Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 9 - Evidence for February 21, 2008 - Morning meeting
OTTAWA, Thursday, February 21, 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 10:08 a.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Welcome to the meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
We are continuing our study of Bill C-2, an act to amend the Criminal Code and to make consequential amendments to other acts.
It is our great pleasure this morning to welcome as witnesses from Public Safety Canada, Mr. Cliff Yumansky, Director, Corrections Programs and Community Development; Dr. James Bonta, Director, Corrections Research; and from the Ministry of the Attorney General of Ontario, Mr. Terrence Cooper, Assistant Crown Attorney.
I understand Mr. Yumansky will lead off.
Cliff Yumansky, Director, Corrections Programs and Community Development, Public Safety Canada: Thank you for inviting us to present here before you this morning. I will be discussing an initiative referred to as the National Flagging System, and my colleague Dr. Bonta will then talk about his work in research regarding the evaluation of this particular initiative.
I believe you have copies of my presentation. It should be available to you in both English and French.
The National Flagging System is a network of provincial and territorial officials, referred to as National Flagging System coordinators, who are responsible for identifying high-risk violent offenders for flagging purposes. Coordinators work closely with police, provincial corrections, Crown prosecutors and the Correctional Service of Canada to ensure that high-risk offenders who are flagged can be tracked through the Canadian Police Information Centre, known as CPIC.
Regarding the background for this initiative, the creation of the National Flagging System was publicly announced in March, 1995 by the then Solicitor General of Canada. The National Flagging System came into effect following a number of recommendations made by a federal-provincial-territorial task force on high risk offenders to FPT ministers of justice in the same year, in January 1995.
I have provided, I believe, a handout also of the recommendation that was contained in this report that refers to the National Flagging System as the original recommendation upon which this initiative has been developed.
Because of concerns regarding the relative ease with which offenders are able to move both within jurisdictions and, indeed, across Canada, the National Flagging System was developed to ensure that prosecutors are aware of the potential information held elsewhere regarding an offender's likelihood of a high and continuing risk of future violent conduct. This really is the key core advantage of this particular initiative.
There are three goals of the National Flagging System: one, to assist Crown prosecutors to more effectively prosecute high-risk violent offenders; two, to prevent high-risk violent offenders from falling through the jurisdictional gaps in the criminal justice system; and three, to encourage prosecutors to make dangerous and long-term offender applications in appropriate cases, essentially by tracking potential candidates.
Here is how the system works: An offender is placed on the National Flagging System if a review of the available information indicates that the offender is a reasonable prospect for a dangerous offender declaration or a long-term offender if he or she re-offends. Each province or territory has an assigned National Flagging System coordinator who accepts referrals to the system from local Crown counsel, police and/or correctional agencies. The coordinator then gathers and reviews information on the offender and makes the decision to flag an offender.
When the decision to flag an offender is made, the coordinator has the additional responsibility to communicate that decision and to exchange information with the police, Corrections, Crown prosecutors and other provincial- territorial and National Flagging System coordinators, when appropriate. The coordinators are therefore designated as contact persons on the CPIC system, the Canadian Police Information Centre system, and liaise with local police representatives to place flagged offenders on the CPIC database.
A candidate will be placed on the National Flagging System if a review of the available information indicates that if the candidate commits a further serious personal injury offence, or a SPIO, there will be a reasonable prospect that he or she would be declared a dangerous offender pursuant to section 753 of the Criminal Code, or 753.1 regarding long- term offenders. Factors to be taken into consideration for flagging a person on the system can either be offence-based or offender-based, or both.
Likely candidates include, for example, cases involving a previous unsuccessful dangerous offender application, a conviction for an offence that did not meet the dangerous offender, or DO, criterion of a SPIO, but where significant concerns exist as a result of other observations about the circumstances of the crime or the general pattern of behaviours of the offender, or a plea or sentence negotiation for a previous SPIO conviction.
When a flagged candidate is placed on the system, the National Flagging System coordinator is responsible for maintaining a file on the offender, including updating and reviewing the file as required. The flag, in fact, includes a brief reference to the offender as a possible DO candidate, and who to contact for more information. That is basically the extent of the flag.
When available, National Flagging System files should contain the following information: criminal record, psychiatric probation, pre-sentence and correctional reports, court transcripts, names and addresses of victim, and names of police officers and Crown prosecutors who have relevant information about the offender. Coordinators have protocols with the responsible CPIC police agency to ensure that CPIC-gathered hits or queries on the system on flagged offenders are communicated to coordinators. This, in fact, will help ensure that flags are not overlooked.
If a flagged offender re-offends anywhere in Canada, the National Flagging System coordinator should be notified through the CPIC system, and in that event the national flagging coordinator will send their file to the prosecution service which is handling the new charges. Coordinators will follow up with these hits or queries by communicating with the investigating police agency, the relevant prosecution service or the relevant jurisdictional National Flagging System coordinator.
Where are we today with the initiative? Since the creation was publicly announced more than 10 years ago, National Flagging System coordinators have now been appointed in every province and territory. Today we have more than 3,000 high-risk violent offenders who have been flagged by the provinces and territories, and in October 2006, the federal government announced its commitment to enhance its support of the National Flagging System. I am pleased to say that that funding process is now well under way.
Now I will ask Mr. Bonta to speak to the research findings of this particular initiative.
James Bonta, Director, Corrections Research, Public Safety Canada: Thank you for the invitation to speak to you about our evaluation of the first four years of the National Flagging System. Our study was conducted by me and my colleague Annie Yessine.
We began the research by asking what we thought were two important questions: First, are the National Flagging System coordinators identifying truly high-risk offenders? This may sound like a somewhat simplistic question, but we know from other studies that simply having evidence of a violent offence does not necessarily translate into a very dangerous offender in the long term. We also know from studies that sometimes good, experienced professionals fail to make proper judgments on the accuracy of future violence.
We wanted to first check out whether the people being flagged are truly high-risk offenders. The second important question that we asked ourselves — and this is perhaps the more important one — was: Does a National Flagging System somehow facilitate or increase the likelihood of successful dangerous offender or long-term offender applications? To try to answer those questions, we looked at the first four years where the National Flagging System came into play, up until the end of 1999. We selected 256 males who were flagged by the system. There was only one female who was flagged during that time. We collected this information from eight jurisdictions that were using the system at that time. The other five jurisdictions were in the process of developing and implementing their National Flagging System.
The other thing we did that was important to research was select a known high-risk group of offenders. These were comprised of dangerous offenders from British Columbia and Ontario, and detention failures. Detention failures are federal inmates who are held until warrant expiry. The Correctional Service of Canada views these people as dangerous. They are held until end of sentence and they are released and then they reoffend violently. Having this group of dangerous offenders in detention failures gives us assurance that we are dealing with a high-risk population. I will explain why this was important.
We conducted the research in three parts: One, we compared the flagged offenders, the 256 that we selected from that time period, compared their criminal, psychological, personal profiles with our group of known high-risk offenders, the dangerous offenders and detention failures. The expectation was that their profiles should be very similar, if flagged offenders are truly high-risk violent offenders.
The second part was examining the recidivism rates of flagged offenders. Once they are flagged, we follow them up for about three and a half years: how many of them commit new violent offences, new sexual offences. Once again, our expectation was that their rates of violent offending would be higher than normally expected.
Finally, does the National Flagging System increase dangerous offender, long-term offender applications? Here is what we found. Part one: Do the profiles of flagged offenders copy those of known high-risk offenders? Are they similar? For the most part, yes, they are. In particular, we scored a number of actuarial risk scales, evidence-based risk instruments, and we found that the flagged offenders score relatively high in terms of risk to re-offend.
When we looked at the recidivism rates of flagged offenders, we found that, in terms of violent re-offending, their rate was approximately twice as much as those of general federal inmates. We found that their sexual re-offending rates were four times higher.
What happens to flagged offenders in terms of dangerous offender long-term applications? When we followed the flagged offenders, we looked at the ones who recidivated violently, including a sexual offence. These are the cases that are suitable, potentially, for dangerous offender or long-term offender application. We found that about 18 per cent of them did receive a dangerous offender or long-term offender application, and almost all of them were successful.
You may ask if 18 per cent is high. What does that really mean? I will not bore you with the statistical modelling we did in this study, but 18 per cent was phenomenally high. When you look at violent offenders in Canada, you can take everyone who commits a violent offence and then recommits a violent offence, it is a little bit above the zero per cent likelihood. When you get an 18 per cent hit rate, that is quite good.
If I can summarize our answers to the questions, yes, it appears that the National Flagging System coordinators are truly identifying high-risk and potentially dangerous offenders. Second, it does appear that this system of flagging offenders facilitates and increases the likelihood of a dangerous offender or long-term offender application.
Where are we today? As Mr. Yumansky said in his introductions, the federal government is providing enhanced support to the National Flagging System coordinators. Our research department has made a commitment to conduct another evaluation of the program, because we just dealt with the first four years and not all jurisdictions were involved in that evaluation. Now all jurisdictions have actively running systems.
We are particularly interested in learning from our next research project how Crown attorneys are using this system more specifically to help them with dangerous offender, long-term applications, and also to help the National Flagging System coordinators better identify those who should be on the system and ensure that fewer people are missed.
Terrence Cooper, Assistant Crown Attorney, Ministry of the Attorney General of Ontario: Good morning. Thank you for the invitation to testify this morning.
My name is Terry Cooper, and I am an Assistant Crown Attorney, Counsel to the Director of Crown Operations in the East region of Ontario. I am not testifying as a representative of the Ministry of the Attorney General of Ontario. I am not testifying as to policy issues but, rather, to technical issues.
For the past seven years I have been involved exclusively — with some minor exceptions — in the management of dangerous and long-term offender application in the East region of Ontario. We have learned a great deal as to how this process can be moved forward in an efficient, effective and fair fashion.
The purpose of my testimony is to give you the unique context of sections 39 to 51 of Bill C-2. That context is what we refer to as Part XXIV of the Criminal Code, the nine sections pertaining to dangerous and long-term offender applications and breaches of long-term offender applications.
Part XXIV is not all about punishment. In fact, it is not about punishment at all. We have had cases — and I will not get into anecdotal issues — where offenders have admitted to filling a room this size with victims under 12 years old. We are not involved in a dangerous offender application to punish that individual for filling a room with victims. We are there to prevent him from filling another room with victims.
I should indicate at the outset that Part XXIV applications are Crown-driven. Normally, in the conduct of criminal law, Crown attorneys take what the police bring to them and prosecute those files. These files begin in the same way, but the Crown takes the decision as to whether, upon conviction, to apply for an application under Part XXIV. It is a Crown-driven process. Our target group is the worst of the worst offenders: Those who have harmed the most victims in the worst ways.
The target groups specifically that we aim for in the East region are those offenders causing intergenerational harm. They are not just affecting the victim but also the children of the victim or the parents of the victim, on a scale larger than a single victim. Part XXIV is the only time — it is unique in the Criminal Code — where the court is compelled to make the protection of the public the paramount sentencing consideration.
Section 718 and forward in the Criminal Code apply to the normal, traditional purposes and principles of sentencing. Those sections in a Part XXIV application inform the process and guide the process, but protection of the public is the paramount consideration for the court. That is the only time in the criminal law that that is the case. It is also the only time that we, in the administration of criminal justice, make an effort to lift the hood to see what is broken with the offender. We do not do it for bank robbers, murderers or anyone else. We only do it on a Part XXIV case where there is an opportunity to collect a wide range of information, assemble it in an intelligible fashion and present it to the court. Then the court can make an assessment, with the assistance of experts, as to the risk posed by this offender in the circumstances of the offence, or chain of offences, that brought him or her to this stage.
August 1, 1997 was the last time Part XXIV was amended. There were several amendments, one of which was to create the long-term supervision order process. The law moves slowly at times, so this is a new iteration in the criminal law. It has only been in the last five to ten years that the Crown and police have begun to develop the expertise needed to proceed with one of these cases. Up to that point, it would be a once-in-a-career situation: In a 30-year career, a Crown attorney might have carried out one dangerous-offender application.
Currently, in the East region of Ontario, where there are about 90 or less Crown counsel, I supervise over 30 Part XXIV applications at any one time. It may be getting closer to 40 as we speak because of breaches of long-term supervision order charges. What is new is that there is a coordinated activity involved in these cases. It is now a multi- ministry, multi-jurisdictional and multi-disciplinary exercise.
Police expertise has been developed over the years. In the East region — indeed in Ontario — the Kingston police have led the way. Traditionally, Inspector Brian Cookman was a pioneer in this regard, and he has taught many other police officers along the way. He is now in administration and Sergeant Laurel Munt is doing world-class work in assembling the necessary information for one of these prosecutions.
We are hopeful that in our own region we will soon have other police services dedicating 100 per cent of their officers' time to developing the expertise needed to gather the type of information that assists the experts and, in turn, assists the courts. Ideally, at some point the RCMP would be involved because quite often our offenders are from across Canada.
In terms of the mechanics, we begin at the bail hearing stage or the screening stage. We gather information concurrently as the process goes through the normal courts, at the preliminary hearing and the trial. While that is happening, we like to have a dedicated police officer who will begin gathering information on the previous behavioural history of the offender, not just criminal convictions.
My case management assistant, Mr. Luke Cam, has devised an electronic data management and analysis system that has proven invaluable in organizing this material and making sure we collect what we need.
Our very first stop is always the National Flagging System, and our last stop, when one of these cases is complete, is also the National Flagging System because our goal is to investigate, litigate and preserve in order to protect. When we finish a case, we encapsulate the data on an electronic DVD or CD, and that will be given to the National Flagging System so if the offender re-offends in Prince Edward Island, they will have all the information we have gathered. They are certified copies of information whenever possible.
In terms of a hearing, there are two things necessary. One is for the Crown to prove beyond a reasonable doubt a pattern of behaviour. It is not necessarily a pattern of convictions, but it can be a pattern of behaviour that was uncharged conduct. That is often the case. The Crown has to satisfy one of the four disjunctive tests involved in Part XXIV for a dangerous offender designation. That is the easy part. The reverse onus contained in Bill C-2 applies to the easy part of the exercise, in my respectful submission. The difficult part is assisting the court with the assessment of risk posed by the particular individual as well as assisting the court in devising a method to manage that risk in or out of the community, in accordance with the Corrections and Conditional Release Act. There is a gatekeeper role in the first step in that we only target a certain group of individuals who have proven to be, or are likely to be, ungovernable within the normal range of risk management and within the traditional sentencing paradigm.
The second step is virtually what every case I have ever been involved in turns upon, and that is the risk assessment step. The expert will use actuarial risk assessment instruments, many of which have been developed in Canada and used worldwide. Those instruments, in turn, require us to collect information that is relevant to what the offender was doing at about the time of puberty, for example. We are not talking specifically about criminal conduct. It is a wider range than that.
Typically, what used to be the case is that we devoted 300 hours of investigative work to every case and 300 hours of Crown preparation. That is relevant to the sentencing exercise within Part XXIV. With Mr. Cam's program, we have managed to cut that down by at least 150 hours because we have developed liaisons with our colleagues in the Federal Public Service to gather information from the CSC, the National Parole Board, within our own ministries and others in the provinces and territories.
The revisions to Part XXIV contained within Bill C-2 are extremely helpful, in particular the two that deal with long-term supervision order cases. When I speak of a number of Part XXIV cases on my plate, most are long-term supervision order cases, whether they were applying for a designation of the individual as a long-term offender or whether they were dealing with a breach of a long-term supervision order case.
The provisions that deal with mandatory assessments, for example, in section 43, are urgently needed. That will move us forward significantly because that is a tool that is not at our disposal at all for a breach of a long-term supervision order, and that is our most essential tool when dealing with a dangerous offender or a long-term offender application.
Also, for example, the serving of a two-year sentence with every long-term offender designation will be a significant improvement because often the dead time, so to speak, under section 719.3 of the Criminal Code has amassed to such an extent that we end up with provincial sentences and, of course, it is the federal CSC that must govern this individual for up to 10 years. Therefore, for many reasons I cannot go into within the time allotted here, a federal sentence is absolutely essential if the process is to unfold as it should.
The Chair: That presentation was extremely interesting.
Senator Andreychuk: Perhaps, Mr. Cooper, could you restate your last point, why the federal sentence is important? Are you linking it back to the assessment process, or is it the tracking process?
Mr. Cooper: I think the average — and I may not be 100 per cent accurate — but the average duration of a long- term supervision order is in excess of eight years. We are talking about a very long period of supervision, which will require meaningful conditions imposed by the National Parole Board in order to protect the public.
If the individual is given a federal sentence, that individual in Ontario will be sent to the Millhaven assessment unit where they will spend 70 to 90 days assessing the individual before deciding what to do next. That process is for a male offender. After that, there be will programming instituted. There will be psychiatric and psychological counselling and all sorts of assessments conducted. There will potentially be release on day parole and full parole. There will be the opportunity for statutory release or detention, as the case may be. All of these mechanisms of risk management that are available in the federal system are simply not available in the same robust form at the provincial level.
Senator Andreychuk: Are you saying that that is an element of safety? In other words, is it an element of safety for the public and also a treatment or an assist for the person under the order? Is that what you get in a federal system? At the provincial level, are you getting lesser options?
Mr. Cooper: Yes.
Senator Andreychuk: Therefore, more risk and less help?
Mr. Cooper: Given that we started off with picking the worst of the worst offenders, obviously risk management is our primary concern.
I should indicate, right from the beginning, the first thing we consider in one of these applications is the exit strategy. Within days of an individual being designated a dangerous or long-term offender, the CSC are at the local detention centre and the local jail interviewing the offender, looking for contacts and a support group, et cetera, and building the vast volume of information that the CSC works towards in determining how this individual can be first assessed as a risk and then what we can do to manage this risk.
At least in Ontario, that simply does not take place in the same robust fashion. There are some parole opportunities within the Ontario system. They are used far less frequently. The ability to assess individuals is not a 70- to 90-day process. Those 70 to 90 days are spent in the Millhaven assessment unit with individuals who do nothing else but those assessments. We have very specialized professional staff making these assessments day after day. That sort of thing does not take place in the provincial system to the same degree.
We have more tools in our tool belt with a federal sentence than with a provincial one. Bear in mind that the individual charged with supervising these individuals for perhaps eight years are federal employees who are used to the tools they see on their tool belt, not the other tools used in one of the various provincial or territorial systems.
Senator Andreychuk: So I am clear, you are saying the benefit of some of the changes that will be made will help you in the risk assessment? If we did not go the route of repeat and dangerous offender applications and if these people were just caught on an individual case-by-case basis, are you saying that they would probably go in according to the Criminal Code and come out according to the Criminal Code?
The advantage that you see of the repeat offender is that you are then starting to employ tools geared to that person and their risk needs, which is a benefit for themselves and for the security of society. However, does it go beyond them being incarcerated in that you are looking at what happens and how to manage them back into the community? Am I correct?
Mr. Cooper: That is absolutely correct. If the worst offenders can be managed in the community, that is what the system is designed to accommodate. The only dangerous offenders who remain detained absolutely indefinitely are those who cannot be managed in the community. There are at least two individuals who have been declared dangerous offenders here in Ottawa who have not reoffended, so the system worked. It is all about making the system work and giving us the tools we need to ensure that individuals come out into society posing a manageable risk.
Senator Andreychuk: One of the weaknesses of our criminal system is that people move from jurisdiction to jurisdiction, and so when we hear of a case in one province and then find out there was a criminal record in another province, the public has less trust in our system working nationally. The flagging system, you said, was up and running. Is it now truly fully national? When did that occur? The flagging system may be 10 years old, but the implementation certainly is not.
Second, you are looking at potential, and my concern is that maybe these people are not dangerous offenders. You are using some tools. Are we then trapping people who should not be there? That is of some concern to me, but more with respect to my other concern, is this information kept confidential to the people who need to know, which appears to be through the CPIC system, the police and the prosecutors? What assurances do we have that the system is not one that can track people as potential risks and do them harm if that information is misused for other purposes?
Mr. Yumansky: I may ask Mr. Bonta to comment on whether we are actually targeting the right individuals in the system. I will respond to the first part of your question.
While it is correct that the system was announced in 1995, it obviously did not begin as soon as the announcement was made. There was a phase-in period. One jurisdiction in particular, upon which the system is actually based, is B.C., and they had a very aggressive, successful, similar type of flagging system in place for years prior to the 1995 launch. In fact, as I said, many of the ingredients of the B.C. system were imported into the national system. B.C. was ready to go immediately. Other jurisdictions took longer but, by and large, by about five years later, virtually all jurisdictions were on board, with the exception today, perhaps, of the territories where there are still some gaps in service.
I know for a fact that a coordinator has been appointed in every jurisdiction. We meet basically every two years as a group. The federal government coordinates that activity, and we take stock of where jurisdictions are at in terms of the number of individuals flagged and how we are progressing as a nation, but I feel confident that we have a pretty vibrant system, and there is a lot of exchange between jurisdictions. The system is working. CPIC is an excellent tool. It was identified right from the beginning that this was the tool to use to ensure information about individuals who are flagged are known to other jurisdictions or within jurisdictions, so I feel quite assured that the system has become successful in terms of meeting its original goals.
The system is based on CPIC. Select numbers of individuals in the criminal justice system have access to that system. Protocols are in place to guide the use of the information. It is not publicly accessible. That is certain in my understanding of the system, so I feel quite confident that the information about these individuals stays within those that are operating the system — provincially, the RCMP and the police.
Mr. Bonta: I like the way you posed the question on are we perhaps trapping people who should not be there. You essentially asked the flip side of what I had in my presentation. Are we identifying high risk offenders? In general I concluded that, for the most part, yes.
I have spent my professional career doing research on risk assessment instruments. When we do risk assessments, there will always be error. We will sometimes correctly identify people who are violent, and we will make mistakes. We will identify people who really are not violent. What research and risk scale development is doing is trying to minimize the errors of gathering up those who should not be there.
No risk instrument is perfect; far from it, but we now have a considerable literature base indicating that actuarial risk assessments do better than professional judgments. When National Flagging System coordinators gather their information, they are also looking for these actuarial risk assessments and those results help make decisions as to who to place on the system.
Our next phase of research is trying to improve that process of identifying people better and making fewer of those errors, such as putting people on the system that perhaps do not need to be there. It is a continually evolving work.
Senator Merchant: Good morning. My concerns are with the group of people highly and disproportionately represented in admissions to all types of correctional services in Canada, and that is our Aboriginal Peoples. In Saskatchewan, my home province, in 2003-04, 80 per cent of those admitted to adult provincially sentenced custodial facilities, 80 per cent of those were Aboriginals compared with 10 per cent of the general adult population. Also, 58 per cent of Aboriginal people in Saskatchewan released between April 1, 1999, and March 31, 2000, were readmitted within four years, with approximately one half the readmissions occurring within the first year of release.
We have a very high incidence of Aboriginal Peoples in our correctional services. Who will feel the impact of these changes to our dangerous offender regime? Will it be the dangerous offenders or the Aboriginals? Will the Aboriginal people feel the impact of these changes more than the ordinary people?
Mr. Cooper: I am sorry; is your question addressed to me?
Senator Merchant: I am not sure who. You can all tackle it.
Mr. Cooper: Again, I am sorry I have to be anecdotal here as I do not have statistics, but the caseload that I deal with here in the Eastern region shows no disproportionately high representation that I have ever determined.
Senator Merchant: I have given you our statistics. How do you feel the dangerous offender regime will affect Aboriginals?
Mr. Cooper: Regardless of who the offender is, we are only interested in the worst of the worst offenders. We would have to have statistical information as to whether the percentage of Aboriginal First Nations people that you are speaking of were committing serious personal injury offences, for one, and whether there has been a pattern of behaviour that qualifies under Part XXIV as a basis upon which to make an application for a designation as a dangerous or long-term offender.
As I indicated earlier, at least in my own region, that is largely victim-driven. I am not so much interested in bank robbers or people doing commercial break and enters. I am interested in people who are victimizing generations of victims by their actions. It is a very targeted group. I cannot assist you in terms of who would be most or least affected, except to say that it will be the worst of the worst offenders and those who have demonstrated that they are ungovernable with normal sentencing measures. The fact that a certain percentage were readmitted within four years would not normally be indicative of the types of very serious offenses that I am concerned with, because they are often in jail for quite a long time when they are sentenced under the traditional provisions of the Criminal Code. I do not know whether that assists you.
Senator Merchant: It does not really, but I appreciate your opinion. I am only asking for your opinion.
There is a collective understanding among researchers that Aboriginal people live under generally different historic, social and economic conditions than the non-Aboriginal population. In 1996, legislators added a section to the Criminal Code that requires a court to consider this principle. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Do you take that into consideration, then? Would you think that you should take that into consideration?
Mr. Cooper: That would be one of many factors to be taken into consideration. Frankly, that is more for the court's consideration than one of the parties to the litigation.
I have been passed a note. I do not know if this assists you with the previous question, but we have one Aboriginal offender among the over 30 that we are currently dealing with in the East region. I do not know what that would be in a percentage.
Senator Merchant: That does not help me because I am talking about Saskatchewan.
Mr. Cooper: I appreciate that, but the sentencing consideration that you have indicated in the Criminal Code is certainly one that informs the process, as do the other provisions in section 718, the traditional principles and purposes of sentencing. All of those provisions inform the decision of the Crown whether to proceed. They certainly inform the decision of the judge as to what tack to take in imposing a sentence.
I should have mentioned at the outset that there is an incredible wealth of prosecutorial experience brought to each case with which we deal. It is reviewed by the trial Crown, who perhaps may only have had five years' experience, but it is then reviewed by his or her supervisor, who may have 20 to 30 years' experience, reviewed by me with about 20 years' experience, and by my supervisor, with about 35 years' experience. It then goes to our head office where three more lawyers deal with it, then to the assistant deputy minister, then the deputy minister and perhaps the Attorney General of the province. Thus, there is well in excess of 100 years of prosecutorial experience brought to each case, perhaps as many as 200 years, depending on the lawyers involved.
There are many points during the decision-making process where I, in particular, exercise a gatekeeper role. With our case load, of which I have spoken this morning, in the last month I have deleted two cases that had already been started into the process. For various reasons, I cut those two offenders and we are using traditional sentencing methods for those. It is a constant re-evaluation as we go through the process. The process itself takes many months to collect the information involved. When we finally come to review everything we have collected, we sometimes decide that this case does not merit an application under Part XXIV.
Senator Cowan: These question are varied and you can answer them as you like.
I realize this flagging system is in effect all across the country. You say that in the territories it is perhaps less well advanced, but is it fairly uniform across the country? Do you feel that, in the rest of the country, the system is working uniformly?
Mr. Yumansky: Yes. All provinces and territories have bought into the established criteria and protocols that have been set up from the beginning of the program. There are several jurisdictions that have decided that it would be worth their while to create a second tier or second level, an internal flagging system that is of use to only their jurisdiction, not across the system. They are not clogging up the CPIC system with those internal flagged offenders. They are at a lower level than you would normally find across the country.
Senator Cowan: In terms of the dangerous offender category, if I can categorize it in that way — and this follows along some of the questions that Senator Merchant was asking — can you give us statistics, Mr. Bonta, with respect to the percentage of men and women, of Aboriginals, of offenders with sexual offences, and in which guns were the delineating characteristic?
Mr. Bonta: First, in 2007, there were, in this country, 370 active dangerous offenders.
The Chair: Can you clarify that? Do you mean people who had been designated dangerous offenders and who were still under the force of that designation?
Mr. Bonta: Yes, exactly.
Senator Cowan: This is when?
Mr. Bonta: This is as of 2007.
Senator Cowan: That is a cumulative total; that is not for that one year?
Mr. Bonta: Yes, that is the cumulative total. They are still alive and living and under a dangerous offender designation. We had 427 if we go back right to 1978 designations.
I do not have the specific statistics in front of me, but our other research on dangerous offenders shows that the vast majority are sexual offenders, probably in the vicinity of 90 per cent. I do not have in this book that I brought with me the breakdown in terms of Aboriginal or non-Aboriginal. I can tell you that out of the 370 offenders, 29 came from Saskatchewan. I believe Correctional Service of Canada could provide the information as to how many are Aboriginal and how many are non-Aboriginal. They would have that information.
Senator Cowan: Mr. Cooper, what is the rate of success in your bailiwick of long-term offender applications?
Mr. Cooper: We make applications under Part XXIV for dangerous and long-term offender applications. The court is bound to consider three different sentencing avenues for one of these applications if we apply for desigation as a dangerous offender, and the court, in terms of risk assessment, has to first decide whether the Crown has met the criteria, and that is virtually always the case; and if that is the case, then the difficult work begins, and that entails the assessments of risk. The court must then make the decision, notwithstanding that the offender meets the qualifications of a dangerous offender, whether the risk that that offender poses can be managed in the community with a simple, determinative sentence, X years or X months; or a determinative sentence supplemented by a period of long-term supervision, which is simply that a long-term offender gets sentenced to X years or X months plus X years or X months supervision thereafter, after their warrant expiry date; or does the individual have to be given an indeterminate sentence, so that he will be released when the National Parole Board has determined that the risk that he poses can be, in fact, managed in the community. Every judge has to make that decision. It is one of three slots as to where the individual should be placed.
When we talk about the rate of success, the current caseload of 30-some cases does not take into account the cases that we have had from 2000 until now. We have had two cases that did not make it through the system that I did not pull, and several that I have pulled.
Senator Cowan: I understand the screening and gatekeeper system that you have described, but when the cases ultimately get to court, what is the success rate?
Mr. Cooper: I have only had two cases that were not successful.
Senator Cowan: So the success rate is high?
Mr. Cooper: Extremely high, because we are selective at the outset.
Senator Cowan: I understand that. Can I assume the kind of system that you have in Eastern Ontario is more elaborate than would be the case across the country?
Mr. Cooper: I cannot speak for across the country. I can speak for within Ontario. My supervisor, Mr. James Stewart, the director for this region, has permitted me and Mr. Cam — who is seated behind me — to engage in an unfunded pilot project for the last several years, in my case, and about a year and a half for Mr. Cam. In August, the premier announced that that project would be expanded to the other five regions of Ontario, and that process has begun this week.
Senator Cowan: I perhaps should not characterize it as success or failure, but I will. In terms of applications across the country, you have a high success rate, and that is probably due in part to the careful screening that goes into the cases before they get to court. Do either of you gentlemen have any sense of the success rate across the country?
Mr. Bonta: We conducted a research study in 1996 on dangerous offenders specifically. I would agree with Mr. Cooper that the success rate is very high because so much effort is put into it. They cross their Ts and dot their Is.
The Chair: Could I ask a supplementary to that? Mr. Cooper, how many applications do you make per month or per year? At one point you said you had 30 applications on the go in any month, but if you were bringing in 30 applications a month, then you alone would have accounted for all the people now in the system. How many applications do you actually bring?
Mr. Cooper: All of these applications to which I have made reference will be brought unless I determine, in my gatekeeper role, that they will not be brought, so we can assume we are going forward with the 30-plus cases that are in our system now. However, you have to appreciate that these cases sometimes take two years to get through the system.
The Chair: Is it one a month or three a year?
Mr. Cooper: Kingston has about 12 cases because of the high number of penitentiaries in that area. I would say we are doing six to twelve a year.
Senator Cowan: Mr. Cooper, the Canadian Bar Association has made a submission to this committee. While they support — as indeed we all support — initiatives to protect society and, in particular, to identify and segregate these dangerous offenders, the point they make is that the system within the existing legislation works well, and that offenders who do endanger the community are well dealt with under the current legislation, even without this three- strikes approach which is contemplated by this act.
In support of that, they make the point that the current legislative regime has been subject to thorough litigation; the constitutional parameters are well set out and the balance between the need to protect society and the requirements of the Charter are well understood and well established; and that if we now make changes, that will open the floodgates to new constitutional Charter challenges. They wonder whether that is a worthwhile consequence in order to get these changes.
They say that the number of cases would add to an already clogged judicial system and that, in their view, the resources that would be expended in that endeavour would be better focused if we were to spend that money on improved public safety measures. Do you have any comment on that?
Mr. Cooper: Yes, I do. The provision, colloquially referred to as the three-strikes provision, deals with that part of the process that I referred to earlier as one of the four disjunctive tests that get you into the threshold. The cases I bring forward are so far above that test that this has no effect at all on my practice of law, or the practice of law of any Crown counsel in the East region of Ontario, and I do not anticipate it will have an effect on other Crown counsel.
These cases are so much work that they will not be done unless they are necessary. In particular, because it is Crown-driven and we can control our workload, we can take that plea negotiation that is offered by the defence counsel or we can ask for a traditional sentence and be done in one day. These hearings can take three weeks on average, so we do not go through this incredible amount of effort unless the case merits it to begin with.
The reverse onus provision simply gets you in the door, in any event. Even if that was utilized by someone, that would just get you in the door through the threshold criteria. The difficult part is the risk assessment process.
The provision to which you make reference could potentially serve to raise awareness, generally speaking, and that is a good thing. It is a good thing that people, Crown attorneys in particular, are taking more interest in these processes and loading up their plate, which is something that is not done unless it is necessary. I do not anticipate there to be any floodgates because I do not think any Crown attorney will place it that close to the line that it would not qualify under the other criteria as well.
The reverse onus will not cause me to bring one more case to court, because I am fully aware of what is involved in one of these cases. What I expect that provision will do is raise awareness for Crown counsel all across Canada, so that they may be more inclined to take a second look and see if they want to load up their plate. I do not anticipate that adding to a clogged system.
Frankly, I was not aware of this situation. I started as a police officer in 1975 and I have been a Crown attorney since 1989. I was not involved in one of these cases until I took on an administrative role in 2000. One Crown attorney in Ontario, Rita Zaied, gave presentation after presentation in our educational system. That raised my awareness and, in turn, has been helpful in my own region.
It is a matter of getting people interested enough to take the load. It is the only time that we, as Crown attorneys, are engaged in preventive detention and in preventing crime. After almost 30 years in this business in one role or another, I am invigorated when I come to work because this is work that makes a difference.
Senator Di Nino: Let me deal with this three-strikes-you're-out provision. It has been referred to on a regular basis as such. I guess what we are trying to do here is suggest that it is like some of our neighbours down south. This is very much unlike that, and it is not anything similar to that. I would like to put that on the record, at least as far as my opinion is concerned.
Senator Cowan commented before he asked a question about the effectiveness of the legislation in helping you and the police community do their job. He did not ask the question specifically, but could you tell us where you think this legislation will be helpful to the policing community, to the justice community and to your specific job? How will this help you do your job?
Mr. Cooper: It will help me to do my job, as I mentioned in my opening remark, in that section 43, an amendment to 753.01, provides for a mandatory psychiatric assessment for a breach of long-term supervision order. This is a fresh area of law. Long-term supervision orders have only been around for 10 years. They are being used all the time now across Canada, but the courts are accustomed to dealing with breach of an order as a breach of probation or a breach of recognizance, and these are things where they garner a punishment of 30 or 60 days.
In 753.3, the breach provision for long-term supervision orders is a whole different situation and means that that judge has to learn everything that the judge at the original Part XXIV hearing knew, and then also learn what has transpired from that date to this date. What are the red flags that caused this offender to reoffend and endanger people? If the offender, for example, poses a heightened risk when he is drinking, the fact that he has been charged with breaching his long-term supervision order to not consume alcohol does not mean a 30-day sentence. It means he has demonstrated that the risk he poses has escalated because those are circumstances that are a catalyst for his re-offence. That has to be taken back to square one.
What was his risk at the time that he was designated a long-term offender, and how has the risk changed? It often has been lowered because the offender has gone through the system with the CSC and received programming and training and has proven himself on various forms of incremental release, but if he or she has reverted back to the circumstances that have proven to result in offences in the past, then we have to get right on that and reassess the risk, and that can involve a sentence of up to 10 years.
The important part here is that, in certain circumstances, we can have a reverse onus dangerous offender hearing, which seems pretty rational or reasonable in any event, but until it was articulated in Bill C-2, it was a submission that I would have had to make as a Crown. Now, if this bill is passed, it will be stronger than that. Those provisions dealing with the long-term supervision order scenarios are very helpful, given the fact that the individual will be serving a federal sentence in every case and that when they breach, or if they breach, and over 30 per cent of them do breach, we will be in a position to have another psychiatric assessment to lift the hood and see what has transpired in the interim. In certain circumstances, if they breach, we are into a reverse onus dangerous offender hearing. Those three provisions in particular are of enormous help to the administration of criminal justice dealing with the worst offenders who harm the most victims.
Senator Di Nino: Mr. Cooper, I was struck by your commentary that one of the first things you look at, when you are looking at a dangerous offender designation, is an exit strategy. That is something I had not heard before put into those terms. That, combined with the comment you made about the community management or management in the community, leads me to believe that obviously everything possible is being done to be fair in an assessment and to have real justice in effect when dealing with potential dangerous offenders. Could you focus on those two points and give us further clarification on those two points?
Mr. Cooper: Crown attorneys, in their daily role in courts, perform a quasi-judicial function in many cases when making certain assessments and determining whether there is a reasonable likelihood of success or whether to withdraw charges, so that sort of function is not uncommon to Crowns. In dealing with Part XXIV, this is the least adversarial work I have ever been engaged in as a lawyer. We make a point of gathering every piece of available information that is helpful or non-helpful in terms of the Crown's position. We are not the trial Crowns. Another trial Crown is moving this case forward and he or she who will be making the arguments at the end of the day. We are facilitating the gathering of all the relevant information for the court's consideration, and it is considered by the Crown expert and by the defence expert. In virtually every one of these cases, two experts are involved. Of course they often come to slightly different conclusions. We gather absolutely everything and strive to get the original evidence.
By the time I get involved in this process, they are convicted, so they are an offender and no longer an accused by the time I finish the process, and anything that can assist with the analysis of the risk posed is valuable information. We make a point of gathering all of that and presenting it in a completely objective fashion. All of this is disclosable, and all of it is preserved indefinitely when it goes to national flagging. The defence counsel and the offender do not want a derivative police report when there could be a transcript of what actually happened on conviction in 2001. We dig and dig. If we kept records on the worst offenders with the same fervour that we do the worst hockey players, we would be well suited to proceed with one of these cases, but unfortunately that is not a situation that we encounter.
The Chair: Time is starting to creep up on us here, so I would suggest that we tighten up on questions and responses.
Senator Di Nino: My next question is for Mr. Bonta or Mr. Yumansky, and it deals with the programming offered to federal offenders to facilitate their reintegration, et cetera. I would like to ask either one of you, or both, if you wish, to clarify whether or not offenders are obliged or required to take programming, and how many of them refuse to take programming. Would you have that information?
Mr. Bonta: I would not have that information. I am in the Department of Public Safety in corrections research, and Correctional Services Canada has another research unit. They may be able to answer your question.
Mr. Yumansky: It is my understanding that there are officials from Corrections Services Canada appearing this afternoon. That would be a perfect question for them to answer.
[Translation]
Senator Chaput: I want to be certain I understand the national flagging system. The system came into effect in 1995 on the recommendation of a joint federal-provincial-territorial justice task force, and it has 10 coordinators across Canada. The main concern was related to the ease with which offenders could move across Canada, as well as the need to make information accessible to crown prosecutors. In 2006, the federal government announced its commitment to enhancing its support.
When do you identify high-risk offenders, before or after their incarceration? If it is before, on what basis are they put in the system? Are they in the system for life or does there come a time when they are no longer in it?
[English]
Mr. Yumansky: The best way for me to respond would simply be to indicate, yes, in 2006, the federal government did in fact proceed with an announcement to fund the National Flagging System. The funds basically are at the level of $500,000 per year and this was essentially to enhance the existing program across the country. There was, I would say, just generally speaking, an unevenness in terms of the kind of commitment to the program, depending on the jurisdiction. The added funding that is now being provided will allow all jurisdictions to be brought up to a level where we could say that they are actively pursuing this initiative now. That is the hope we have with this system, so the funding is very much welcome.
Ideally, you are correct: the file gathering is really essential and helpful, as Mr. Cooper has indicated, in preparing the file, for example, in the case of pursuing a dangerous offender application. Obviously, for the most part, this is preceding; it is file gathering that precedes incarceration.
As to whether they are on the system for life, you must understand that it is not information readily available beyond the circle of individuals and professionals who work in that particular system: Crown, police, corrections officials. That information is not available to anyone else who is working outside the system.
Senator Chaput: It is not public information then?
Mr. Yumansky: Absolutely not.
[Translation]
Senator Chaput: They are therefore always in the data bank, which is not accessible to the public, it is restricted. Now, does Bill C-2 support an initiative like yours? Are there any parts of the bill that serve to support the national flagging system? Or are there any parts of the bill that could hinder the initiative?
[English]
Mr. Yumansky: My answer will be short. Mr. Cooper may want to add a comment or two as well because I know he is familiar with the National Flagging System as well, and he is working frontline with respect to dangerous offender applications.
I think the way we need to look at the National Flagging System is that this is an important tool to assist the justice system, particularly Crown prosecutors, police and corrections, that is complementary to the legislation. In fact, it was announced at the time that Bill C-27 — which preceded Bill C-2 — was introduced by this government. From an operational perspective, I view it very much as another tool that is very much complementary to current legislation.
The Chair: I have a couple of questions; one and a half perhaps for you, Mr. Cooper. You indicated that you were pleased with the proposal to diminish the threshold sentence level down to two years, but I would assume that this would mean that there was, at the very least, a greater chance of scooping up people who are perhaps less dangerous than the ones who had the old 10-year threshold. Will you be scooping up people who were less dangerous than those who, under the present system, would be scooped up? As a semi-corollary to that, what do you think will happen to the number of cases that you are likely to bring under the new regime, compared with the 30-odd that you have on the go right now?
Mr. Cooper: The minimum sentence of two years simply affords us a greater protection in that the tools that CSC is accustomed to, which are excellent, will be available to them to develop and try and manage the risk in the institution and, thereafter, in the community. However, the two years is simply a clarification of the legislation in 1997 that pertained to long-term offenders. It was the intention at that point in time, clearly, that the punishment of two years would be warranted. The courts subsequently interpreted that to include dead time, or pre-sentence custody. That is what has whittled away the two years. I believe that was the intention of Parliament in 1997, and now it is reiterated more explicitly, so that will presumably be the practical effect of what happens with the long-term offender designation in the future. That corrects a weakness in the 1997 legislation. It will not affect who is scooped up, so to speak, in terms of the case load.
I do not anticipate that anything in Bill C-2 will direct my attention to less serious offenders. We simply do not have the capacity to deal with an infinite number of these. The Attorney General of the province reads virtually every one of these applications. We cannot bring 50 a year, I do not think, so we will be selecting the worst of the worst. We will forecast our scarce resources to provide the most protection for the resources available.
The Chair: Do you see any increase?
Mr. Cooper: Not particularly in my jurisdiction because, as I said previously, it is mostly a raising of awareness situation, and we are already fully aware.
Our increase in our jurisdiction will be because of the breach of long-term supervision order cases. These have just come in. They will be our new biggest challenge. I had three in a two-week period last month. That will increase our workload. Now that a full psychiatric assessment is available, we will be gathering a lot of information for these breach charges when they come forward.
The Chair: In regard to the National Flagging System, I want to thank you for mentioning psychiatric assessments because one thing that struck me was that this system gathers together an enormous amount of information about people, and some of it very personal information. Particularly notable are the psychiatric evaluations of which Mr. Cooper spoke in his investigations, such as going back to check behaviour in one's early teens when the person in question may now be 45 or 50, for all I know.
What are the privacy safeguards in this system? It is a national system. Once someone in Eastern Ontario is in the system, I assume the information is now available across the land. What are the privacy safeguards? Has the Privacy Commissioner examined the system or been consulted about the system?
Mr. Yumansky: I am not sure whether the Privacy Commissioner has been consulted about the system. I believe that there may be in existence in each of the provincial jurisdictions privacy legislation which would dictate how the information is to be shared. I understand that not everyone, even in the police community, can just do a check on the system and get information. They must go through the holder of the file, who is the provincial coordinator, and the check has to be for legitimate purposes under the National Flagging System. There is no legislative base for the National Flagging System, that is correct, but the access to it is quite limited in terms of the purposes expressed in the National Flagging System.
The Chair: I must have missed something following your initial description. A serious case is brought: At what point does someone check or seek to check the National Flagging System to see if this person has already been flagged?
Mr. Yumansky: If there is a query on the CPIC system with respect to whether an offender has committed an offence —
The Chair: The flag will pop up?
Mr. Yumansky: That is right.
The Chair: The flag will pop up but not the supporting information?
Mr. Yumansky: No. What will appear on the flag will simply be the name of the person to contact and the fact that there exists information about that person.
The Chair: The gatekeeper then becomes the local coordinator; provincial or territorial?
Mr. Yumansky: Exactly.
The Chair: I see. It becomes a little clearer to me. Thank you very much.
Senator Merchant: I think I got part of my question, because it was specific. When you said that 29 of the 370 people were from Saskatchewan, we can assume — because of the population in our institutions — that a high number of those people must be Aboriginal people. I think that should be a concern to us all. It seems to me that the system is harsher on our Aboriginal Peoples because of their circumstances.
I mentioned to you some of the compelling evidence that our Aboriginal Peoples are not able to deal with our system. Thank you very much for that number. That is fine for now, unless you have something to add.
That was a high number because we have around 1 million people in Saskatchewan, and you said that 29 out of the 370 people on your list were from Saskatchewan. I think that is a very high percentage.
Senator Stratton: It has been a very interesting presentation, and thank you. I have learned a lot from the information you provided us this morning.
I was struck by the fact that, despite the difficulties that the individuals have of dangerous offenders and repeat offenders, the success rate appears to be really high when you take them through this program. I am happy to hear that we are still trying, despite all, to bring these people back into society. That is the end objective, no matter who they are and what they have done. That is really good to hear.
It is more a statement, and if you want to comment on that, fine. In the end, that is the bottom line I like to hear.
Senator Di Nino: To follow up on the statistic that was presented to us which, frankly, I was not only unaware of but was surprised by, am I correct that I heard that 90 per cent of dangerous offenders are related to sexual offences?
Mr. Bonta: I am not sure of the specific number, but it is very close; probably between 80 to 90.
Senator Di Nino: Fair enough, it is still a staggering number.
Mr. Bonta: Yes. The vast majority are sexual offenders.
Senator Di Nino: You are talking about 370 dangerous offenders and approximately 90 per cent would be sexual offenders. That is a unique problem.
What role does mental health play, if any, in the reason that these offenders are committing the offences? Do we know that?
Mr. Bonta: In general, mental health factors are relatively minor predictors of violent behaviour and criminal behaviour. Even having a major mental disorder such as schizophrenia or manic depression is a very low predictor of violence.
Senator Di Nino: That is interesting. It is an issue that some day we should look at. Obviously these are not normal human beings that commit these crimes.
The Chair: If that is a low predictor, what about high predictors? Give me one or two examples of high predictors, if you would.
Mr. Bonta: The four best predictors of criminal behaviour, if you only have four questions to ask: Lengthy criminal history; antisocial personality, which means impulsiveness, poor self-control; having criminal friends at the expense of any pro-social friends; and cognitions, attitudes in favour of criminal behaviour. The evidence is quite clear those are the four best predictors. Mental health variables are close to the bottom of the list.
The Chair: As Senator Di Nino said, we could keep you here all day. With every question it gets more interesting. We cannot do that. We thank you very much for the assistance you have brought and the time you have given us. It is very helpful as we continue our study.
We are very glad to welcome Mr. Andrew Murie, Chief Executive Officer of MADD Canada (Mothers against Drunk Driving); and, from the Traffic Injury Research Foundation, Robyn Robertson, President and CEO. Have you decided which of you will go first?
Andrew Murie, Chief Executive Officer, MADD Canada (Mothers against Drunk Driving): I will go first.
As you said in your introductions, I am the Chief Executive Officer for MADD Canada (Mothers against Drunk Driving). I have been in that capacity for the past 11 years. Despite the gains that have been made on the issue of impaired driving between 1980 and 1999, the progress in Canada has now stalled. In fact, when you look at the year 2005, and the statistical information that we have, we actually see an increase in the percentage of alcohol-related deaths.
Impaired driving remains the largest single criminal cause of death and impaired driving takes a disproportionate toll amongst young Canadians. For example, 16 to 25 year olds constitute 13.7 per cent of the population, but 32.1 per cent of Canada's alcohol-related traffic deaths in 2003.
MADD Canada regards Bill C-2 as a major step forward in addressing many of the weaknesses in Canada's existing federal impaired driving laws. Given the time available, I will limit my oral presentation to the drug-impaired driving provisions and the narrowing of the Carter and last-drink defences.
Regarding drug impaired driving in Canada, the Centre for Addiction and Mental Health has reported the rates of driving following cannabis use have been increasing. Such conduct is now common among Ontario high school students. For example, in a 2005 survey, 14 per cent of licensed Grade 10 to 12 drivers reported driving within an hour of consuming two or more drinks, while 20 per cent reported driving within one hour of using cannabis. That shows us that cannabis use among youth has exceeded the drinking and driving. In one sense, we have driven home the message on drinking and driving with youth, but they have switched drugs. We need this Bill C-2 provision.
Moreover, 22 per cent of Grade 10 to 12 students report being in a vehicle driven by someone who has used drugs prior to driving. They are not only taking liberties of using drugs and driving but also getting into vehicles as passengers when the driver has been using drugs.
A similar study in Atlantic Canada in 2005 shows that 15.1 per cent report driving under the influence of cannabis, whereas 11.7 report driving under the influence of alcohol. This is Ontario; this is Atlantic Canada. The material from Manitoba holds the same as well. Statistically, this is fairly consistent right across Canada.
Students who drove under the influence of cannabis were twice as likely as cannabis-free students to report being in a collision. Not only do we have the use, but from the Atlantic Canada survey we are now getting data that shows it has an impact on collision rates as well.
There is no doubt that cannabis and other drugs do affect driving performance. While the exact causal role of various drugs in crashes requires more research, it is clear that drug use constitutes a significant traffic safety problem. For example, a Canada-wide study estimated in 2004 that drug use alone, or in combination with alcohol, contributed to approximately 368 traffic fatalities, 21,702 traffic injuries and 71,276 property-damage-only crashes. The author estimated that the total cost of these drug-related traffic crashes might have been as high as $3.55 billion.
These statistics are of particular relevance for young drivers because this group has the highest rates of illicit drug use in fatal crashes per kilometre driven. Moreover, the recent increases in drug use and driving among young drivers make the enactment of Bill C-2 essential.
I will now talk about the Carter and last-drink defences. The Canadian courts have interpreted the Criminal Code in a manner that results in evidentiary breath and blood test results being thrown out based solely on the accused's unsubstantiated denial of impairment. In the absence of the test results, the charge of impaired driving with a blood alcohol concentration level above 0.8 per cent is invariably dropped or the accused is acquitted. In many jurisdictions, the threat by defence of a Carter defence results in many section 253(b) charges being plea bargained down to either a highway traffic offence or a motor vehicle act offence.
The current federal legislation and the courts' interpretation of these defences have created insurmountable barriers to efficient enforcement and prosecution. National and provincial surveys have documented police officers' growing frustration with loopholes in their increased reluctance to lay impaired driving charges. This sense of frustration may help explain why Canada's charge rate for impaired driving offences per 100,000 licensed drivers was only 39 per cent of the American rate in 2003. These defences do not exist in other jurisdictions and they bring the administration of the criminal justice system in Canada into disrepute. Indeed, some Canadian defence counsel boast openly about their ability to virtually get any impaired driver acquitted. For example, in a newspaper article entitled ``How Big Bucks Can Beat .08,'' one Saskatoon lawyer bragged about having never lost more than one of his 50 or more impaired driving trials per year, while another claimed to have achieved a string of 28 consecutive acquittals. Another lawyer includes glowing client testimonials on his website from impaired drivers who have escaped criminal responsibility through technicalities. One thankful client is quoted as saying, ``My readings were very high, so I thought I was dead in the water. My lawyer said he would help me stay out of jail and possibly get off on a technicality. That is exactly what happened.''
The courts do not throw out drug analysis, fingerprint evidence or DNA samples based on an accused's unsubstantiated claim or denial. Surely, victims of impaired driving are no less deserving of protection and respect than victims of other violent crimes. Bill C-2 will narrow the Carter and last-drink defences and help ensure that the .08 offence is enforced and prosecuted as Parliament originally intended.
The proposed amendments would also bring Canada's .08 offence into line with the law in comparable democracies. MADD Canada strongly supports the changes to the Carter and last-drink defence.
Robyn Robertson, President and CEO, Traffic Injury Research Foundation: To give you some background, the Traffic Injury Research Foundation is a not-for-profit road safety institute. We have been around since the mid-1960s. We are primarily a research organization and we do a lot of work in the area of impaired driving. I am a criminologist. I spend a lot of time working with police, prosecutors and judges in probation both in Canada and the United States on the issue of impaired driving.
Today, we would like to thank the committee for the opportunity to come and speak about Bill C-2. We will provide some information in the area of drug driving based on our research and then we would be happy to answer your questions.
I am sure many of you know that drugs and driving is a much more complicated issue than alcohol-impaired driving. There are several shortcomings in the available evidence and there are different interpretations of the scientific evidence. As such, it makes the field somewhat controversial and certainly confusing. There are a number of important reasons why we do not have good information on drugs and driving. It has a lot to do with the limitations in terms of science. Generally, you need much larger sample sizes to do studies on drug-impaired driving because the incidence of drug use is much lower in the general population. Refusal rates tend to be high. The National Highway Traffic Safety Administration in the U.S. completed a roadside survey looking at alcohol and drug impairment asking for samples from drivers. Their refusal rates tended to be higher. Generally, when you do roadside surveys for alcohol, you get anywhere from a 90 to a 95 per cent participation rate. In the U.S. they got 80 per cent compliance for both, 67 per cent compliance for saliva, and only 42 per cent compliance for blood. Because your refusal rates are higher, it is harder to get good information.
Intrusive testing procedures, the methods of collecting, storing and analyzing the samples also have implications for the analyses and affect the results. Certainly, more elaborate and expensive analyses are needed. There is a much broader range of drugs to be tested for. If you look at poly drug use and designer drugs, it is a growing field. Again, in the survey that was done, they had to keep expanding the number of drugs they were testing for because of what was being found.
The timing of testing is certainly important because the speed with which drugs are eliminated varies. The correlation between drug levels in the blood and impairment is low and unreliable for certain kinds of drugs. As I said, there is a wide variety of drugs, there are different populations of users and you find that certain drugs are more prevalent among some types of drivers. The pharmacodynamics, or effects of the drugs, differ among users and, again, testing for the presence of drugs is very complex.
We do have an extensive body of experimental literature that looks at the effects of drugs on driving, and we know that many drugs affect various driving tasks but we do not have a lot of reliable information on the frequency with which drivers use these drugs because either we cannot get them to participate in surveys or because testing rates for fatally injured drivers are relatively low.
Generally, our most reliable estimate is that about 10 per cent of drivers are using impairing drugs, meaning prescription drugs, over-the-counter medications as well as illicit drugs. Of course, marijuana is the most commonly reported and detected drug. We generally see it in the young male driver population, as Mr. Murie stated.
More important, the extent to which drugs are a causal factor in motor vehicle collisions is unknown due to the difficulty of measuring drug use by drivers, the large number of drugs and the difficulty in developing research designs to allow us to measure these things.
As some of you may know, our organization conducts public opinion polls on various driving issues. We have looked at the issue of drugs and driving twice, once in 2002 and again in 2005. These surveys were done under funding from Transport Canada, the Brewers Association of Canada as well as Toyota Canada. We asked people about the prevalence of drug use and driving, about the level of concern they have with regard to drug driving, as well as their support for various enforcement measures.
Generally when we look at the 2002 and the 2005 results, we see that there is an increase in drug driving in Canada. In 2002, our study looked specifically at prescription medications, illicit drugs and over-the-counter medications. Our 2005 study focused specifically on marijuana.
In 2002, if you look at all drug use, an estimated 3.7 million Canadians admitted to driving after taking some kind of medication or drug that could potentially impair their ability to drive. That is about 17 or 18 per cent of licensed drivers. The most commonly used drugs were over-the-counter medications. About 16 per cent admitted to using these drugs and then driving. Considerably less frequent is driving after using prescription medication with about 2.3 per cent of the respondents, marijuana at 1.5 per cent and illegal drugs at less than 1 per cent. Prescription drug use is obviously more common among older individuals, whereas illicit drug use and marijuana use is much more common among younger drivers.
Polls indicate that the number of drivers who report driving a vehicle within two hours of using marijuana in the past year is increasing. This is not just substantiated by our own studies but studies done by other organizations in Canada as well, which Mr. Murie mentioned.
Our poll specifically showed that in 2002, 1.5 per cent of drivers reported using marijuana. This increased to 2.1 per cent in 2004, and then 2.4 per cent in 2005. We are seeing steady increases in the use of marijuana and driving in the Canadian population. That works out to about a half million drivers driving under the influence of marijuana, which is in comparison to about 1.5 million Canadians who have admitted to using alcohol when they thought they were over the legal limit and drove.
What is also generally seen from the research is that frequently marijuana is combined with alcohol use, which again makes studying the problem more challenging. About 70 per cent of drivers in our survey admitted to using alcohol as well as marijuana. This is comparable to what you see in other studies that have been done. The combination of drugs and alcohol is prevalent. This has important safety implications. We know that drugs can impair the ability to drive, as does alcohol, and we suspect that the effects of combining the two are additive or multiplicative. Therefore, it is a substantial issue.
We also asked the people who admitted to driving after using drugs to tell us about themselves. We found that users are different from non-users in several ways. Users of marijuana are typically younger and more likely to be male. They are unmarried and live in urban areas relative to non-users.
We also found that marijuana users are more inclined to be risk-takers in their driving. They will take risks when driving for fun, are more likely to speed or to have received a traffic ticket, and are more likely to have been involved in a collision than non-users.
Of greater importance, we also see that concern about the drug-driving issue is increasing in Canada. In 2002, we asked the question regarding concern, and about 77 per cent of the population said that this was a very important issue. In our 2005 poll, it went up to 87 per cent. The vast majority of the Canadian population is very concerned about the drug-driving issue.
However, there seems to be much greater concern for young drivers using drugs and lower concern for older drivers using prescription medications. Concern was only 60 per cent for older drivers using prescription medications.
There was strong support for the enforcement of drug-driving laws. Of course, you see less support among marijuana users. They have less support for enforcement actions, including testing drivers who cause injury, for drugs, tests of physical coordination if drugs are suspected, and tests of bodily fluids as well as spot checks. Not surprisingly, those using drugs are not particularly supportive of enforcement measures, but the vast majority of drivers who do not use drugs are supportive.
We are pleased with Bill C-2. We think it is important that the drug-impaired driving issue be addressed. Certainly, there is strong concern among Canadians, and from what we know with respect to drug use and driving, there is cause for concern.
As an organization, we encourage the higher testing of fatally injured drivers, which is one of the main limitations that we have in drug-driving research. Our testing rate for alcohol is high. Almost all fatally injured drivers are tested for alcohol but very few are tested for drugs. That can range anywhere from about 20 per cent of drivers who are tested for drugs in Alberta and 80 per cent who are tested in Saskatchewan. Across the board, we see different testing rates, and it is important that jurisdictions be encouraged to test more drivers in order to give us better information.
The DRE program holds promise for enforcing drug-driving laws. We would also like to encourage that similar attention be given to the prosecution and adjudication of drug-driving cases.
We recently completed a national survey of Crown attorneys and defence attorneys on the issue of alcohol-impaired driving, and there is certainly concern about the drug-driving issue and the ability of Crown attorneys to prosecute the cases as well as the ability of judges to adjudicate. Education is required if we want to see the successful prosecution of cases all the way through the system and see positive outcomes at the end.
Certainly, in drug-impaired driving, cases will be more challenging to prosecute. With the complexities of scientific evidence, some of the gaps in knowledge I think have the potential to open doors to challenges by defence attorneys, so it is important that we ensure that the prosecution of these cases will be strong.
As a last comment, we would like to encourage jurisdictions to give consideration to the provincial sanctions already in place for impaired driving and how the drug-impaired convictions will be reconciled with alcohol-impaired convictions.
Senator Stratton: Thank you for appearing today. It is much appreciated.
I would like to get into the topic of marijuana use. With that many drivers on the road, is it an attitudinal thing, on the part of people who smoke marijuana, that they are okay behind the wheel? If you smoke cigarettes, you are okay behind the wheel. Is the attitude the same for marijuana use?
Ms. Robertson: I would say it is probably a factor. We know even with alcohol- impaired driving, those who admit to driving after drinking repeatedly do not think they pose a greater risk on the road. I think it could be true for marijuana-using drivers as well; they do not see themselves as being impaired or understand that they are impaired.
Generally, what we have seen from the research is mixed results. Some of the studies show decrements in terms of driving performance, whereas others do not show any effects at all. I think the science is still out, but the attitude that they are not impaired is certainly a factor.
Mr. Murie: I would comment on the behavioural piece and relate it back to alcohol. It was only 25 years ago that drinking and driving was an acceptable activity. It was something where most people drank and drove, and I think we are in the same frame with cannabis. Not only must we do the research, but we also need to have a number of public awareness campaigns to educate the public, especially young people, of the potential dangers of cannabis and driving, just like drinking and driving.
Senator Stratton: In the presentation by Ms. Barr-Telford, director of the Canadian Centre for Justice Statistics, she talks about the rate of cocaine offences having increased since 2002 and peaking in 2006. Do you have any knowledge of the different drug effects? For example, if you take cocaine and get behind a wheel, is there a substantial difference or enhanced danger as compared to, say, alcohol or marijuana?
Ms. Robertson: They have not done as much research on stimulants. Most of the research is focused on cannabis and benzodiazepines. For stimulants, they have not seen any effect on driving performance. It is something that is difficult to test and measure.
Senator Stratton: It is too early. The science has not yet caught up.
Ms. Robertson: The science is really not there yet. Generally, with stimulants, you are more alert and pay attention a little better, but I do not know for what sustained period of time, if any.
Senator Stratton: You would think those drugs combined with alcohol would make you a higher risk-taker, just by the nature of the two combined.
Senator Campbell: I have to preface my questions with background. I spent 32 years as a police officer and coroner, so I have seen the first-hand devastation of impaired driving.
My questions are more related to how we answer people who have these types of questions. Do you know what the incidence is of the use of the Carter defence and the two-beer defence? Do you know how often it is used and how successful it is?
Mr. Murie: There was a survey done by the OPP and Toronto police in their area, and for a number of months they monitored the number of cases they brought before the courts. The Carter defence is used a lot more than the last- drink defence. The last-drink defence tends to be used on issues more when there is death or serious injury. Even though it is used less, it is done in that circumstance. They found that about 50 per cent of their cases were being lost because of the Carter defence.
Ms. Robertson: It is probably higher in some jurisdictions. We did a national survey of Crowns and defence attorneys on the issue of impaired driving, and we asked specifically about evidence to the contrary. When that defence is used, anywhere from 50 to 100 per cent of the time it is successful. It is probably the most significant problem in the prosecution of impaired driving cases, next to constitutional issues.
We find that the last-drink defence is more common in western regions while the Carter defence is very popular in Ontario and Quebec. We find that evidence to the contrary is not much of an issue at all in the Atlantic region, so there is certainly disparity, but there is a unanimous feeling that it has a detrimental effect on the prosecution of impaired driving cases. One of the Crown attorneys that we had spoken to said it is comparable to saying, ``I did not commit the murder so the DNA must be wrong.'' That is what they are up against.
Senator Campbell: Perhaps you could give us a summary of the Carter defence.
Mr. Murie: This is where an individual appears before the court, and there is an Ontario case, Clarke, 2005. He was pulled over on a R.I.D.E./Sobriety Checkpoint with clear signs of impairment — in fact he almost hit the officers at this checkpoint — and given a roadside screening test, failed that, had two readings on a Breathalyzer at 146 and 144. I do not know how big Clarke was, but let us suppose he is a 200-pound man. That is about 12 standard drinks to get a 146, just to give you an idea. These readings were taken probably two hours after the time he stopped drinking.
Thus there was the physical evidence, there was the Breathalyzer evidence, and when it got to court, what happened is that the accused would say, ``I only had two drinks that evening.'' They would bring friends to say: ``I was with them all evening, and that is all they had to drink.'' The defence then introduces a toxicologist who says, ``If what the accused is telling you is true,'' as a qualification to their expert testimony, and say, ``given the size of that gentlemen, then their BAC would be well below the .08 BAC.'' Thus, evidence to the contrary.
There is legitimate evidence to the contrary: Was the Intoxilyzer or the Breathalyzer properly maintained and calibrated? Was the person who took the test on that accused properly certified and trained? All those questions, if the police have not done that part, are legitimate and it should be thrown out as evidence to the contrary; but the way it has taken off with Carter is ridiculous. So that is what happens, and in many of these cases the judge says ``I do not really believe the accused'' but the fact that the accused introduced evidence to the contrary means that the case is simply thrown out.
There is another piece that is important with Carter and groups like us and TIRF, who have worked hard over the years to put in rehabilitation treatment and countermeasure programs based on a conviction of impaired driving. Even though we talk about 50 per cent, the number could be higher. Many of these are plea-bargained away. In Ontario, it is routine to get a conviction to a careless driving offence. They lose six points and get a $1,000 fine but continue to drive, and all those countermeasure programs like treatment and ignition interlock are not used, and then, when they come back into the system, they are treated as a first-time offender. It is wrong.
Senator Campbell: I want your opinion with regard to the marijuana. Do you think it is possible that young people today realize the risk of drinking and driving but, until the DREs started in, thought that there was no real risk of impairment due to, for instance, marijuana? Do you think that is one of the reasons why we see this higher incidence of alcohol impairment versus drug impairment because there was no way of recognizing that in a substantial scientific way?
Ms. Robertson: You mean that they are switching?
Senator Campbell: Right.
Ms. Robertson: There is anecdotal evidence to suggest that they have figured out that we can catch them for alcohol impairment but that drugs are harder to detect.
Senator Campbell: It would be safe to assume that with the DRE program we should see a substantial increase? If the statistics are correct, we should see a substantial increase in the number of people arrested for impairment by marijuana?
Mr. Murie: Not necessarily. If it is properly done and young people become aware that police have that power, what happens is that the incidence of that activity drops, and so then there is this false impression that all of the sudden the courts will be overwhelmed with drugs and driving charges. That will not happen.
Senator Campbell: I was not suggesting that. I was suggesting that there will be a rise once the recognition is there.
Mr. Murie: In all these things there is a small blip on the enforcement piece to get the message out there and, you are right, there is then a significant drop.
Ms. Robertson: As many of them are using alcohol and drugs, the prosecution will be for the alcohol charge because it is a lot easier than doing the drugs analyses.
Senator Campbell: In my experience, if you find cocaine and/or heroin, and/or almost any other drug, invariably you will find alcohol in the mix.
Senator Cowan: Senator Stratton and Senator Campbell have covered the points that I wanted to raise.
It strikes me that because of the work that your organizations and others have done to raise public awareness of the dangers of drinking and driving, people are more aware and more cautious than they once were. However, part of the puzzle with respect to drugs and driving is exactly that prolonged education part. I am not discounting the enforcement part, but we should not lose sight of the public education role.
I would like your comments in terms of support from governments. This is not just a federal government issue; all levels of government have a responsibility, and as well perhaps the private companies who are manufacturing at least the prescription drugs and over-the-counter medications that are contributing causes to some of these offences. Are you getting the response that you would like to get from those sectors of our society in support of the public education and public awareness component of this problem, leaving aside the enforcement part?
Ms. Robertson: Obviously, we have interest at the federal government level because we are seeing important pieces of legislation move forward. Also, among the Canadian Council of Motor Transport Administrators, drug-driving is also an important issue. We are seeing provincial governments take an interest in the issue. Some jurisdictions are moving forward with much broader traffic safety campaigns. Certainly, organizations such as ours and others have promoted the message that drug-driving is an important issue for Canadians.
From pharmaceutical companies, we have seen a little less support and interest. It has been difficult to get them to come to the table. This is something we pursued a few years ago and obviously there is some hesitancy there to recognize the problems. More needs to be done in that area. However, we need continued and sustained efforts in terms of education and making people aware that drug-driving is dangerous and something we should not be doing, and getting that message out there.
Mr. Murie: I would comment and relate it back to Bill C-2 that, as you are aware, this is the fourth time a bill of this nature has been before the federal Parliament. A lot of information on public awareness has been on hold because one of the key pieces to that is that if you do this, here are the ramifications of what might happen. Not having that piece there to include has groups such as ourselves and provincial governments waiting for the federal legislation so that we can enshrine this in our awareness programs. The police are a very important aspect of that public awareness.
When we go out to the public and speak with young people, most of the time police are part of the presentations. There is a victim perspective and an enforcement perspective, and it is very effective. As you can see, without the enforcement piece there on drugs, it is difficult to do that type of presentation.
Senator Cowan: At the end of your submission, Ms. Robertson, you say that consideration must be given to how provincial sanctions currently in place for alcohol-impaired driving will be applied to drug-driving offenders. What were you driving at?
Ms. Robertson: Most jurisdictions have ignition interlock programs that, upon conviction for an impaired-driving offence, you must have an interlock. An interlock does not do anything for drug-driving, so would drug-driving offenders also be required to get an interlock, even though it would not prevent them from driving while impaired? Those are the types of issues.
Senator Di Nino: My questions are related to the prescription drugs issue. We had Sergeant Martin from the RCMP training area and Mr. Prokopanko from the Canadian Society of Forensic Sciences. There has been some concern expressed that prescription drugs potentially should be looked at differently.
Before I ask my question, I want us to remind ourselves that Sergeant Martin explained the 12-step procedure to identifying potentially impaired drivers. In effect, the use of either the Breathalyzer or the DRE would only come after an officer who has been well trained — and he spoke about this training — has identified impairment, so they covered the question that maybe he is not impaired. The DRE process really starts when an officer is convinced that impairment exists.
I would like your comments on the concern that some people have expressed about treating prescription drugs in the same way as illicit drugs.
Ms. Robertson: I do not know if I have an answer for you on that point.
Senator Di Nino: Do you think that is the case?
Ms. Robertson: We need to keep in mind that prescription drugs are legally prescribed by a doctor. The issue is that people do not necessarily follow the directions of the prescribing physician. Maybe that is an area for concern, but I do not know if we should be treating them in the same fashion for that reason. I do not have an answer for you.
Senator Di Nino: As a follow-up to my question to you, would you not think that impairment is impairment, whether it is by one means or the other? That is the issue with which we are dealing here.
Ms. Robertson: I am not saying that people who take prescription drugs should not be sanctioned if they are driving while impaired. More education would be required on the part of doctors, in terms of articulating what the parameters are for taking those prescription drugs. With some over-the-counter medications we have seen better labelling, recommending that people not drive.
I do not have an answer for that question.
Mr. Murie: That goes to the education piece. A lot of times the medical doctor or family doctor prescribing these medications has a history of the patient so he or she might know the patient has a problem with alcohol or might be a constant prescription drug user, and at that time it is important, as Ms. Robertson said, to step up the warning, that ``You know this could be a potential Criminal Code offence of impaired driving if you put yourself in that situation.'' Again, a lot of information could go a long way in helping this issue.
You must remember that when one is picked up for either alcohol or drugs impairment, most of the observations are not done at sobriety checkpoints. Seventy per cent of people charged with impaired driving are picked up at random police stops, and they are showing gross signs of impairment in their driving. Whether that is due to the ingestion of prescription drugs, illicit drugs, alcohol, or potentially a combination of all three, each of those will be dealt with on an individual basis at that point in time.
Senator Di Nino: Bill C-2, in effect, gives the police and the peace officers the authority now to demand a drug test. Today, drug tests are conducted only if the person being interviewed voluntarily agrees to one. Thus Bill C-2, in effect, will give authority to the police to demand a drug test, whether voluntary or otherwise.
Do you think that is an appropriate provision that should be in the legislation?
Mr. Murie: Absolutely. I will explain why. As I said earlier, even before the police officer has picked up the person, he or she has shown gross signs of impairment on the road. They have then been given a roadside test for alcohol, and if alcohol is not the cause of impairment, the police can proceed with a DRE at that point. Then they walk through the 12 steps of the drug recognition evaluation, and only with positive results of that 12-step test do the police ask for a sample.
It is very different from the situation you are raising, where the police officer says: ``Give me a drug test.'' There are a number of things that happen before that drug test is requested by the police officer. It is not a random type of testing by the police officer. I think the right precautions are there for drugs, just as we put the right precautions there for alcohol: the officer has to have a reasonable suspicion before they move to the approved screening device. Even when the police have those two elements, they move to an approved instrument.
I think what we have done with the DRE and drugs and driving is very similar to what has been an acceptable practice for alcohol.
Ms. Robertson: I agree with Mr. Murie. We do see an escalating standard, so there are certainly grounds for proceeding and finally getting to the point where the police test bodily fluids. We have had a number of indicators before we get to the point where we are making that demand, so I think it is reasonable.
The Chair: I would like to come back to Senator Di Nino's earlier question about impairment. The discussion this morning with the example of cocaine brought to mind testimony from a couple of interesting witnesses yesterday, and also the problem that has been agreed on by many people, that we have so much less information about threshold levels at which impairment can realistically be assumed to occur for substances other than alcohol, the number of which just grows and grows.
We had a criminologist before us yesterday who said basically that what we should be focusing on is not the consumption of illicit or licit substances, it is impairment; that they are two different issues. Listening to you this morning, I found myself thinking again: Realistically, should we not be focusing more on a more accurate determination of impairment rather than whether someone has a miniscule blood level of cocaine, when we do not even know if cocaine, in fact, impairs? Could you comment on that?
Ms. Robertson: We certainly need a lot more research evidence in terms of impairment. As I said, there are a number of reasons why we do not have that information. We have decades of research on alcohol. Alcohol is a consistent drug in that it is absorbed and eliminated and there are certain measurable parameters, whereas for drugs, we really do not have that information at all. Therefore, making any type of determination with regard to impairment can be challenging. I wholeheartedly agree that we need much more evidence with regard to impairment due to drugs and what those levels of impairment are. However, in terms of the technology and the testing procedures, we are not there yet.
The Chair: The argument was that one can be impaired by a host of things, not just consumption of drugs: fatigue, stress, you name it. Stress is probably stretching it a little. If someone is a menace on the roads, is it not perhaps more logical and more feasible to spend your time focusing on how to determine whether, at that moment, someone was in fact impaired in some way when they were driving, rather than building endless data banks of data that we do not yet have, and rather than endlessly proliferating numbers of legal and illegal drugs? Do you see what I am getting at?
Ms. Robertson: Yes.
Mr. Murie: During the observation at the roadside, there are a number of steps that a police officer goes through to observe that impairment on many different levels. It is fine to drink alcohol, but when you drink alcohol at a level that puts others at risk, that is impairment, and that is a Criminal Code offence. That is what we need to focus on: When you use a drug or alcohol, or a combination thereof, are you putting others at risk? We know that alcohol accounts for about 40 per cent of the fatality rate, and we do not even have the drug numbers for that.
You are right: there are other contributors in addition to alcohol and drugs. The person could be fatigued or talking on their cell phone. However, if you just focus on alcohol and drugs, the 50 per cent figure is not an unreasonable percentage of the almost 3,000 fatalities we have on our roads that are related to that, and I think it merits a Criminal Code offence and I think it merits that attention.
The Chair: I understand. I was not, in fact, disputing the current system with relation to alcohol, because it has been so widely tested. Chemically, what we are looking for is a single substance. The evidence has been accumulated over decades. We are dealing with a known quantity there. It is all the rest that is not known.
Do you remember, Mr. Murie, when you caught me aback by stopping before you got to the end of your brief and I was so flustered?
Mr. Murie: Yes.
The Chair: I was flustered because on page 10 you recommend two additional changes to the current statutory presumptions and framework for demanding samples. I will not walk through them all; everyone has the brief.
I was not clear on whether, in your brief, you are recommending that we amend this bill or whether you are saying that these are changes that should be made at some future date, probably sooner rather than later.
Mr. Murie: I think it is important that Bill C-2 pass without any further amendments right now. The federal justice committee is also looking at another review of impaired driving.
The Chair: You mean the House of Commons committee?
Mr. Murie: In the House of Commons. I presented there last week. There will be a number of stakeholder-type opportunities to get together. Though those two amendments that we originally presented to the House of Commons Justice Committee are important, I think at some point in time we can pick those things up, especially the taking of the sample by other than medical doctors, will play itself out as Bill C-2 is implemented and we see various things that we need to improve upon as time goes on.
The Chair: Finally, your frustration with the Carter defence in particular is clear and, heaven knows, understandable. However, under this bill, is it not at least conceivable that the pendulum has gone as far in the other direction in that the only defence you as the accused can offer depends on your ability to prove a malfunction of the equipment? Without going all the way back to Carter, where I, unsupported, can claim, ``No, no, I did not do any of it,'' and all other evidence is thrown out, would you think it feasible to have a middle ground that would allow accused persons to bring other relevant, provable evidence in their defence?
Mr. Murie: I would say no.
The Chair: Why not?
Mr. Murie: The original Carter case was related to a blood sample that was not labelled properly. That is evidence to the contrary. That is legitimate. That is like the Breathalyzer not being calibrated right or the police officer not being properly trained. Those abilities to bring evidence to the contrary will still exist, going forward.
You must remember that the person who is using Carter has shown clear signs of intoxication at the roadside, so the officer had a reasonable suspicion to ask for a roadside test. They failed the roadside test. They failed two evidenciary tests. All of that is sophisticated equipment. If all of that is true and properly done then, as in every other democratic country, you will probably be found guilty of impaired driving. That is why the offence is in the Criminal Code. That was the original intent of Parliament. There does not need to be a halfway point in that.
The Chair: You did not actually answer my question, but you did make your position clear.
Senator Campbell: Would you agree that we know so much about the effects of alcohol because it is legal? We can buy it. We have been able to study it for years. We do not have that capability with the other drugs. I am not getting into drug legalization here, but we do not have that capability. The offence was possession of the drug, not the impairment that may be caused by it. Would you agree that that is sort of where we are here because of the incidents? Also, there is the fact that all drugs are metabolized differently by our bodies, and we know with alcohol that you will get rid of 0.015 an hour, no matter who you are. My question is, should we be putting more money into the scientific study of, for instance, levels of THC, marijuana or levels of cocaine and the legal derivatives that we use medicinally? Should we be putting money into that so that we can actually determine levels of impairment, or is it simply enough that, through the DRE process, we can recognize impairment?
Ms. Robertson: I would agree that we definitely need more research in terms of impairment with the drugs. Part of the reason for that weakness is that the technologies are not there, and there is a lot of poly-drug use. I would certainly agree that we need more research in quantifying what drugs and how much impairment, but I think the DRE program already provides us with good indications of impairment.
Mr. Murie: I would support something Ms. Robertson said earlier. Money needs to go into the testing at the coroner stage. If there is a dead driver from a traffic crash, then we need to test to know if it is alcohol, drugs or poly use.
Senator Campbell: We do that.
Ms. Robertson: We do not do it consistently. Testing rates among fatally injured drivers for drugs are very low; as low as 20 per cent, in some jurisdictions.
Senator Campbell: In British Columbia, as a matter of course, we run a full drug screen.
Ms. Robertson: That is not done in all jurisdictions.
Senator Campbell: That surprises me.
Ms. Robertson: It is a function related with what type of crash has taken place. It surprises us too, but we work with most of the coroners' offices and generally, if they do not have cause to test for drugs, they do not.
Mr. Murie: In some jurisdictions, if there is not a bag of cocaine sitting on a person's lap, they are not tested for drugs. We have been able to make progress with alcohol because we have the numbers and the proof. We know what percentage they make of the traffic crashes, deaths and injuries, so we can recommend good policy, good counter- measures and good legislation.
The DRE part of this is really good evidence to get a guilty plea in a criminal justice system, but it does not help much on the research or what we can do to lower those numbers in the future. I think you need to have both.
Senator Oliver: The Chair asked you a question about Bill C-2 and the Carter defence, Mr. Murie, and you gave a response. At the end of your response, the Chair said that you did not answer her question. I have looked at your brief, and your brief says on page 9 that:
Bill C-2 will significantly narrow the Carter and last-drink defences, and help ensure that the 0.08 per cent offence is enforced and prosecuted as Parliament originally intended.
On the next line, you say:
The proposed amendments would also bring Canada's 0.08 per cent offence into line with the law in comparable democracies.
Does that not state your position, and is that not the answer you tried to give to the chair?
Mr. Murie: Yes.
The Chair: In fairness, I did say he had made his position very clear, and I was grateful for that because that is useful information.
Senator Oliver: I heard you say that he had not answered your question.
The Chair: I went on to say that he had made his position very clear.
Senator Oliver: Anyway, the answer to the question is that Bill C-2 does go a long way, and you would like to see it passed?
Mr. Murie: Absolutely.
Senator Oliver: And you agree with the language in the letter from your president to that effect?
Mr. Murie: I do.
Senator Oliver: That letter is part of our record.
The Chair: I thank Senator Oliver for drawing our attention to that portion of your brief because it had piqued my attention at the time.
Do you have, Mr. Murie, information in summary form that you could give us about the law in comparable democracies? Would that be readily available?
Mr. Murie: Yes, we do have it and could provide to the clerk within a day or so that information looking at Australia, New Zealand, Ireland, Great Britain and the U.S. and various other countries.
The Chair: If you could do that, that would be terrific.
Mr. Murie: You must understand that when we go to international conferences and talk about the Carter and last- drink defence, they laugh at us because they have never heard of it and it sounds so ridiculous.
Ms. Robertson: I work with district attorneys in the United States, and they are stunned, shocked and amazed. Just given how they tend to be more lenient at times in the U.S. in terms of what types of challenges are available, they are absolutely stunned that the Carter defence would be permitted.
The Chair: I think they may not be the only ones.
The other study that you referred to, Ms. Robertson, was a survey of Crown prosecutors. Could we have that?
Ms. Robertson: Yes. It is in draft form and is currently going through the approval process. We surveyed a little over 1,000 Crown and defence counsel from all the jurisdictions. As I said, we looked at evidence to the contrary. We have submitted a draft report to Transport Canada and to the Canadian Council of Motor Transport Administrators, but we can make a copy of that draft report available to you, I am sure.
The Chair: That would be extremely interesting for us to have.
Thank you both very much indeed. You have been knowledgeable and very helpful to us.
The committee adjourned.