Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 36 - Evidence - February 15, 2018
OTTAWA, Thursday, February 15, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, met this day at 10:34 a.m. to continue its study of the bill.
Senator Serge Joyal (Chair) in the chair.
The Chair: Welcome, everyone. I am pleased to note that Chief Mario Harel, President of the Canadian Association of Chiefs of Police, is with us today. Welcome, Mr. Harel. We are pleased to have you with us this morning. You are a familiar figure for us, and we are delighted that you’re here. Accompanying Mr. Harel is Chuck Cox, Chief Superintendent and Co-Chair of the CACP Traffic Committee.
Welcome, Mr. Cox.
We will also have the opportunity to hear from Lara Malashenko, Legal Counsel of the Ottawa Police Services. Welcome, Ms. Malashenko. Later this morning, we will have the opportunity to hear from Ottawa Police Service representatives.
Welcome. You know the procedure. I would like to remind our viewers that we are studying Bill C-46, a bill that is related to drug-impaired driving. That’s why we have with us this morning representatives of the police forces in Canada.
We should also have later on, through video conference, Mr. Tom Stamatakis.
Mr. Stamatakis is the spokesperson for the Canadian Police Association.
On that, Mr. Harel, please go ahead with your opening remarks.
Chief Mario Harel, President, Canadian Association of Chiefs of Police: Distinguished members of this committee, as President of the Canadian Association of Chiefs of Police, I am pleased to be given the opportunity to meet with each of you again today and share the association’s position.
As the senator introduced my two colleagues, they will be available to provide some expertise on this very important issue for specific questions.
Our presentation today does not substantially differ from what we stated at the House of Commons Standing Committee on Justice and Human Rights in September 2017. The primary difference, however, and it is significant, is that we are only five months away from July 2018, and we must obviously face some issues in terms of time.
We certainly commend the government for its commitment to consultation of stakeholders and the public. We commend the efforts of ministers, all parliamentarians and public servants at Public Safety, Justice and Health Canada who are dedicated to bringing forward the best legislation possible. All share with us a desire to do this right, knowing that the world is watching us develop both bills, including Bill C-46, which we are dealing with today.
We acknowledge that the government has put forward strong legislation not only focused on impairment by drugs, but also addressing ongoing issues related to alcohol impairment.
Steps that have been introduced to reform the entire impaired driving scheme are seen as much needed and very positive. The CACP has called for such changes in the past, specifically in support of modernizing the relevant provisions of the Criminal Code, supporting mandatory alcohol screening and eliminating common “loophole” defences. Tough new impaired driving penalties introduced in this legislation are strongly supported by the CACP.
Our role from the beginning has been to share our expertise with the government to help mitigate the impact of such legislation on public safety. Extensive discussions within the CACP membership and various committees formed the basis of our advice. We participated in a number of government-held consultations and provided a submission to the federal task force. Members of the CACP were also involved in the oral fluid drug screening device pilot project.
We produced two discussion papers, entitled CACP Recommendations of the Task Force on Cannabis Legalization and Regulation on February 8, 2017, and Government Introduces Legislation to Legalize Cannabis on April 28, 2017. Both discussion papers can be found in our submission.
The observations we are providing here today are not intended to dispute the government’s intention of restricting, regulating and legalizing cannabis use in Canada.
There is no doubt that the primary concern of policing in Canada is impaired driving. This is a significant issue today. It is our belief that it will become an even greater issue with the legalization of cannabis. Today, we are five months away from legalization.
It should be noted that we have 65,000 police officers in Canada who require training to understand the new legislation, once passed into law. Recently, we received confirmation that Public Safety Canada and the RCMP have committed to undertaking the development and delivery of information and training materials for all Canadian law enforcement.
As has been indicated in previous testimony, there remains much work to operationalize the use of oral fluid drug screening devices. It includes confirmation that devices meet the standards as established by the Canadian Society of Forensic Science Drugs and Driving Committee, recommendations to and approval by the Attorney General of Canada, procurement by each police service and then training. That’s a fairly major challenge.
We also acknowledge federal funding to support law enforcement for cannabis and drug-impaired driving. Eighty-one million dollars has been allocated to the provinces and territories to support the implementation of this bill over a five-year period. How these funds will be allocated through the provinces and into municipal police services hands remain unclear. As such, a police service, for the most part, is unable to budget for training, purchasing of oral fluid drug screening devices and capacity building to train front line officers in standard field sobriety testing and as drug recognition experts. There are many unknowns that make it challenging to identify the costs of legalization.
We appreciate the work that the Federation of Canadian Municipalities is doing in this area in terms of assisting us to understand what the real costs might be. It’s an ongoing job.
We clearly require many more officers trained in standardized field sobriety testing and as drug recognition experts. Quite frankly, the capacity is currently not there to deliver the amount of training required in the short term.
We are heartened by comments that have been made in terms of developing Canadian-based training for our officers. We continue to ask the government to come forward with a commitment and details to develop Canadian-based training for our officers, including reducing or eliminating the reliance on the practical training portion that is predominantly only available in the United States. We are involved with Public Safety Canada and Drug Free Kids Canada in developing and delivering public messaging and educational tools, and trying to drive home the message that alcohol and/or drugs and driving don’t mix.
This represents just a snapshot of what confronts law enforcement as we move forward. We remain hopeful that many of these issues will be clarified and/or resolved over the coming months — laying the groundwork needed to support effective and efficient enforcement of these new laws. As I have stated in the past, we are crossing new territory. There are many questions and few answers. Like each of you, we want to see this comprehensive legislation implemented successfully and recognize that “doing it right” is more important than “doing.” We all have a responsibility to mitigate the impact on public safety. That is our foremost goal from a policing perspective.
There is no doubt that operationalizing the enforcement regime around drug impaired driving will challenge both the capacity and work of police officers. Police in Canada will do everything in our power to deliver on the public safety objectives that Canadians expect of us.
Sincere thanks are extended to all members of this committee for allowing the Canadian Association of Chiefs of Police the opportunity to offer comments and suggestions on Bill C-46. We look forward to answering your questions. Those are my comments, Mr. Chair.
The Chair: Thank you, Chief Harel.
Ms. Malashenko, do you want to make some remarks to open the discussion this morning, or will you just receive the questions?
Lara Malashenko, Legal Counsel, Ottawa Police Services, CACP Law Amendments Committee, Canadian Association of Chiefs of Police: I would prefer to receive the questions. I don’t know if anyone has any questions from a legal standpoint. We have addressed some of the concerns in the CACP working paper that was submitted to you.
I don’t know whether anybody has had an opportunity to review that, but there are some issues we put forward in terms of expressing some of the concerns pertaining to, for example, the oral fluid device screening devices. We spoke of the per se limits. There were a number of issues. If anybody has any particular questions, I would be pleased to answer.
The Chair: Thank you.
Senator Boisvenu: Good morning, Chief Harel, Mr. Cox and Ms. Malashenko.
It was Chief Bates of Saint John, New Brunswick, who told the House of Commons that, in 2018, he thought he could train two police officers in the province to use the devices and, according to his statement, he will be able to train two more. So, there is really a problem in this province with respect to the availability of specialized officers.
We also learned yesterday that the government has not yet decided what type of device will be used for police forces. We are even being told that the choice could be made as late as April. That leaves only May and June to train police officers in Canada. You spoke of challenges. I would say it’s more than a challenge; it’s almost impossible to train all these police in less than two months. You mentioned 15,000 police officers.
Mr. Harel: There are 65,000 officers in Canada.
Senator Boisvenu: How do you define this challenge?
Mr. Harel: Senator Boisvenu, there are two pillars that challenge us.
In terms of road safety, there are a number of new provisions that will come into effect, and we will have to train our police officers based on these new provisions. We are currently facing the reality of drug-impaired driving. You will have the opportunity a little later to meet the expert from Gatineau, who has been trained since 2008. There is a pool of police officers who are trained because it is not a new reality. The new reality is that we expect the legalization of cannabis to bring an increase in cases and the need for police to be much more vigilant in detecting impaired drivers. We are well aware that, in July 2018, more than 600 police officers will be trained as drug recognition experts. There is a challenge regarding sobriety tests by movement coordination experts. We are fully aware that we won’t be 100 per cent ready come July.
Senator Boisvenu: Wouldn’t it be appropriate for the committee to recommend that this legislation be passed when the police give us the green light by saying, “We are ready, you can pass the legislation”? There is a risk of an operational void for young people, 18 to 34, the biggest consumers. We have seen in the statistics, and the number of charges has almost doubled in recent years. Wouldn’t it be appropriate for the bill to pass when you tell us you are ready?
Mr. Harel: I don’t know if it’s our role, Senator Boisvenu. We will take all possible means to be as ready as possible. As I mentioned earlier, there is a reality with drug-impaired driving. Canada has nearly 600 trained officers. The École nationale de police du Québec has doubled its capacity to be able to train drug recognition experts. Steps are being taken right now to pick up the pace. There are pilot projects in the west as well. We will be ready as much as possible, and this is a process that will take several months to be optimal.
Senator Boisvenu: Ms. Malashenko, there is one problem on the horizon, namely, the difference in regulation between Quebec and Ontario. Quebec will allow consumption in public, and Ontario will ban it. What are you going to do for French tourists who will be partying in a park in Gatineau, use cannabis, cross the bridge with a joint in hand and arrive in Ottawa, where it is forbidden to use in public?
Ms. Malashenko: That is certainly going to be a problem for Ontario given the discrepancy between the laws. We’re going to have to address that, absolutely. We recognize that that is going to be an issue. Members from Gatineau, for example, who come over to Ontario are going to have to abide by the laws as prescribed in Ontario. They will have to be made aware of the laws, and the same goes for those crossing over into Quebec. We certainly acknowledge that that is an issue, so there is going to have to be education and awareness of both laws.
Senator Boisvenu: We may see “No smoking” signs showing a cannabis cigarette in a red circle.
Mr. Harel: At the moment, Quebec municipalities are wondering whether they will ban it or not, given that they have the power to do so. Gatineau is no exception and is evaluating the relevance.
Senator Boisvenu: That’s another challenge.
Mr. Harel: It is indeed another challenge.
Senator Dupuis: You alluded to the fact that some police services would have bought detection devices, but my question is about police chiefs. Did the concerns of police chiefs vary depending on whether they worked in a rural municipality, a larger municipality or in an urban community? Because we have been told that, according to the statistics, impaired driving would be more relevant to rural communities.
As for the preamble of Bill C-46, you talked about a reality that has existed since 2008 with regard to arrest and that, from now on, you will have additional tools. Does your association have any particular concerns regarding a police service being located in a small municipality rather than a big city?
Mr. Harel: This is a reality that stems from the diversity of policing in Canada. Mr. Cox could answer the question, given that the Ontario Provincial Police serve different urban and rural areas.
Chuck Cox, Chief Superintendent and Co-Chair of the CACP Traffic Committee, Canadian Association of Chiefs of Police: Thank you.
I’m not entirely aware of statistics that indicate that impaired driving is more of an issue in rural areas than it is in urban areas.
However, I can tell you that one of the concerns we have across the country with respect to policing in a rural environment is the way the legislation is worded with regard to the issue of trying to get blood from someone who is alleged or suspected of being impaired while operating a conveyance and getting them in front of a medical practitioner or a qualified technician within the prescribed two-hour period of time.
I wouldn’t call it northern Ontario, but I have policed quite a ways north of Toronto, or the GTA, in a little town called Warren, Ontario when I first started. There were occasions when I could be policing within the jurisdiction of my detachment and be several hours away from my detachment in and of itself.
So in the process of arresting somebody and giving them the right to counsel, bringing them back to a police station so they are afforded privacy in order to retain and instruct counsel, and then taking them to a medical facility or some sort of qualified technician, it is going to be very difficult to get that completed within a two-hour period of time, depending on the geography. If you are rural Canada somewhere, that will be quite difficult.
The Chair: And the weather conditions.
Mr. Cox: Weather conditions are another issue that needs to be factored in as well.
Senator Dupuis: You have gone through a transition period regarding alcohol-impaired driving. Based on the experience of this transition, do you foresee any particular problems with capabilities being impaired by drugs? Do you think there will be the same problems in the transition period when new standards or new devices are introduced?
Mr. Harel: Clearly, we want our police officers to be well equipped to correctly enforce the new provisions of the bill, and avoid false arrests. We are expecting an increase in court challenges after cannabis is legalized.
Currently, we know that cases of alcohol-impaired driving are often challenged, and police officers are often called to testify in court. My opinion is that there will be an exponential rise in cases of drug-impaired driving brought before the courts.
The Chair: Thank you, Senator Dupuis.
Mr. Stamatakis, can you hear me? Is our connection to Vancouver established? I repeat, are you listening to me?
Tom Stamatakis, President, Canadian Police Association: Yes, I am senator. Thank you.
The Chair: Thank you. I’m sorry to have to repeat it. We had some difficulty in connecting with you this morning.
You are a familiar figure at this table. I want to invite you first to make a statement on behalf of the Canadian Police Association, and then we will have a period of questions and answers from you.
We have already had the opportunity to hear from Chief Mario Harel, President, Canadian Association of Chiefs of Police. He is accompanied by Mr. Chuck Cox, Chief Superintendent and Co-Chair of the CACP Traffic Committee, and Lara Malashenko, Legal Counsel, Ottawa Police Services, CACP Law Amendments Committee.
Please make your opening remarks, Mr. Stamatakis.
Mr. Stamatakis: Thank you. Honourable senators, I really appreciate the opportunity to appear before you this morning as you continue to study Bill C-46. As Senator Joyal mentioned, there are some familiar faces around the table; I have been watching the last few minutes.
I wanted to congratulate you on your election as chair of the committee, Senator Joyal. I also wanted to acknowledge, because I haven’t had an opportunity to appear before you for a while, that I miss the exchanges I have had over the years with your former colleague Senator Baker, which I really enjoyed and got a lot from, now that he is in his well-earned retirement.
For those who aren’t familiar, I’m appearing before you today as the President of the Canadian Police Association, an organization that represents over 60,000 front-line civilian and sworn police professionals serving across Canada.
My opening remarks will be brief and build on my past testimony that I gave to your colleagues from the House of Commons.
I want to begin by saying that the Canadian Police Association supports Bill C-46, which represents one of the most significant modernizations of our country’s impaired driving laws that I can remember.
I know that all members around the table share our goal of getting impaired drivers, whether by alcohol or drug, off our streets. While we may at times differ when it comes to specific tactics, I believe the provisions of this legislation, if enacted, will have a significant and positive impact on our efforts.
I’m sure most of you are aware that impaired driving imposes one of the most significant demands on the resources of almost every Canadian police service. While there is no question we have had success through education in reducing the number of impaired-driving incidents, there aren’t many officers you could talk to in this country who don’t have at least one heartbreaking story of responding to a motor vehicle incident where alcohol or drugs were a factor.
I’m confident in saying the changes proposed by C-46, specifically those that allow for mandatory roadside testing, will help our officers more effectively reduce the number of those stories.
Though I do understand that some concerns have been raised regarding civil liberties, our fundamental rights and the potential for infringement under this new regime, I want to say in this regard that police officers across the country are already asked and trained to exercise a tremendous amount of discretion every day in the execution of their duties, and that will continue.
While opponents of this mandatory screening have painted a picture where officers will regularly be randomly stopping motorists and demanding breath samples, I can say from a practical standpoint that this is simply impossible to imagine. The familiar holiday checkpoints will remain, but what these new provisions will allow us to do is eliminate much of the inefficiency that plagues impaired-driving investigations and prosecutions.
I also note that mandatory screening for impairment is already quite common internationally, and adopting Bill C-46 will bring Canada into line with other Commonwealth countries such as New Zealand and Australia, as well as other countries like Ireland. In fact, New Zealand experienced a 54 per cent decrease in serious and fatal vehicle accidents following the introduction of their mandatory alcohol screening program.
As I’m sure this committee is aware, studies, particularly those done by researchers at Simon Fraser University, have shown that under the current regime a single impaired-driving case can take a police officer off the road for up to eight hours. The legislation you’re considering today will have a meaningful and positive impact in that regard, particularly by eliminating many of the common defences used now to beat the charges, most notably arguments regarding reasonable suspicion and whether an officer had the grounds to pursue breath testing in the first place.
That being said, the changes proposed by Bill C-46 will come at a cost. I want to highlight this aspect briefly for members of the committee.
First and foremost, science is quickly catching up to impaired drivers. We’ve already seen some promising results from pilot projects testing the reliability of roadside screening devices for marijuana, similar to those already in use to detect alcohol. Those devices, however, won’t come without a cost. Given the ongoing budget challenges faced by police services of all sizes, I hope members will press the government to continue to honour their commitment to provide the necessary changes to implement these changes. Further, the training required for necessary new drug recognition experts, provided the capacity can be arranged, will also need to be increased to ensure that our members are at the forefront of this new drug impairment regime.
I should also note briefly that steps taken in this legislation to eliminate the bolus drinking and intervening drink defences are very much appreciated by our members. Additional clarity within legislation is always preferable. While some people will never be fully deterred from drinking and driving, I’m hopeful that explicitly restricting these two commonly utilized defences will help in the long run.
As I mentioned, I want to keep my opening remarks brief as I’m hopeful I can help this committee best by answering any questions you might have about the current state of impaired-driving enforcement, or how these new changes might impact front-line policing personnel in this country.
Once again, thank you for the opportunity to appear before you this morning. I look forward to discussion and any questions you might have.
The Chair: Thank you very much, Mr. Stamatakis.
I would like to invite Senator Pratte next.
Senator Pratte: Thank you very much, Mr. Cox and Mr. Harel. Thank you for being here today.
Mr. Harel, you know that the question of mandatory testing prompts concerns, specifically for any kind of profiling. When we asked many government officials and police force representatives, including those from the RCMP, about this, we were told that we should not be worried, because police forces are already sensitive to this issue, and that police officers are well trained to avoid profiling. However, we know that studies have been done, namely in Ottawa, which shows that profiling exists.
Given that there will be mandatory testing, shouldn’t police forces equip themselves with the right tools: first, to raise awareness on this issue, and second, to be able to track the problem, the situation? Then, in two, three, or four years, we can know whether profiling has indeed increased, or not, so we can truly assess the situation instead of being completely in the dark on this issue.
Mr. Harel: That is an excellent question, Senator Pratte. I believe that police forces are faced with the never-ending challenge of constantly keeping their officers up to date with their training to avoid this sort of behaviour.
I believe that Mr. Cox from the CACP Traffic Committee is ready to answer this question. So I will let him do so.
Mr. Cox: I will do my best to try to answer your question. I think where I need to start with this question is to come right out and say that the Canadian Association of Chiefs of Police supports mandatory alcohol screening given the current state of our legislation that requires suspicion of alcohol in the body to be all to demand roadside alcohol screening. There’s research out there that indicates that police officers often are unable to detect or develop that necessary suspicion with the brief interaction that they have with a motorist on the side of the road.
Research indicates that many drivers that have illegal alcohol levels in their system get through spot checks undetected by claiming they have not had anything to drink. We believe that mandatory alcohol screening will help detect these drivers. The knowledge of the fact they could be screened will also provide a powerful deterrent. As indicated, several countries, like New Zealand, Australia and Ireland, are already doing this.
It’s an important point that the result of the test of the approved screening device would not by itself lead to a charge. It would only lead to a further investigation and a test on an approved instrument at the police station prior to a charge being laid.
The other issue that I want to point out on mandatory alcohol screening is that it should not be confused with the power to stop a vehicle randomly. Random stopping, as you probably know, has already been considered on several occasioning by the Supreme Court of Canada. It was considered in a case called Dedman, back in 1985; in another case called Hufsky, in 1988; and in another case called Ladouceur, in 1990.
Senator Pratte: Mr. Cox, I have no problem with mandatory alcohol screening. My concern is with possible profiling, whether it’s on ethnicity or whatever kind of profiling. My question is whether police forces should not give themselves a way of being able to have data on profiling and whether mandatory alcohol screening would not lead to increasing instances of profiling.
Mr. Cox: First, with all of our police authorities, whether it’s the ability to stop somebody roadside, detain them, arrest them or conduct some kind of a search or seizure, all police officers across the country are governed by the Canadian Charter of Rights and Freedoms; and, second, by applicable provincial legislation. For instance, in Ontario, it’s the Ontario Human Rights Act. As well, we’re governed by bias-free policing policy internal to police agencies across the country.
The legislation, as well as our policies, drive our training and our police operating procedures, which outline the need for police to always be able to articulate the reasons why they exercise their authority and the actions that they took and justify that they were permitted under the charter of rights, as well as other applicable legislation or common law.
All of these considerations will drive the manner in which police agencies interact with mandatory roadside testing for alcohol.
Senator Pratte: Yet we know, sir, that profiling has been happening. Of course police officers are required to act within the Charter. We know that the large majority of officers are doing this, but we know that profiling is happening. I’m asking again: Shouldn’t police forces give themselves the tools to be following this so that, if ever there is an increase in profiling, we can react rapidly regarding people who are targeted in this way?
Mr. Cox: There is internal oversight within police agencies. There are policies within police agencies to hold our people accountable under professional policies and policies with regard to professional traffic stops. As well, there are outside agencies, external oversight bodies, in place to ensure that allegations of illegal profiling are properly investigated.
Perhaps I can point to a recent example in the province of Ontario where an issue arose with regard to carding or street checks. There was some concern with regard to police approaching people and the fact that illegal profiling could be taking place. In the province of Ontario, the Ministry of Community Safety and Correctional Services developed a policy that required police officers across the province to be trained in order to make sure they were fully aware of ensuring that what they were doing was bias free and they weren’t conducting illegal profiling.
So I think there is room for policies to be reviewed and considered, and perhaps for elected officials to consider policies or directives in order to give police some direction with regard to how to deal with mandatory alcohol screening.
Hopefully that answers your question, sir.
Senator Gold: Welcome.
The context for my questions — and I have two that I will put on the table that are tangentially related — is a comment that you made, chief, that you are already dealing with and have been dealing for some time with driving impaired by drugs, and that it’s a big problem. We’ve heard testimony to the effect that it’s underreported in some sense, and it could be as big or a bigger problem than alcohol-impaired driving. Be that as it may, it’s a real problem that you’ve been dealing with for a while.
You mentioned in your testimony that you anticipated an increase in the incidence of impaired driving following legalization of marijuana, assuming that occurs. On what basis do you conclude that?
And perhaps you could comment on the following hypothesis. If and when Bill C-46 is passed and the public becomes aware that there are per se offences, even for driving with drugs in our system regardless of impairment, and if that’s communicated to the public adequately through education, which we hope it will be, then that will be a deterrent on people who might, up until now, figure “I can get away with it.” Might I add that if les appareils de dépistage are known to be in operation, however incompletely, that would be a further deterrent.
The other question is tied to the devices. We understand your legitimate concerns about the time it will take to equip all the forces with the devices and for them to be trained and be competent to testify to them. But if we understand correctly, it is really a tool to help you in the evidence-gathering process. So could you describe how you deal with drivers who you believe have drugs in their system or are impaired by drugs in their system without these devices?
Mr. Harel: I could take the first one and let Mr. Cox talk about the second part.
Since the beginning, CACP has been urging the government — from Public Safety to Health to all the ministries — to educate people, to do some prevention, sensitize people to the fact that cannabis and driving do not mix. So the most important key things that we have to do right now, which have been started and we acknowledged in our comments, is that we need to educate people, to sensitize them and try to inform them to make a good decision not to take their vehicle if they take alcohol and drugs.
If we do that, why would we expect more collisions due to the fact marijuana is legalized? As you said, it’s a hypothesis, but when we see what is going on in other jurisdictions where cannabis has been legalized, there has been a significant rise in accidents. That’s why we feel it’s very important to educate people, that we have the best training possible to detect those drivers keep your roads safe. We feel there will be an increase in accidents because that’s what happened in other jurisdictions.
Senator Gold: Do you still think that the clauses in Bill C-46 will lead to a different outcome, insofar as they will be the first to criminalize driving with a certain amount of cannabis in the bloodstream, as displayed on the appropriate instruments?
Mr. Harel: As we mentioned, I believe that Bill C-46 will implement rigorous and important laws and provisions to reduce, as much as possible, the number of people who make the wrong decision to drive while impaired. Alcohol-impaired driving is and always has been the leading criminal cause of death in Canada. The issue of impaired driving will always be a challenge. However, the bill contains rigid provisions that will allow us to mitigate its impacts.
Your second question was about how we work with the tools and how we deal with impairment.
Senator Gold: The nub of the question is on the assumption that on day one or day two or yesterday, and for the days to come, you don’t have this tool. So how effective are your operations to detect, catch and ultimately prosecute drivers who are impaired by drugs?
Mr. Cox: I think the answer to that question is that we are already doing drug-impaired driving investigations, and we have seen an increase over the last couple of years across the country in terms of the types of cases where we are pursuing criminal charges. We’re already doing this, and we are doing it with standardized field sobriety testing, trained officers, as well as with drug recognition experts. We’re successful at it across the country.
So if an officer on the side of the road has driving evidence such that it appears somebody potentially could be impaired, they pull the vehicle over. They observe indicia of impairment. If they’re SFST trained, they can read a demand based on suspicion and require the individual to perform a series of three tests on the roadside to help them formulate grounds. Based on that, they can then make an arrest for impaired driving by drug, if they believe it’s drug and not alcohol. At that point, they would read the person their rights to counsel and bring them back to the detachment or the police station for DRE examination.
That’s the current situation, and we seem be very successful at it. Recently, we’ve started to ramp up across the country, increasing the number of SFST trained officers so we have more people out there capable of interdicting and identifying the motoring public that are in a position where they’re impaired by drug.
In fact, I think right now we have approximately 13,000 SFST trained officers across the country, and the plan is to increase that by about 7,500 over the next couple of years.
In terms of DRE, we have just under 700. There are plans in place and training already taking place to increase that number. Hopefully we can get it to around 2,000 over the next couple of years across the country.
As we increase the number of SFST officers and the DRE officers, we’ll be in a position where we’ll be better able to identify people that are drug impaired and ensure they are brought before a drug recognition expert so we can determine whether or not charges are appropriate.
That’s without the tool. We have that in place now. We’re making sure that people are trained. When the tool comes, then we will have a tool that helps us identify presence of the particular drugs that the devices are designed to identify. My understanding is that it will be cocaine, methamphetamine and THC.
Senator Carignan: I have a number of questions, but I will try to limit them. I have one in particular on the per se limit. It would perhaps be of greater relevance to Mr. Cox.
The Canadian Association of Chiefs of Police produced a document for the task force in which they voiced their concerns over the per se limit not being rationally supported by science. You seem to lean towards the more traditional method of having drug-recognition experts evaluate impairment. The following is from a document that you wrote in February 2017, and I quote:
• Evidence-based permissible limits are not defined and supported by science.
• There is no evidence that “per se” limits adequately quantify impairment and therefore we are concerned with regards to potential challenges within our judicial system.
Do you still have these concerns, these fears, with the per se limit? Would it not be better to choose a system where experts in drug recognition would evaluate impairment?
Mr. Cox: Thank you. I’m not entirely aware of the document you’re referring to, but to answer the question, I do have concerns with respect to how police officers, roadside, operationalize per se limits. The roadside screening device is a tool that assists us in identifying the presence of a particular drug like THC in their oral fluid. However, I do not believe there is any science available that connects the oral fluid level found of, let’s say, THC to the blood-drug concentration level. And there is no connection between the oral fluid level and that individual’s level of impairment that I’m aware of. I haven’t seen or read any scientific documents that would lead me to believe that.
That leaves us with current legislation that indicates that a police officer, once they get past suspicion, need reasonable grounds in order to make an arrest, provide them with rights to counsel and bring them for a blood demand. The concern I have is how we develop that reasonable grounds for the per se legislation the way it is written now and with the tools that we have available to us. I don’t think the oral fluid screening device provides us with reasonable grounds.
The analogy I will draw is on the alcohol side. On the alcohol side of the house, we have the approved screening device. There is strong science that connects breath-alcohol level to blood-alcohol levels; it is well documented. We know that with an approved screening device that’s properly calibrated, the individual will fail at 100, and that’s what gives us our reasonable grounds to make the arrest for the alcohol per se offence, which is over 80 milligrams.
On the drug side, with the tool we have available, it doesn’t give us the reasonable grounds to make the arrest like the approved screening device on the alcohol side gives us. I don’t believe that any other indicia of impairment you may gather during the course of your roadside evaluation gives you reasonable grounds to believe that someone is committing a per se violation. I believe that indicia of impairment gives you reasonable grounds to believe that they’re perhaps impaired, which would lead you to bring them in front of a DRE or take blood, according to the new legislation, but it doesn’t give you the reasonable grounds to believe they have committed a per se violation.
We’re hopeful that screening devices advance and the science continues to be studied so that in the future we are in a position where an approved device will actually provide us with reasonable grounds to believe that a per se offence has been committed, at which time we would then be able to make an arrest on reasonable grounds, process the individual appropriately and bring them in front of a medical practitioner or qualified technician for blood.
I hope that answers your question.
Senator Carignan: I have more questions to ask.
The Chair: Very quickly, because time flies.
Senator Carignan: Ms. Malashenko, you said that you are anticipating many challenges under the Canadian Charter of Rights and Freedoms, particularly. Can you cite some of them that could raise problems for this bill?
Ms. Malashenko: Certainly. We’ve identified some of the challenges. Superintendent Cox has spoken of the limitations with respect to oral fluid screening devices, so it’s imperative there be proper training recognizing the limitations of the use of that device, specifically that it doesn’t give an officer reasonable grounds; you will still need your SFSTs and DREs to get you there. So there are concerns about the use of the device itself. There could be potential litigation around that.
So there will have to be proper training and the recognition as to the use of that and how it is articulated in court, because that could lead to potential concerns with respect to the Charter.
There are also concerns about the per se limits, which I believe we’ve indicated in our working paper. You also heard from the scientific community yesterday with respect to the fact that per se limits do not indicate impairment. So there are concerns with the levels themselves, potentially. There were some pros and cons cited with respect to the levels being proposed.
Again, it all depends on tolerance levels, body types and what have you. We foresee that there could be some challenges with respect to per se limits and yet no evidence before the court that the individual was in fact impaired — for example, if the person was an active user.
Again, I would defer to the scientific community with respect to some of those issues. They can articulate it better than I could.
But as it plays out in court, there will be some concerns with respect to potential constitutionality. As with any legislation, it is difficult to foresee, although I may be speculating.
I believe I went through a few others. Disclosure of information was one of them that we articulated. Retaining of samples is another, as is types of drugs that will be codified whereas they are not now; they’re set under the IACP standard. So if they are going to be codified, that might have to be amended repeatedly, because synthetic and designer drugs that keep coming. If something is codified, that might have to be amended. We would be concerned that there has to be a level of consistency, otherwise the criminal charges could be in jeopardy.
That’s to name a few, although I could go on. A lot of the concerns we cited are in the CACP working paper that was submitted previously.
Senator Eaton: Chief Harel and Superintendent Cox, this is the same question I ask every panel. Bill C-46 will enable police officers to perform mandatory alcohol screening. However, they will not be allowed to perform mandatory drug screening, as they do in other countries. Should we have higher expectations toward those who drive heavy vehicles, pilot planes, or who transport children or groups of passengers? Should they be exposed to mandatory drug screening by police officers?
Here is a second question, if you have time: Have you been in contact with your fellow police officers in jurisdictions where cannabis is already legal, and have you learned anything from them?
Mr. Harel: CACP is for legislation and tools that we could have to keep our communities and roads safe. So if the legislator —
It is clear that police forces strongly support having the tools to provide better road safety. I understand that there are legal issues, and that legislators must make decisions. I know that there are differences, and perhaps Mr. Cox can speak about those involving alcohol and the tools used to detect it, versus the tools used for drug testing. This is a hot topic, but you can still see the challenges we have to face.
Senator Eaton: Should there be only one law for both drugs and alcohol?
Mr. Harel: I don’t know if you can take this one on the difference between the two. I think that the science —
Senator Eaton: In other words, science is running behind the legislation. We already know that. We have heard that. I agree with what you have said, but this legislation is not going to allow you to randomly test people who fly 300 people at a time or who drive schoolchildren.
When the science catches up to the legislation, should the legislation, which is running ahead of the science, also give you guys the power to randomly test those kinds of people, such as long-distance truck drivers? When edibles so come in, they will have a brownie with their egg salad sandwich on the road.
Mr. Harel: Senator Eaton, in this context, the short answer would be, yes, having the same provisions would be ideal.
Senator Eaton: That is what I wanted to hear.
Mr. Cox: Quite frankly, we would very much appreciate any tool that the people who legislate provide to us so that we can make our waterways, trails, skies, roads and communities safer.
Senator Batters: Mr. Stamatakis, it’s nice to see you again. We haven’t had very much legislation in order to see you.
As President of the Canadian Police Association, as well as with your considerable years of experience as a front-line officer, I ask you this: With marijuana legalization, do you expect impaired driving in Canada to increase?
Mr. Stamatakis: I think it has been said that we already deal with drug-impaired driving in Canada, more so in some regions than others. It would be hard for me to say whether we’re going to see an increase in drug-impaired driving post the legislation coming into force, but it’s definitely a concern. To what extent, I’m really not in a position to say. It is a concern.
Senator Batters: I know you can’t predict how much it will be, but I am thinking that given what you have seen in other jurisdictions, this is a concern that your members are expressing nationally. Is that right?
Mr. Stamatakis: Yes, that is correct. It’s a concern that people are expressing. To what extent we will have to deal with it, we’ll have to see.
Senator Batters: Thank you.
To the Canadian Association of Chiefs of Police, your opening statement referred to the federal government’s recently announced funding plan for implementation. In your statement you say, “. . . questions remain with regard to the resource allocation and distribution and timing.” This tells me that despite what the Public Safety Minister has been saying about that critical issue, you still have significant concerns on this. Could you please tell me more about those concerns, especially given that it’s already February 15?
Mr. Harel: We learned in the last few weeks that officials from all the provinces met to finalize the allocation of funding. Now, it is up to each province to determine their methods of allocation according to their needs. We are constantly awaiting results, but, yes, time goes on, and anyway, we will need laws before starting training, and so on. Yes, we are still waiting for funding.
Senator Batters: There were some important points raised in the discussion paper that you provided to our committee. Thank you very much for the work that you put into that.
One of them, I note — and you were referencing that earlier, Mr. Cox — states that “. . . oral fluid devices cannot be used as the sole ground upon which to base a blood/DRE demand as they do not detect impairment.” Yet again, it seems that, with this bill, this Liberal government is not ready to handle this particular issue.
You also raise several provisions of this bill where you recommend important amendments. Those include the inclusion and codification of the drug categories; approved containers; certificates; disclosure of information, where you say that the provision of this bill will actually lead to further court delays — which we certainly don’t want to see, as we know what a massive problem that is — and per se limits.
Perhaps this question is best addressed to Ms. Malashenko. Did you propose these particular amendments to the House of Commons committee? Obviously the Liberal government hasn’t proceeded with them because we’re seeing them again now. And could you please tell us about two of the most important recommendations you would make for amendment to this bill.
Ms. Malashenko: To answer your first question, we did provide the working paper before the Health Committee, so they were aware of some of the recommendations we made. I don’t know whether they had the paper at the time. My recollection is that I believe they didn’t have it at the time we provided our presentation, but that was submitted to them after the fact. So they were since made aware of a number of the recommendations.
In terms of those most important, we have so many recommendations that we made with respect to a number of the proposed amendments that I’m not sure one is more important than another. I initially indicated we did mention some of the concerns we have with respect to oral fluid screening devices that do not give you the grounds. It only detects the presence of the drug in the saliva, not in the body. You would still need to proceed with the traditional SFSTs and DREs, so again recognizing that.
One of the amendments we talked about was the disclosure of information, which was section 320.34(1). Again, these amendments were aimed to codify requirements by saying that a prosecutor or a Crown shall disclose samples of breath that the accused provided, the results of blank tests, calibration checks, and it goes on further. This concern, from a policing perspective, is that the police may be required to produce what is considered now a third party record application, where the defence would have to bring an application and would have to establish an evidentiary burden to demonstrate that they are likely relevant.
This amendment now seems to suggest that there is going to be a first party disclosure as per the Stinchcombe decision. Our concern is that this amount of disclosure may not be likely relevant, yet the police and the Crown are going to have the obligation to produce that. This may create further Jordan delays and, certainly, an unmanageable level of disclosure for both the police and the Crown. So that’s a significant one.
I don’t know whether, Superintendent Cox, you have any further recommendations that you wish to add.
Mr. Cox: I couldn’t have picked two that were better than those. The disclosure piece and the oral fluid screening device piece are really important.
There are some other changes that took place in the legislation with regard to certificates that potentially could cause us some problems in court. What would be in the body of a certificate used to be codified, and that doesn’t seem to exist in Bill C-46. The expectation is that that leaves it wide open to litigation, which could cause further court delay. That’s another piece that I think is important. It could simply be resolved by creating a prescribed form. That’s another that I would suggest is important.
Senator Boniface: Thank you for being here. I appreciate your comments and the papers that provided. My question deals with mandatory screening and the impact it will have.
If I remember correctly, 30 per cent of the people who are stopped and claim not to be drinking may get through the system the way it is today. So mandatory alcohol screening, in my view, will be extremely beneficial.
In the Irish experience — I was living there when the Irish brought it in — they combined it with a significant amount of awareness. It actually worked very much as a deterrent because people knew they would be tested, as opposed to taking the chance and being able to get through the system. Based on what you have read and seen, would you agree that that is the experience?
Mr. Cox: Yes, absolutely. What I have read and seen in terms of what is happening in other jurisdictions clearly states exactly what you mentioned. Not only are they in a position to better identify those who have an illegal amount of alcohol in their system that in the past potentially could have gotten through a spot check on the side of the road, but the fact that they could be tested at any time also acts as a very strong deterrent. As a result, I think in many of those jurisdictions there has been a drastic increase in the incidence of impaired driving.
Senator Boniface: The second thing I want to refer to is Colorado, because I suspect you have had discussions with the folks there. One of the pieces of information that I became aware of prior to coming to the Senate is that Colorado’s police authorities would say that one of the mistakes made, if I understood them correctly, was they did not do a significant awareness campaign around driving. They are playing catch-up, I think, is how it was described to me.
Have you had input and an opportunity to emphasize around the awareness required on the drug side of things? As you know and experience every day, this is an issue today, whether it is legal or illegal.
Mr. Harel: Yes, and since it’s not legal, there is no awareness campaign. But I spoke with chiefs in Colorado, not to mention Seattle, in Washington State, and yes, the prevention and the messaging we at CACP are asking for, and what we are starting to see, is key to educating people and trying to mitigate the impact of the full legalization of marijuana.
Senator Boniface: Thank you.
Senator Sinclair: I want to explore one point you made, Chief Harel. You said that impaired driving is the leading cause of death in Canada, I think.
Mr. Harel: Criminal, yes.
Senator Sinclair: The leading cause of death on roads, though, as I’ve been told and have read about in various reports, is distracted driving. Do you agree with that?
Mr. Harel: In Canada, the leading criminal cause of death is driving under the influence of alcohol.
Senator Sinclair: Those that are related to criminal offences?
Mr. Harel: You’re right that distracted driving is becoming a very hot issue for safety.
Senator Sinclair: The Ontario Provincial Police has reported that in the last four years, the leading cause of death on roads has been distracted driving.
Mr. Cox: That is correct.
Senator Sinclair: Thank you.
On the issue of profiling, I wanted to pick up on a few points made with regard to the questions that Senator Plett was raising with you. I’m concerned about the fact that this bill allows for easier provisions to stop and detain and demand breath samples, particularly from drivers, without necessarily having to go through the same testing or determination as was previously the case, which could give rise to people being more easily stopped and, therefore, targeted groups — people of colour — being more easily detained. The question that was asked was: What is being done about it? You talked about training.
Mr. Cox, regarding the complaint process that you talked about relating to the training that officers are given, it seemed to require somebody to complain before there was a process to challenge or to check on whether racial profiling is concerned. Have you looked at a process of constant monitoring and requiring reports to be filed on a daily basis by officers of the stops they make so that that can be assessed on an ongoing basis?
Mr. Cox: No, at this point we haven’t specifically looked at creating a policy with regard to monitoring mandatory alcohol screening. But there are policies that police agencies have with regard to supervisors to monitor what their officers are doing to ensure that they are not illegally profiling.
As indicated, there are checks and balances, both internally and externally, to ensure that police officers are abiding by the Charter of Rights and Freedoms and by their own internal policies with regard to this issue.
We haven’t gone down the road of developing a policy at this point in time with regard to monitoring. However, that doesn’t preclude that from happening in the future.
Senator Sinclair: Thank you.
The Chair: Before I say thank you to all of you, Chief Harel, you mentioned in your opening remarks that you expect that there will be an increase in offences on the basis of other countries or jurisdictions where legalization has happened. Do you have studies at hand that you could provide the committee with?
Mr. Harel: Mr. Cox has some stats and studies, yes.
The Chair: I’m sure that all the honourable senators will certainly be interested to read what happened following legalization in other jurisdictions.
Mr. Cox: Yes, absolutely. In fact, I have an executive summary of a study done in Colorado that was published in September 2016. It indicates that marijuana-related traffic deaths increased 48 per cent in the three-year average from 2013 to 2015 since Colorado legalized recreational marijuana, compared to the three-year average of 2010-12, prior to legalization. Also, during the same time period, all traffic deaths increased by 11 per cent. So I do have various studies from particular jurisdictions.
The Chair: Could you provide them to us? I’m sure honourable senators will want to read and reflect on those.
Senator Carignan: There is a more recent one that is from November 2017, which we could also ask you to provide. It is rare for us to invite police officers from municipal forces. What will be the delay once the equipment is approved? It is a municipal tender. What is the timeline for you, in Gatineau, between the moment you issue a tender and the moment you receive the product?
Mr. Harel: Easily 60 days. It depends on the availability of the equipment. If there is only one supplier or one product, the timeline can be shorter. Without this information, it is harder to answer you, but we can say that it takes about 60 days to receive equipment.
The Chair: Thank you very much to all of you.
Mr. Stamatakis, I’m sure we will be able to listen to you more in the months to come, and I will pass on your kind remarks to former Senator Baker. Thank you very much.
I now invite the second group of witnesses and the senators to take their seats around the table so we can continue our discussions this morning. I am very pleased to introduce Lt. Jean-François Grégoire, Shift Supervisor, Gatineau Police, and from the Ottawa Police Services, Chris Rheaume, Superintendent, Support Services, who is accompanied by Ms. Laurie Fenton, Project Manager, Traffic Stop Race Based Data Collection.
As you know, this is a subject of deep interest around the table. We welcome you this morning.
I understand we will begin with Lt. Jean-François Grégoire. You have the floor, Mr. Grégoire.
Lieutenant Jean-François Grégoire, Shift Supervisor, Gatineau Police: Hello. Thank you for this opportunity to appear before you today. I will keep my remarks brief to give the senators time to ask questions about the work of police officers in the field.
My special expertise is in drug recognition. I have been an evaluation officer since 2008. I was certified as an instructor in 2011, and have been teaching for seven years at École nationale de police du Québec, Quebec’s police college. I also contributed to the development of the drug recognition experts’ training program for Quebec.
From December 2016 to March 2017, the Gatineau police service was one of seven police services that took part in the Public Safety Canada pilot project on oral fluid drug screening devices. Over 180 samples were collected in Gatineau using two types of devices, which were presented to you. The police officers’ findings are the same as the ones contained in the final report on the pilot project for these devices.
I would like to point out that the bill provides additional tools to help both front-line police officers and evaluators. We are facing operational challenges right now that are addressed in the bill, all of which will help greatly in making our roads safer.
I will be pleased to answer your questions about the work and training of evaluators, coordination and movement difficulties, and drug screening devices.
The Chair: Thank you very much, Lt. Grégoire.
Mr. Rheaume, you have the floor.
Chris Rheaume, Superintendent Support Services, Ottawa Police Services: I’ll let Ms. Fenton talk about the Race Based Data Collection project, but this stemmed from 2012 as an agreement between the Ottawa police and the Human Rights Commission on us collecting data for two years. I’ll let Ms. Fenton explain the actual collection of the data.
Laurie Fenton, Project Manager, Traffic Stop Race Based Data Collection, Ottawa Police Services: Some of the highlights of the settlement agreement included, of course, the race-based data for two years. It should be noted that the race being collected by our officers is still being done today, five years later. It’s actually their perception of the driver’s race for all traffic stops. Other things in the agreement included community consultation, delivery of the data, and the hiring of a research expert in race-based data collection.
It’s a project that showed our willingness to continue addressing racial profiling concerns. We have a long list of different initiatives. You have heard about training. We have an anti-racial profiling policy. There are a number of initiatives with community partners in the city that we have been working on over the last two decades. Race-based data was a fairly recent one we entered into in 2012 as a result of that agreement.
I want to share a few of the challenges with you. I won’t go into too much detail. In 2012 we had a lot of challenges. Because this wasn’t being done in Canadian policing, we did have to deal with things like budget and timelines. We were given a year and $400,000, and it actually took us 14 months to implement race-based data collection at our police service. It also reached $1 million by 2016.
There are also a lot of privacy issues with respect to collecting race data of drivers in the city by our officers, so we needed to work with the legal department as well as the privacy commission.
Of course, we needed to figure out how to collect the data, a procedure for that, and also how to store it and how the officers would best collect it, whether it be through smartphone technology or a paper format, which was the experience in some of the other police services and a road we didn’t want to go down given technology today. So we ended up using our in-car laptop computers — great security for the data, easy extraction. Most importantly, it was user-friendly for our officers to enter the data in the existing traffic stop process. It needed to be user-friendly for training, of course. Also, as you know, they are on the road responding to emergency 911 calls for service, so we needed to make it easy for them to be able to do this.
One of the other challenges, race data aside and training aside, if there isn’t open dialogue between the police and the community in relationship building that is happening with respect to a project like this or in dealing with racial profiling in general — so back to the need for public education and two-way dialogue — we realized that is actually the foundation of the project and what we use throughout today. It was the driving force. It was both that interaction and collaboration that led to key decisions in the project and how it was shaped throughout the two years and beyond.
I do want to skip to the findings. After the two years, we gave the data to the research team we hired, according to the methodology, with all the privacy particulars removed, of course. They spent quite a time doing the data analysis phase and report writing. They delivered that report; it was available publicly on our website on October 24, 2016. I don’t want to take up too much time here today talking about that report, because it is a lengthy report with findings. The findings, presentations, even the data itself are available online.
I do want to point out that over 81,000 traffic stops were examined by our researchers for that two-year period, and there was a disproportionately high incidence of traffic stops for some of our racialized communities. For example, Middle Eastern drivers were stopped 3.3 times more than you would expect based on their population in the city, and Black drivers were stopped 2.3 times more likely based on their population in the city.
The researchers made six recommendations. They were not unreasonable. In fact, we were already doing many of them and made a commitment to implement the rest and beyond. It was our chief who said at the release of the report that we’re going to continue collecting data beyond the two years and implement all of the recommendations.
So it’s really a story of working together between the police and the community to do race-based data collection, the biggest of its kind in Canadian history today in policing, and it’s about working together and continuing to work on what those results mean and implementing the recommendations.
The Chair: Thank you very much, Ms. Fenton. I’m sure that senators will want to engage with you on that information.
Senator Boisvenu: Welcome to our witnesses and thank you for your testimony.
I would like to talk about operational timelines for police officers. Mr. Grégoire, looking at the timelines we are facing today, the government could decide in April or so which devices police officers will have to use. Chief Harel said earlier that if we launch a tendering process, it could take up to 60 days.
We know the government would really like cannabis to be legalized in time for Canada Day, on July 1. Imagine today is July 1 and the devices are now available in Gatineau. Once the devices are delivered on July 1, how long will it take until your officers are indisputably able — and I mean “indisputably” — to present data that is considered valid in a court of law? A dispute depends on having the necessary competency to use the devices. So how long will it take for your police officers to be able to use the devices?
Mr. Grégoire: That is a hard question to answer. Various partners will be involved. In Quebec, all aspects of training are overseen by the École nationale de police. Until the bill is enacted, the École nationale de police will not be able to establish the content of the device training. At the same time, it has to provide an update on the new infrastructures and the technical aspects of the bill so that police officers are also informed.
Senator Boisvenu: In the event that the devices are not in place by July 1, but Bill C-45 has been enacted, so the sale and consumption of marijuana are legal, but a large number of police stations do not have the equipment or their staff has not been trained, what would the result be if that were to continue for months?
Mr. Grégoire: We would be in the same position as we are in right now.
Senator Boisvenu: In other words, we have zero tolerance right now.
Mr. Grégoire: As to the tools available to patrol officers, the coordination and movement difficulties, all Gatineau police have the training to conduct that testing. If we do not have the tools or the training, we can still act as front-line police officers to detect persons under the influence.
Senator Boisvenu: You say you do not know what the consequences would be. I know you can do various tests. On the other hand, without the scientifically indisputable detection devices, what would the consequences be?
Mr. Grégoire: I am sorry, but I do not understand your question.
Senator Boisvenu: The drug will be legalized on July 1, but it is illegal right now. Suppose you do not have that equipment on July 1 or police officers have not been trained to use it, what would the legal consequences be for drivers who have smoked marijuana and are driving with three, four or five nanograms in their blood, but which you cannot detect for lack of equipment?
Mr. Grégoire: As to the levels themselves, of course, we cannot do anything if we do not have the equipment. On the other hand, impaired driving will be treated the same way as it is now.
Senator Dupuis: Thank you for being here. Ms. Fenton, thank you for your presentation. If I may say so, I think the October 2016 report is extremely well done and provides a lot of clear data. That is saying something given the volume of the documents we read as senators.
On page 14 of the report, in diagram 3, it says the following.
It’s on page 14, middle of the page.
The officers entering the race data reported perceiving the race of the driver prior to the stop in 11.4 % of the cases.
I thought it was interesting. What does that teach you? Does that teach you anything?
Does that mean that, in 11 per cent of cases, police officers were able to perceive the race of the person they stopped? Police officers often tell us they could not identify the person’s race at all. They say they stopped the person for running a red light or for some other reason. In 11.4 per cent of cases, the police officers were able to identify the person’s race before they stopped them, regardless of the reason.
Ms. Fenton: Yes, that’s correct. In only 11 per cent of the cases were officers able to perceive the race of the driver before his or her decision to stop the driver.
Senator Dupuis: I appreciate your answer that it is just 11.4 per cent. I agree with your answer.
The factors are mentioned on page 40 of the report, and I quote:
These variations in outcomes suggested that a range of organizational factors may be at work here: leadership, management, policing strategy and police culture of police districts.
There are organizational factors. What steps have the Ottawa police taken to address at least that 11 per cent, but also the other organizational factors at play? In other words, while it is an individual police officer who stops someone, there is also the organizational aspect of tolerating overrepresentation or not. I would like to know what steps the Ottawa police have taken to change procedures or policies.
Ms. Fenton: We do have a number of initiatives, including training. We actually have an anti-racial-profiling policy that was released in 2011. It is pretty well known, and it’s available publicly. We have, of course, the complaint process, and we are embarking on a number of other initiatives, including a diversity audit, which is one of the results of the study. We are conducting that this year.
Senator Dupuis: You are the police service in Canada that has done that kind of work. It is important work that deserves to be recognized. You accepted this responsibility, despite the active resistance by police officers to collecting data on racial profiling.
In view of your expertise in this area, have you had requests from other police services to help them conduct a similar project?
Ms. Fenton: Yes, we’ve had requests for presentations, overviews of how it works and how to go about it, from police services and other agencies. I should also note that Ontario, since 2012, actually has some provincial legislation that requires race-based data collection now. We’ve been participating in that as well. Also, with the Anti-Racism Directorate, I know they’re looking at race-based data collection. So it’s becoming more “in,” if you will, in the province of Ontario, to do that.
Senator Carignan: My question is for Lt. Grégoire. Just out of curiosity, what is Gatineau’s population?
Mr. Grégoire: The population is 275,000.
Senator Carignan: Okay. How many drug recognition experts do you have who have been trained for the City of Gatineau?
Mr. Grégoire: We have five right now, and one who is in training.
Senator Carignan: How many drug recognition experts would a comparable city in the United States, in Colorado, have?
Mr. Grégoire: I do not have any comparative data. Locally, we would like to have two evaluators per shift. So that would be a total of 10 evaluators providing that service.
Senator Carignan: So you would like to double the number of officers?
Mr. Grégoire: Yes.
Senator Carignan: You are also a trainer. When you give training, what do you say is a reasonable delay from the time you stop a person until they get to the station to meet the drug recognition expert? That would depend on the circumstances and the officer’s judgment, of course.
Mr. Grégoire: We have taught people from across the province that they have different realities, whether urban or rural. What we teach them is exactly what it says in the Criminal Code, so the answer is “as soon as practicable.” If the evaluator is not on duty and is called at home to come into work to do an evaluation, perhaps it would be better to take the person to another operational station that has the tools and a place suitable for testing. We will have to explain these timelines, but we will not indicate a maximum time period. The longer it takes, the less apparent the signs of intoxication and the more difficult the evaluator’s task will be. Ideally, it should be as soon as possible.
Senator Carignan: Do you expect an increase in the number of cases after legalization? We expect there to be some increase, but the offence in the Criminal Code will also change. It is no longer simply a question of operating a vehicle within 65 minutes, but within two hours. That increases by two hours the period of time during which the person could be committing an offence. Do you anticipate an increase in volume or would you expect an increase in volume simply as a result of this new definition which establishes a period of two hours?
Mr. Grégoire: If I am not mistaken, the two hours are for—
Senator Carignan: For driving while under the influence.
Mr. Grégoire: And we use the blood sample to determine the level.
Senator Carignan: No, the offence has been changed. From now on, it will be an offence to drive a vehicle within two hours, so after the person has stopped driving, with a level above the prescribed limit.
Mr. Grégoire: Of course, there will be delays. Considering operational realities and the time it takes to make an arrest, read out the order, provide the right to legal representation and test the person, it will be hard to do everything within the two hours, in my opinion.
Senator Carignan: I have a question about training. You are a trainer. You received additional training from the École nationale de police. You said the training is given at the École nationale de police du Québec, in Nicolet. When was the École nationale duly accredited by the International Association of Chiefs of Police, as prescribed in the regulations? Initially, during a pilot project, the recognition experts were trained using actors. They were certified by the association in 2017 or late 2016. Do know exactly when Nicolet was certified?
Mr. Grégoire: I do not have the exact date. I can assure you, however, that at every stage of the pilot project, we worked very closely with the technical advisory group of the International Association of Chiefs of Police so that all evaluators who take the training, whether with actors or with individuals who are actually intoxicated, were certified by the international association. At the same time, a pool of people was training exclusively with actors. Another course was given with intoxicated individuals only.
We should note passing that, unlike the usual process whereby evaluators in training go to the United States, where highly intoxicated persons are used, we decided instead to work with a rehabilitation centre in Montreal. The people who take part in the training are somewhat intoxicated, but not too much, so they can consent to the exercise, because we have to comply with the ethical rules as regards the individuals who decide to work with us.
Getting back to the discrepancy in information, the Nicolet research centre is conducting a study right now looking at the training model, that is, whether intoxicated individuals only or actors only are used, or a hybrid model using a maximum number of intoxicated persons. The International Association of Chiefs of Police requires us to conduct a minimum of 12 evaluations for an officer to be certified as a drug recognition expert. If they do a few less, they can complete the training at the École nationale de police through the hybrid program involving actors. These three approaches are currently being studied to see whether the evaluators are equally effective in the field when trained in one way or another. The results have been good thus far.
Senator Gold: We all share the goal of reducing the harm caused by impaired driving on the roads and that in an ideal world deterrence would be an important element in that. I’d like to take advantage of your experience on the ground to ask you your views about the possible deterrent effect of Bill C-46.
We heard, for example on the alcohol side, about experiences in Ireland where random testing accompanied by a large educational campaign reduced significantly the incidents on the road and seemed to work as a deterrent. We also heard that the experience in Colorado, when they legalized marijuana without an educational program, resulted in a spike initially in the data in impaired-driving offences.
How do you think Bill C-46 will or will not deter people from continuing to drive while impaired by drugs? They’re doing it now and we want them not to do it at all. Do you think that the legislation of the per se offences, the presence of the devices and what we hope will be a vigorous, rigorous and sustained educational program about the risks of driving while having consumed drugs, will have an effect? Do you have a view as to whether that will have a deterrent effect on the people that you and your colleagues stop and arrest on a regular basis?
Mr. Rheaume: If you’re asking me for my personal opinion, will it deter them, I personally don’t think so. It’s just another tool in our toolkit that will help the officers, whether you’re a DRE or at traffic stops or at RIDE programs. Mothers Against Drunk Drivers is 40 years old now. I know they’re incorporating it into their campaign, but we need more than just Mothers Against Drunk Drivers to be on that campaign.
We don’t want deaths on the road. We don’t want people driving stoned. It’s something we don’t want as police and as a society.
Will it deter them? I doubt it. It’s a great tool for the officers on the road, though.
Senator Gold: I’m not talking about the devices but that you can now be convicted of an offence whether or not you’re impaired simply because you can be — that is, assuming the testing is done — found with a certain level of certain drugs in your system. Do you think that will be a deterrent as to those who now figure they can get away with this because they feel, “I’m not impaired and they cannot find out if I have drugs in my body anyway”?
Mr. Rheaume: Correct. For myself it’s just another tool for police officers to use. Will it deter them? Some people for sure but for others it won’t.
When we’re dealing with people now who are high or under the influence of a drug, they’re saying, “Well, we were going slow.” It is not like impaired driving where you’re going fast. That’s their mind set. Will it give them that? It will help some people. Apart from that, it’s more of a tool for the police officers.
Mr. Grégoire: We have to aim for 100 per cent prevention. As stated, some people even brag about getting through a roadside impaired driving check without police interaction. As soon as a driver sees a checkpoint on the road they are driving on at that specific time, they will systematically control themselves. For certain law-abiding individuals, average citizens in other words, if there is a greater chance of getting caught, this tool might in fact help reduce risk-taking.
Senator Pratte: Mr. Rheaume, we have had other representatives of police forces to whom we have asked whether they would be interested in monitoring possible profiling in the next few years, considering there will be mandatory alcohol screening, which will give new powers to police officers. We felt a lot of resistance to that.
I’m wondering whether you think, at least for the Ottawa Police Service, it was and is a worthy experience, besides the fact that you obviously discovered something happening. Does doing this have advantages for a police force?
Mr. Rheaume: For sure. We and our chief have maintained that we will keep collecting the data.
Has it helped us? It helped us identify issues. One of the big things the other senator was talking about is that it helped us identify how we go into problem areas and how we police them.
If you’re Middle Eastern, you’re three times more likely to be pulled over. That’s because we were going into communities with shootings, guns and violence, and we were pulling everyone over as opposed to targeting specific groups or people.
We’ve learned a lot and have grown as a police force. Now we’ve been doing it for five years. We use it as a tool. It helps us with the communities we’re serving, so it’s a valuable experience for sure.
Senator Pratte: Was there initial resistance from the officers? Was it difficult to convince the officers to do whatever they had to do to report what they did?
Mr. Rheaume: At the start, we had growing pains. We collected 100,000 traffic stops. Only 81,000 were viable ones because of spoiled data.
We had a little resistance from the union, but then they got on board. Now, it is a just way of life. All the new officers coming through don’t even know what they’re doing anymore; they’re just collecting the data for the sake of doing it.
Senator Pratte: Ms. Fenton, I’m not sure if I understood this correctly, but I think I heard you say that initially you expected the cost to be $100,000.
Ms. Fenton: It was $400,000.
Senator Pratte: Okay, and it finally ended up costing $1 million for the first two years.
Ms. Fenton: By 2016.
Senator Pratte: Anyway, it cost more than you expected. What’s the reason for this? Why did it become more costly than expected?
Ms. Fenton: The majority of the costs were in staffing. We didn’t have a model or existing staff who could do this kind of work. The other thing is that we don’t have the research expertise needed in house, even as a big police service. It was required of us to hire them, so the expertise we hired was also expensive.
Senator Pratte: Because you do need some independent research expertise.
Ms. Fenton: Independent, yes. These studies are done all over the States, and 99 per cent are done by third-party expertise.
Senator Sinclair: Senator Pratte asked you many of the issues I wanted to raise, so I will not repeat them.
I wondered if you have any basis to compare the current situation insofar as policing satisfaction or the change in attitude within the force versus prior. Are police officers generally happier with the kind of policing they’re doing? Are you able to compare that to anything?
Mr. Rheaume: I don’t have any data, but if you’re asking about morale and whether they’re happy doing their jobs, I’d say for sure. If the question has to do with the collecting of data, they do it now without even thinking.
Senator Sinclair: In terms of the community of people who are being policed, are you able to comment as to whether there is a degree of improvement in their attitude toward policing as a result of this effort?
Mr. Rheaume: Once we got that data, we changed the way we police. We’re working closer with the community partners. We have officers going into these communities to help them through whatever issue they might have. They work together on identifying problems so that the police can now target their policing to those specific targets.
Senator Batters: Thank you for being here, everyone.
How long does it take to train a drug recognition expert?
Mr. Grégoire: The theory component takes two continuous weeks, after which, the evaluating officer has to carry out 12 evaluations under the supervision of an instructor, who corroborates the results. Then, the evaluating officer has to pass a general knowledge test. Once the officer has the recommendations of two instructors, the assessment form is submitted to the International Association of Chiefs of Police, which is responsible for credentialing and issuing the evaluating officer their number. In total, the training takes three weeks, but the last week has to be completed within three months of the initial training.
Senator Batters: Are those initial two weeks full time?
Mr. Grégoire: Yes, that’s correct.
Senator Batters: Is it correct that an officer would need to use both hands to operate the drug-testing devices we’re speaking about here when that officer is in close proximity to the person they are testing? If that is correct, do you consider that a security risk?
Mr. Grégoire: Yes, it is indeed a risk. The Securetec device must be placed in a level position, which is hard to do in a patrol car, which has very little flat surface area. Therefore, police officers generally hold the device in their hands to keep it level for the analysis.
Senator Boniface: Thank you for being here and for sharing the study. It’s very informative and perhaps the way of the future.
I want to also ask a question that I might have missed when I was out. Looking at your vintage in terms of service time, as you see young recruits come through today, they get a lot of training at the police college on diversity and other issues. We live in an environment where officers who engage with somebody from the public is filmed probably more times than ever in the history of policing.
Regarding your point about the comfort level your officers have reached, is it fair to say, particularly for new officers, that they’re working in a milieu that’s very different in terms of how they’re being watched and filmed? Would that be fair?
Mr. Rheaume: One hundred per cent, yes.
Senator Carignan: I have a follow-up question about training. How long does it take the evaluating officer to carry out 12 supervised and corroborated evaluations in order to be certified? According to some figures I saw, drug recognition experts in Canada might do an average of three to four evaluations. I realize that some drug recognition experts may do a lot of evaluations, but it could take quite some time to complete 12. It comes down to timing: the officer has to be working the right shift and so forth.
Mr. Grégoire: The 12 evaluations are carried out within the same training program. I am referring more broadly to the training that takes place outside the province of Quebec. Officers travel to pre-established centres in the U.S., such as a correctional facility where intoxicated individuals admitted to the facility are referred to a group of evaluating officers. Within two days, the officer has completed the 12 evaluations.
In Quebec, officers spend four days in Montreal, and if that is not enough time to complete all 12, the following week, officers go to the École nationale de police du Québec to finish the remaining evaluations with the help of actors. It’s rather restrictive from a training standpoint. It takes either two days or two weeks, but we make sure that officers complete 12 evaluations.
Senator Boisvenu: Mr. Grégoire, I have a specific question, but I don’t want to make you uncomfortable. If it does not fall within your area of expertise, just say so. I will understand.
Does Bill C-46 strengthen the information-sharing mechanism between members of the medical community and police? In one case, heard by Judge Major, the impaired driving offence was thrown out; the judge placed a lot of importance on maintaining an information-sharing barrier between health practitioners and police. Will this bill remedy that troubling aspect, both for you and members of the medical profession? Will it allow you to share information?
Mr. Grégoire: It will vary from province to province, depending on the medical body, for example, the Collège des médecins du Québec. I wouldn’t want to venture a guess as to what will happen after the bill, since it involves physicians, personal information and confidentiality. If things stay the way they are now, very little to no information will be shared.
Senator Boisvenu: It’s a major constraint for police, then.
Mr. Grégoire: When someone ends up in hospital after an accident, and police want to obtain a sample of that person’s blood, they need judicial authorization to take what has already been taken, but in a medical context. That involves the chain of custody and identifying the people who were in contact with the evidence in question. It’s a pretty burdensome task right now.
The Chair: Before I thank all of you, I have a question. That data and the pilot project that you completed allow you to develop an anti-racial policy. Those are your own words. What use did you make of it to spread it among the other police forces across Canada?
Since you were unique in that context, of having the possibility to have real data, I would expect that you have an anti-racial policy that is scientifically based, and then it is credible. Being credible, it should be useful all over the country. What’s the future of that anti-racial policy to help the other police forces across the country to adapt to the reality that most Canadians perceive might exist but we finally have the real issue here, demonstrated by your data?
Ms. Fenton: We have shared it with other police services. Since then, other services have developed similar policies.
The Chair: But you don’t know the extent of it. Is it national?
Ms. Fenton: I’m not sure.
The Chair: No one has taken it upon themselves to spread it or convince the other police forces to share it with you? No? So, to whom should we address our suggestion —
Mr. Rheaume: Our chief.
The Chair: — that we should use it? Because I think it is a concern.
In my opinion, it’s a way to increase the credibility of police forces in the community when citizens know that they will be fairly treated. And when police are informed and conscious about ethnic distinctions, they have a tendency to better believe and cooperate with the police. Those seem to be fundamental issues considering the diversity that characterizes Canada now. I’m sorry to state the obvious, but it seems to me that it is something very important.
Mr. Rheaume, Mr. Grégoire and Ms. Fenton, thank you very much for your cooperation this morning.