impairment. There is impairment, period; and the question we must ask ourselves is: is there a mechanism to test impairment? Yes, we still have the good old reflex test, which has been improved, and a person undergoing this test can easily be filmed. That is when you will get the full measure of the impairment.
[English]
Senator Di Nino: The police officers who we ask to undertake these responsibilities on behalf of society are saying that, in order to be able to keep these people off the streets, in order to be able to convince a judge and a jury, if that is the case, they need evidence of impairment by drugs. This would give them a stronger position in court, and that is why this bill includes these provisions.
[Translation]
Ms. Beauchesne: I understand your question because of the way people perceive the issue today, namely that there are all kinds of complicated legal procedures dealing with alcohol impairment, and people seem to think that the same thing will happen with regard to drug impairment. That is why I pointed out that in my opinion, going to the courts is not the best solution. Legal costs are another issue.
When you are dealing with the middle class, with people who drive a car and who have the means to defend themselves, I can guarantee that in cases where a harsh sentence is imposed, the court and legal costs will be enormous. Was the breathalyser in good working condition? Has it been calibrated? The RCMP would incur costs to answer those questions, and so on.
I say there is a much easier way to go. As we said earlier, the likelihood of being sentenced is much more effective than the sentence itself. Studies have also shown that a person who commits a crime, even a violent one, does not stop to think beforehand whether they might receive a two- or four-year sentence. They will not decide to hold back from committing the offence if they feel they will be getting four years rather than two. That is not how it works. The sentence itself is not a deterrent, but rather the likelihood of getting caught.
If 600 RCMP drug recognition experts are spread out throughout Canada, there is a low likelihood you will be caught. The odds are against it. It will not be easy to increase the number of those officers because, first, it would cost a fortune, and second, officers move throughout their careers; they do not stay in the same position forever.
It is possible to change people's behaviour using much simpler procedures. For most people, seizure of their vehicle is a significant shock to the system on its own; increasing insurance premiums is another, and losing demerit points is a third approach that could be used.
With these procedures, people understand that they have to change their behaviour; we do not need to go about this with a sledgehammer.
[English]
Senator Di Nino: As I said before, I was pretty much in agreement with your presentation other than the last sentence, which speaks against the requests of those who have been dealing with this issue and who work in this field all the time. They have asked for this tool. We appreciate all the opinions we receive, but you disagree with them and do not think they need to do a drug test in order to determine that someone is impaired.
[Translation]
Ms. Beauchesne: The whole issue of impaired driving must be covered much more broadly, but we do not need all this structure and all these procedures. There are much simpler, less expensive and more effective ways of changing people's behaviour regarding impaired driving.
[English]
Senator Di Nino: I would like to put on the record a different view on the purpose of this bill than that of my colleague Senator Cowan. The main purpose of this bill, as has been stated repeatedly, is the protection of Canadians from criminals, particularly repeat violent offenders.
My first question deals with statistics that we have from the Canadian Centre for Justice on firearms-related violent crime. The statistics suggest that such crime has been stable in recent years, except that the number of youth accused of firearms-related violence has increased in the last three or four years.
Have your studies found that to be the case?
Mr. Mauser: Yes, I have found basically the same kind of phenomenon. I tend to look at the homicide rate because homicide is uniformly thought of as serious and is uniformly treated in a serious fashion, with regard to both reporting and police treatment. With other kinds of violent crimes, reporting and treatment can be quite variable depending upon family situations, knowledge of the community and police treatment.
I have focused on homicide. That is why the second figure shows that homicide rates in Canada have declined since the early 1990s, but were flat for most of the 1990s, declined somewhat in 2003, then increased for two years and are now declining again. The long-term trend is a slight increase in homicide.
You are quite right. Youth homicide has gone up much faster than total homicide. Gun crime and gun violent crime is a narrower slice of violent crime that covers very serious and some not-so-serious types of crimes and excludes knife crime. I make an argument here that weapon usage should be penalized, because those people are the people who are causing problems to the general public, and not just gun people.
You will notice in my tables on comparing gun, club and knife violence that injuries are more frequent and more serious with knives than they are with guns. If you look at the last row, in 2003, for assaults, there were 5,700 knife injuries compared to 800 gun injuries; for robbery there were 5,000 knife injuries as opposed to 3,000 from firearms. I am not arguing that knives are worse than guns. I am simply saying that we should not ignore them.
Senator Di Nino: Would you agree that the incidence of those kinds of acts by youths are increasing generally?
Mr. Mauser: Yes, they are.
The Chair: Could I slide in here the observation in terms of the purpose of this bill — I will not get into an argument about it — its short title is ``tackling violent crime.''
Senator Di Nino: I understand that. We are talking about violent crime.
The opinion you provided to us, based primarily on Marvell and Moody's research — which I intend to pick up and read because I find their analysis very interesting — is that there are other respected criminologists and researchers whose opinions differ from those who we have heard so far.
Mr. Mauser: Yes.
Senator Di Nino: In effect, by jailing some violent criminals, their research shows that homicide rates actually dropped. Is that correct?
Mr. Mauser: That is correct. One of the problems that criminologists have is that they can be too narrow and exclude perfectly good data. In one of the paragraphs I did not read out, but it is included on page 2, there is an indication that many Canadian criminologists ignore American data. I think there is a lot of data there that is useful to look at. They have made many mistakes and made many clever decisions. We can learn from their mistakes and their good decisions.
The fact that homicide and violent crime rates have declined faster in the United States than in Canada suggests that they are doing something right. When you point this out to American criminologists or American police, they are shocked. ``Oh, my God, we are doing something right. What could it be?'' That is true.
Think about it for a second. We have a large country with ingrained social processes that includes both officials and normal people. Turning that around is much more difficult than a smaller country. Turning the Titanic is much more difficult than turning a little sail boat. What are they doing that is causing this massive decline? That is why I looked at indices so I could see what is changing rather than looking at average rates.
Senator Di Nino: I was fascinated by the question you raised in my mind dealing with public costs versus private costs. That is an area that I will be reading some of the references you have provided, but also giving some thought to because it is an interesting concept. I had not thought seriously about it. When we are talking about the cost of crime we generally do not add to the public costs the costs of the private individual. Thank you for that.
Thank you for your courtesy, Madam Chair.
Senator Andreychuk: We actually do, because we get good statistics from insurance companies and others who provide the cost for individuals when there is break, enter and theft. We also have data through hospitalization, which is another one that has been noted. I think there is more evidence with regard to cost. That is not something you can take to court, but if your house is broken into and something valuable is stolen, you are never the same.
Senator Di Nino: That is something I have not thought about.
Senator Andreychuk: I think there is some data that is not basically in this legislation is the point I want to make.
Professor Beauchesne, if I understand you, you are saying you do not agree with the Criminal Code approach to impairment. You want to define ``impairment'' broadly. You put into your case scenarios that you used at the start someone who suffered from sleep deprivation: Worked so hard, got in the vehicle and caused an accident.
While that is an interesting concept — that we would look at impairment in a broad, general way — I do not think we would ever be able to deal with the more difficult end of the spectrum of impairment. I noticed you said that we are focusing on drinking and driving, but we share costs of road safety, public transit, road repairs, improved signage and lights, and stiffer safety standards for automobile manufacturers.
I understand where you are going, but it would seem to me that we are doing that. Every ministry at two levels of government have a piece to play in dealing with some aspect of your broad definition of ``impairment.''
The Criminal Code is tackling a more narrow definition of ``impairment'' for a particular purpose; that is for the responsibility of the person who gets behind the wheel. This is why I question you. You are saying that people make choices not on the ability to drive — and I agree with you — but solely on the possibility of getting caught. That, I find, to be rather curious. It seems to me that much of why we went the alcohol route was that many people did not think that killing someone when they were behind the wheel was the same as killing someone when they used a weapon or their fist. In other words, homicide and murder was something different than when a person in a drunken state gets behind a wheel and kills someone.
As a society, I think we did not do that until we started taking the discussion more seriously and made that equation: Death is death is death. If you take actions carelessly there is a consequence in the criminal law.
You seem to be arguing against that. You are saying that is not the issue. I find that to be rather curious. I understand sociologically why we should look at all aspects of impairment.
[Translation]
Ms. Beauchesne: It is not just sociological, it is criminological as well. For example, the logic applied at the moment in arresting someone for impaired driving is similar to the one applied in the case of speeding: someone is driving at 130 kilometres an hour despite the fact that the speed limit is 100 kilometres an hour. The person is young, and the decision as to whether or not to stop the individual is based on the reason the person is speeding. Why do we do that? Why not continue doing what we do at the moment using radar? We should say that if someone is speeding, that is a dangerous practice and we should put a stop to it. If we follow this logic, there is the issue of impaired driving, but there is also the issue of differences that may result from fatigue, age or some other factor.
There are simple ways of determining whether an individual is impaired. So let us test people and follow up on that. We have adopted a discriminatory approach as regards some groups, but if our concern is safety, the idea is to get people who do not have the ability to drive off the road.
In the case of alcohol, legislation was not the only thing that had an impact. I come back to my student's research on prevention programs funded by the federal government in schools, on television and elsewhere. This was a huge campaign and it was successful.
And it is not utopian, it is not sociological — it is criminological. The same is true of speeding. If you take the example of France, which introduced radar two years ago, this has resulted in a change in the driving habits of the French. This looked utopian, but the fact that people knew they would be stopped changed their behaviour.
If we create an extremely complex procedure such as the one provided for here, we will not succeed in changing behaviour because people will not be convinced that they will be caught. I actually fear that because the procedure is complex, fewer people will be stopped than before.
In my opinion, the two approaches that work are prevention and the knowledge that one will be caught. These approaches are not difficult to implement. We have to accept the fact that we are not engaging in discrimination by trying to punish young people who use cannabis. We have to accept the fact that an older individual who has taken some medication or someone who is very tired is subject to the same rule that applies to everyone else.
[English]
Senator Andreychuk: You seem to be arguing against the entire Criminal Code.
Ms. Beauchesne: No.
Senator Andreychuk: We have charges such as careless driving, dangerous driving and negligence causing death. We do make differences. It is the intent of the person.
I think the test for driving, of course, is if you can drive a vehicle and pass the provincial driving test, then you get the driver's licence. To give the police the responsibility to then coordinate all types of impairment from the safety of the roads, it leads to that.
I realize that we are in a complex situation, but I do not see an easy answer. How would we handle, for example, an education program? We can say, ``Do not drink and do not drive. Do not take drugs and do not drive. Here are the consequences.'' However, if we say, ``Do not get impaired'' and that takes into account everything from the condition of the roads and so on, those are mixed messages. Some messages are directed at people, some to the government and some to other parts of society.
If I may say, from your generic viewpoint we oversimplify, and life is not that simple. We are targeting something here. If you take a substance — we are not talking about careless driving or dangerous driving as those are covered in other sections — if you willingly and knowingly take a substance that you know could impair your driving and then you get behind the wheel, there are the consequences.
[Translation]
Ms. Beauchesne: When the minister came forward with this bill, he said he wanted to deal with two issues. The first was the fact that alcohol was not the only substance that caused impairment, and that the scope had to be broadened. The second justification for the bill was the minister's desire to reduce the alcohol-related legal complications and a desire not to have the same thing happen in the case of other substances.
Here is what I have to say about these two objectives. It would be very easy both as regards prevention and police intervention, to broaden the concept of impaired driving, which is what the minister wanted to do. Second, the minister will not solve the problem regarding complicated legal measures. If the bill is passed, I promise you that the yellow pages will contain the names of many lawyers who specialize in drugs, because this will become a very lucrative field.
We are not simplifying things unduly here. Rather, I think we are complicating things unduly, and that if we really wanted to do something effective, we could do that much more simply.
[English]
Senator Andreychuk: I think we will agree to disagree.
The Chair: You both enunciated your positions very clearly.
Senator Stratton: Welcome to both of you. I will address my questions to Ms. Beauchesne. My first question is based on the crime trends in Canada statistics, page 14, presented to us by the Canadian Centre for Justice.
Ms. Beauchesne: Page 14 on the English version?
Senator Stratton: Yes.
Ms. Beauchesne: Page 14? I do not have 14 pages in English.
[Translation]
The Chair: Professor Beauchesne, the senator is referring to figures put forward by Statistics Canada.
Ms. Beauchesne: I see.
[English]
Senator Stratton: I am referring to slide 11.
Senator Cowan: Do you want the French or the English version?
Ms. Beauchesne: It does not matter.
Senator Stratton: They may not be the same.
Ms. Beauchesne: Figure No. 14?
Senator Stratton: There are a series of slides and I am referring to slide 11 where it states: ``The steady decline in impaired driving offences since the early 1980s.'' If you go beyond the box to the bullets underneath, it states: ``The rate of impaired driving offences dropped 68 per cent between 1981 and 2006.''
That is quite a dramatic drop in offences. Most Canadians would attribute that to the fact that the penalties that are imposed on impaired driving, the 0.08, as well as the method by which they are tested using the Breathalyzer and so on. In my view, it has been quite effective, not completely effective but it is effective.
The second concern raised in the third bullet is the rate — and this is the disturbing one — of cocaine offences has increased 67 per cent since 2002 and was at its highest point in 2006.
This legislation is specific to addressing drug-related driving impairment. I think those two statistics seem to prove that the governments of Canada and the provinces have effectively imposed a method by which we have dropped alcohol impaired driving offences by 68 per cent.
Why is that not effective? If you are saving lives and you are dramatically cutting down on impaired driving, why would we not continue with that?
[Translation]
Ms. Beauchesne: Why do you necessarily attribute the drop in drunk driving to the penalties for this, rather than to all of the prevention campaigns? Prevention plays an important role in changing perceptions.
Second, you have shown some figures on cannabis and cocaine. I see no figures on the increased use of medication by seniors. Why is that? Medications are drugs too. Has a decision been made to target cannabis and cocaine specifically?
The Chair: I should point out that senators are here to ask the questions.
Ms. Beauchesne: That is a habit I have as a professor, I apologize.
[English]
Senator Stratton: I will gladly answer the question. The simple fact of the matter is, yes, that will now be taken into consideration with the passage of this bill.
If someone is driving and is under the influence of drugs for medicinal purposes, they will be stopped and checked if they are driving erratically. However, there is a difference whereby when they are stopped and checked and the police officer realizes that it is medical impairment, then there is a whole different process that takes place other than a criminal charge. That is happening with this bill. That will happen with this bill.
When you have a rate of increase of cocaine offences of 67 per cent, I think you need to do something. That is my view, and I base it on the fact that if we have been effective in dropping impaired driving offences 68 per cent, then surely to goodness we can have the same impact on cocaine offences with this law.
[Translation]
Ms. Beauchesne: I did not think we were talking about legislation designed to stop users of illegal drugs, I thought we were talking about legislation to improve highway safety. I do not necessarily make a connection between the two.
You talk about illegal drugs and the fact that the situation is disturbing. I do have some very clear data on drugs. This is my area of expertise. In the past year, one Canadian in four used an illegal drug. We can agree that many people use drugs — whether they are prescription or illegal drugs. However, we should not be targeting just these individuals. We have to do something about highway safety, but we must target all of the factors involved in impairment.
The measures must be simple so that they can be applied often and to all those who drive while under the influence of drugs or while impaired for other reasons.
[English]
Senator De Bané: Professor Mauser, it is a given that social sciences are not, by definition, exact sciences. Human behaviour is not exact. That being said, some things are a given. For instance, a judge is sworn and gives an oath that he will render a decision based on the law and the evidence before him. If he does something else, it is not right. Do you agree with me that he would not be fulfilling his obligation as a judge if he rendered a decision without proper regard for the law that he has to apply and without regard to the evidence put before him?
Mr. Mauser: I am not a lawyer, but following the law and making good sense seem reasonable things for judges to do.
Senator De Bané: You are not a lawyer, but you do find that reasonable?
Mr. Mauser: So far. Where are we going with this?
Senator De Bané: I will tell you where we are going. I will quote you from page 2 of your document. You say:
To take only one example: Jane Creba, who was killed in Toronto on Boxing Day last year, might still be alive had the previous government acted to keep serious offenders in jail longer. . . . Other examples of questionable sentencing decisions are frequently reported in the media.''
Am I to make my decision based on what I read in the media, or do I rely on the judge who heard all the evidence before him? You are saying that if that person was in jail longer, we could have prevented that murder. What is ``longer''? Life? If you free him in five or ten years, there is always one day after. I cannot believe that you are basing your research on what you read in the media. The judge was sworn to render a judgment based on what he heard before him. You have admitted yourself that he would be a delinquent judge if he took other things into consideration.
Are you aware, as a researcher, that the Department of Justice commissioned a research study by professors at Carleton University, an Ottawa university, which study was made by Professor Thomas Gabor of Department of Criminology at the University of Ottawa, and Nicole Crutcher of Carleton University, entitled ``Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures?'' The conclusion of their research in January 2002 was that the research does not support what you, professor, are saying about the use of mandatory minimum sentencing, or longer ones, as you say on page 2, for the purpose of deterrence. To say that this crime might not have been committed if the judge was smart and sensible enough to impose a longer sentence, with the judge having studied and heard the evidence, I find not to be of the calibre of a renowned scientist like you.
I remind you that the Department of Justice commissioned a study of the judges of our country, asking them if they would be in favour of mandatory sentencing. A slight majority said they did not think that would not be proper. There are many consequences of that, including leading the prosecutor to hesitate in prosecuting someone if there is mandatory sentencing. The reference to that study, where the judges, with a slight majority, said no, is the report of the Canadian Sentencing Commission entitled: Sentencing Reform: A Canadian Approach, published at Ottawa in 1987.
I was shocked when you said that we read in the papers and the media about all sorts of sentences. I cannot judge a judge who has heard the evidence and who has rendered his decision, particularly when you use this argument to say if the sentence was longer, he might not have committed the offence. The only certainty you can have is to put him in a maximum security prison for life. Is that your bottom line?
Mr. Mauser: On my last page, I —
Senator De Bané: I was quoting from page 2.
Mr. Mauser: I realize that. I thought I would introduce my answer, which will be briefer than your question, by an introduction on page 5. I say there is a cynical claim that statisticians can obtain any result —
Senator De Bané: Exactly.
Mr. Mauser: I am impressed by how you can manipulate my words to come to your conclusion.
Senator De Bané: I am quoting you.
Mr. Mauser: I am impressed. First, judges are bound to follow the law as well as the facts in front of them. The previous government set up the conditions that all judges have to follow in those decisions. There was a previous set of rules about how one could obtain or not obtain a release. As I understand it, the individual who has been charged with killing Jane Creba was out on release for some reason; I forget which. It is speculative. I do not know the judge or the person. It is speculative — you will notice the verb is ``might'' still be alive — had the judge had different instructions about the way in which he can process his data. Had he been better instructed by the previous government, it is possible that he would have kept that gentleman in jail longer. Therefore, had he been in jail longer — I do not know about infinitely, but two or three weeks — he would not have been out of jail by Boxing Day.
My argument in support of the bill is that one could make a release more difficult and thereby keep more violent and serious offenders in jail or in holding facilities longer, lowering the risk to the public. That is the argument.
The newspapers are my source of some data, though not this particular sentence; you will notice the reference to the media comes after that particular analysis. I must admit, I have not read the court cases for all sentencing or even all questionable sentencing decisions. I agree with you that the media is not a very trustworthy source. Some of the questionable decisions have not been put in the media. As well, some media-claimed questionable decisions are perfectly reasonable once one looks more closely at the situation facing the judge. I certainly find that not surprising at all.
Senator De Bané: Professor, each of us is entitled to his opinion. We are in the realm of social science, which is not an exact science. However, I have to tell you, with great regret, that your answer is not one that has, in my opinion, any logic.
You say that the former government has tied the hands of that judge, and we have that decision because of bad government. Of course, we should not rely on the media, but you put that as one of your arguments. Maybe there are other cases that the media reported where, if the person has been there longer, that crime might not have happened. Then you say, ``Oh, yes, he has to apply the law. He is restricted to the evidence before him.'' You said I might be skewing the statistics. I quoted you the study commissioned by the statistics department of the Department of Justice Canada, paid for by the taxpayers of this country. It says that there is not enough evidence to support minimum sentencing.
I quoted the polling of the judges of this country, who, by a slight majority, opposed mandatory sentencing because it can have all sorts of unintended effects. The prosecutor will hesitate to prosecute because of the minimum sentence.
I understand you are not a lawyer. You rely on the media. You make suggestions which, in my opinion, in French we would say ``demagogique.'' With all due respect, I cannot follow your argument, particularly when you have criticized the judge without having read the evidence.
Mr. Mauser: I have a brief response. Most of my paper has nothing to do with the media. I believe the media is mentioned in one sentence. Clearly, the paper is based on government and police statistics, and not the media. As you say, we are all entitled to our opinions and I thank you for yours.
Senator Cowan: I have one point of clarification. I would like to address my questions to Professor Beauchesne.
Senator Stratton made a distinction in his questioning between impairment due to prescription drugs and to illegal drugs. My reading of the bill is that if you are impaired either by reason of overuse of prescription drugs or by illegal drugs, the penalty is the same if you are convicted.
What is your understanding of the bill in that regard, Professor Beauchesne?
Let me put it another way. It is my understanding that driving impaired would be a criminal offence under this proposed legislation, whether or not a prescription drug or an illegal drug is involved.
[Translation]
Ms. Beauchesne: You are right; theoretically, as the RCMP sergeant was saying earlier, there is no distinction about drugs in the bill. But it is clear — and I have read all the debates on this in Parliament — that whenever someone wants to give an example in support of the bill, they mention illegal drugs. I noticed immediately that only illegal drugs are mentioned. Whenever prescription drugs are mentioned, people start saying ``it depends.'' I very much liked Sgt. Martin's answer earlier; he was very clear that drug abuse is not even required, all that is required is that an individual have taken the drug and it caused sleepiness.
So my understanding is that this bill applies to prescription medication. Will it be enforced in this way? Every time I look at this, I see that illegal drugs are the ones being targeted.
[English]
Senator Cowan: Mr. Mauser and I had an exchange earlier, Ms. Beauchesne. We did not agree on a great deal. There are some ideological differences between us, which we can use to explain part of that. I put to him some studies to which we had been referred and some evidence that had been presented to this committee and to our companion committee in the House of Commons that indicated that longer sentences do not reduce crime and that there is a correlation between longer sentences and the repetition of criminal activity after the sentence has expired.
Do you have any comments on that from your own research?
Mr. Mauser: I take it you are addressing Professor Beauchesne?
Senator Cowan: Yes, I was. I thought you and I had exhausted our discussion on that.
Ms. Beauchesne: Would you repeat your question?
Senator Cowan: We had an exchange earlier and we disagreed on a great deal. We had been referred here and in the committee in the House of Commons to a number of studies which, to my reading, indicated that longer sentences and putting more people in jail, while they may reduce the ability of those persons who are incarcerated to commit crimes, do not reduce crime; that sentencing is not a deterrent; the apprehension of being caught is the real deterrent.
Ms. Beauchesne: Agreed.
Senator Cowan: As well, the studies indicate that generally as people are incarcerated for longer periods, they tend to reoffend because of the separation they have had from the community from which they have been taken. Do you have any comments on that general area from your own experience and study?
Ms. Beauchesne: I am a criminologist also and I have students working in the area of minimum sentencing. I am not the one who has given courses on that and compiled statistics. However, I was surprised to read the data.
If you take the global data, for example, and you have 20 violent crimes with arms and if you go into the detail and realize that 15 of them are from men who killed their wives, they are not a danger to society. They need to be punished, no question about that, but they will not commit serial crimes. If you continue reading, three of them have mental problems and they need to have treatment. You have two who are in gangs and they need to get out of there.
It is not the same, but when you hear the words ``violent crime with guns,'' what you hear is 20 young people ready to kill and you have to stop them. You cannot take global statistics like that to say the sentencing will deter them, without knowing each case specifically.
Second, as Senator De Bané was saying, the judge has these facts. He needs the capacity to say whether society needs to be more protected with treatment because the main goal is the protection of society. If the main goal is vengeance, we are in another world. That is an ideological argument and I will not argue with that.
If we are discussing the protection of society, it is not true that each case of the commission of a violent crime with a gun involves someone who is a threat to society for 20 years. It is more subtle than that. Each case needs to be analyzed. That is why you cannot make a correlation.
Second, to draw a correlation about sentencing without regard to the other variables, like socio-economic condition, age, family relations, participation in a gang, if a specific event occurred that year, those are elements that play a role. We teach students not to do that in the statistics course.
The Chair: Thank you both for being so patient. I have one last clarification to ask of Professor Mauser. I have been fascinated by your charts and tables.
On page 2 of your brief, you say that table 1 shows the direct monetary costs borne by the victims of property crime is $4.6 billion each year.
I turn, fascinated, to table 1. When I looked at table 1 and table 2, it seems that the costs of crime in table 1 actually repeated the same numbers given for 1996 in table 2. Does table 1 refer to the numbers for 1996?
Mr. Mauser: Yes, as well as 2005.
The Chair: The 2005 numbers are not about money; they are about numbers of victims, which are horrific. I am not disputing their pertinence, but I am talking about the actual costs.
Mr. Mauser: The costs are 1996 costs.
The Chair: When you said that the direct monetary costs borne by the victims of, in this case, property crime is $4.6 billion each year, was that just that you were making a straight extrapolation assuming that it was about the same every year?
Mr. Mauser: Since the number of victims has increased, the suggestion is that as a minimum estimate I am extrapolating stand-pat numbers. I think they are probably larger than that, but despite that I have tried to pick a smaller number to underestimate.
The Chair: That was in 1996.
Mr. Mauser: There may well have been some inflation since then.
The Chair: Let us try to strip out inflation for the time being, because that just muddies the issue even more. The Centre for Justice statistics told us that in 2006 the property crime rate per 100,000 was at its lowest point in 30 years; that is, lower than in 1996, so that the rate in cost would presumably also have diminished, even though in absolute numbers. I would agree with you, there are more crimes; they probably cost more, even after we remove inflation. However, in terms of the rate per 100,000 of the Canadian population, that is probably diminished too, would you not say?
Mr. Mauser: Yes. I see that I have erred that violent crime has increased in numbers and property crime has decreased. Property crime from 2005 has gone from 1.9 million to 1.2 million and it was violent crime that I was thinking the numbers had increased. That has increased from 254 to 354.
The Chair: I am taking you so much on faith that when you said it had increased I automatically went to that line and thought 1.9 is the most recent. It is not. That is the old number and we are down.
Mr. Mauser: That is right.
The Chair: I think I understand better now how we got all these numbers. Cost based on victimization survey, this is in table 2. Who did the victimization survey?
Mr. Mauser: A number of people. That is reported by Easton and Brantingham. That is a study I did not do, but I am summarizing for the committee. I do not have that information in the figure, but Easton and Brantingham report that, so I am relying upon them.
The Chair: We can find that if we need it.
You have been extremely patient and helpful. We are grateful and we are most appreciative of the work and the input you have given to us.
The committee adjourned.