Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 42 - Evidence - May 2, 2018
OTTAWA, Wednesday, May 2, 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 4:15 p.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Honourable senators, it’s my pleasure to welcome you this afternoon to resume our study of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts.
We are privileged to welcome this afternoon Mr. Brian Leck, Head of Legal and General Counsel for the Toronto Transit Commission. Welcome, Mr. Leck. He is accompanied by Ms. Megan MacRae, Executive Director, Human Resources. Good afternoon, Ms. MacRae.
[Translation]
We also welcome, via video conference, Ms. Natalie Léveillé, Coordinator, Legal Affairs and Compliance, Association du camionnage du Québec.
[English]
With the concurrence of Mr. Leck and Ms. MacRae, I will start with Mme. Léveillé since we are on video conference. We have a limited time and the technology can fail, as we have experienced at other times.
[Translation]
Ms. Léveillé, we will begin with you.
Nathalie Léveillé, Coordinator, Legal Affairs and Compliance, Association du camionnage du Québec: Thank you for having invited me to appear before you and for having agreed to hear the position of the Association du camionnage du Québec on Bill C-46.
I have been the Coordinator of Legal Affairs and Compliance at the ACQ for close to seven years now. My main role consists in providing front line legal advice to our members.
The ACQ represents over 500 businesses, from private and common carriers of goods to suppliers of products and services. Our members provide transport to all points in North America and are responsible for close to 80 per cent of paid transport operations in Quebec.
Our industry is very concerned by the legalization of cannabis and believes that this will have repercussions on society in general, and on workplaces and road safety in particular. Carriers have worked upstream over the past years in order to see to it that the drivers of heavy vehicles who are on the road are fit for duty and not impaired, either by alcohol or drugs. You must remember that when a driver leaves the terminal, it becomes difficult for the carrier to supervise or monitor his employee in any way, because his workplace is his rig and he is constantly on the move.
It is however a well-known fact in the industry that the majority of transport industry companies have for a long time now adopted internal zero tolerance policies regarding drugs and alcohol. Indeed, our efforts seem to have borne fruit, because throughout the country, trucks are amongst the safest vehicles on the road when it comes to impaired driving. Obviously, the trucking industry would like to see that continue.
In light of the risk to public safety posed by the consumption of alcohol and drugs including cannabis, our association supports the zero tolerance approach the government advocates regarding impaired driving. We are, however, concerned by the fact that there does not yet seem to be any approved detection device available, and we wonder whether police forces will be ready in time and in sufficient numbers.
In addition, we believe it is the government’s responsibility to provide clear guidelines to employers on expectations in the workplace regarding the consumption of alcohol and drugs. If the responsibility for managing the risk is transferred to employers, we think it is imperative that employers be authorized to put in place risk-attenuation measures, not only for carriers’ employees, but also for the general public.
We think this should also include the possibility of implementing comprehensive workplace testing policies, such as the ones that are required by the American federal authority responsible for road transport safety, the Federal Motor Carrier Safety Administration, the FMCSA. Indeed, since 1995, Canadian carriers and heavy vehicle drivers who travel in the United States are subject to very strict regulations that include alcohol and drug tests. This includes, among other things, random tests, post-accident tests, and follow-up tests when drivers return to work. The fact is that since this test regime was put in place, it can be said that the industry’s concerns about drugs and alcohol have practically been eliminated.
In closing, the Association du camionnage du Québec believes it is essential that Canada go forward and do the same thing by adding a provision either to Bill C-46, Bill C-45 or by amending the Canada Labour Code. The development of a complete workplace test program for professional drivers, including random tests, appears reasonable and necessary to us for positions such as those of drivers, where safety is essential.
I thank you for your attention. I will be pleased to answer your questions to the best of my ability.
The Chair: Thank you very much, Ms. Léveillé.
[English]
Mr. Leck, it’s my pleasure to welcome you. I understand you have a brief. I think it has been circulated. Honourable senators have the text in front of them. Mr. Leck, the floor is yours.
Brian Leck, Head of Legal and General Counsel, Toronto Transit Commission: Mr. Chair, honourable members of this committee, it is our pleasure to be here. We believe this is an extremely important matter that we’re here to speak about, and we hope that we can assist you in your deliberations.
Together with various other employers, including the representative you’ve just heard from and those who will follow us, TTC is recommending that either Bill C-45 be amended or the Canada Labour Code be amended to include a regulatory alcohol and drug testing framework to monitor and address employee fitness for duty in safety-sensitive industries, in particular in the transportation industry. This would include pre-employment, return to work, post-incident, reasonable cause and, importantly, random testing. We would then look to the provinces to do the right thing and follow suit, the suit that the federal government has taken the lead on.
Cutting to the chase here, perhaps the greatest area of controversy in this kind of a legislative framework is random drug testing, particularly involving marijuana use and utilizing oral fluid testing. I’d ask you to consider three questions that people have trouble with. Why is oral fluid technology appropriate as opposed to urinalysis or some other type of technique? Why should legislated testing be extended to workplaces by the federal government as part of what is developing today? And third, why do privacy concerns under the Charter and human rights legislation not override these initiatives?
Let me start with the technology. Megan MacRae will be expanding on this, but basic principles, I think, are important to understand. I think there’s a lot of misinformation around oral fluid testing. I’m going to refer to the decision of Mr. Justice Marrocco. TTC, you may know, back in May of 2017, went ahead with a random alcohol and drug testing program. We had been using oral fluid testing as part of our basic policy for about eight years prior to that, and we had been involved in a long, drawn-out arbitration. It wasn’t so much the oral fluid testing as it was the random testing that we introduced that then brought about a response, union-initiated, an injunction proceeding to try to stop us. The Honourable Mr. Justice Marrocco, the Associate Chief Justice in Ontario, allowed TTC to continue with its program using the testing methodologies it had in place under its policy.
I say to you that the technologies that are being used are sound and appropriate for workplace testing. Mr. Justice Marrocco, at page 52 in the decision, states:
. . . the procedures and methods that the [TTC] has chosen to randomly test for drugs are . . . superior to other methods of testing for drugs available on the market.
In other words, what TTC is doing is as good as it gets in terms of being able to test with the latest and most reliable technology.
In understanding how this technology is used, a key point is that oral fluid testing is able to test for recent use of a drug. That is fundamentally important to understanding oral fluid testing. It tests for recent use, and if the cut-off level is above a certain amount, then that combination provides strong evidence of a likelihood of impairment. The likelihood of impairment is at the time of the test.
This is very different than urinalysis, which tests for THC in the system, but it doesn’t tell you if the person is impaired in the workplace. If Canada and the federal government are proceeding with the legalization of marijuana, that presumes there will be some recreational use among citizens, and that is going to allow for some residual components. If someone on a Friday night at a party is smoking up, there are potentially some residual effects that may be there that would show up in a urinalysis test. But that is not what happens under oral fluid. Oral fluid tests address, right now, when you’re in the workplace, are you likely impaired or not? That’s important for privacy reasons and other reasons.
The judge acknowledges that TTC has high cut-off levels that create these short windows of detection. For example, with marijuana, the cut-off level for a positive test is 10 nanograms per millilitre cut-off of THC, and that cut-off is significantly higher than that used in some other jurisdictions. That really limits the detection window to about four hours prior to the test, addressing when someone is smoking up or whatever fairly soon before coming to work or in the workplace.
But then, importantly, based on expert evidence, including a base of clinical and scientific evidence, Mr. Justice Marrocco comments:
I am satisfied . . . [that] the time periods when oral fluid samples test positive for drugs —
In other words, over this 10 nanograms per millilitre for marijuana.
— overlap with the time periods during which these drugs impair the psycho-motor and cognitive abilities of the person tested. Therefore, there is a likelihood that the person who tested positive was impaired when tested.
Amongst other things, employees prone to using drugs will be deterred from doing that. They will come forward and voluntarily seek help or be deterred from doing it at all, or they ultimately will be detected.
I’m going to briefly touch on the notion of the workplace. Again, I’m going to refer to the comments of Mr. Justice Marrocco, who states:
In this case the workplace includes the subway, buses and streetcars that travel throughout the city. The workplace genuinely is Toronto itself.
We need to protect workers, and there are all kinds of occupational health legislation and Criminal Code legislation, but we also need to realize that many workplaces are highly and continuously integrated into our communities, into the daily lives of all citizens, including our children. This is about protecting everyone’s safety, not just workers in the sense of employees.
With respect to privacy, Mr. Justice Marrocco commented in the decision that he felt the testing utilized by the TTC was minimally intrusive. It really is an oral test by use of a large Q-tip that’s placed in the mouth for about five minutes. It is not invasive; it is pain-free. It tests for current impairment. There is no stigma, because 20 per cent per year of our employees in safety-sensitive positions are randomly tested, and the records for those who are negatively tested are destroyed within two weeks. There’s no ongoing record.
I have two final points and then I will pass on the baton. We have been involved in litigation for some eight or nine years at enormous expense and with no end in sight.
Madam Justice McLachlin commented, in the Irving case before the Supreme Court of Canada, “Isn’t this something that should be dealt with in legislation?” I wholeheartedly concur with those remarks.
The final point I would leave you with is that in all these other jurisdictions you’ve heard about — the United States, U.K., Europe, New Zealand, Australia, New South Wales, New York City — what’s brought about random alcohol and drug testing is a horrible fatal crash, and it’s a reactive situation. In Canada, we need to have the wisdom and the foresight to be proactive. In my submission, this type of program, as Victor Hugo would say, is an idea whose time has come.
The Chair: Thank you.
Megan MacRae, Executive Director, Human Resources, Toronto Transit Commission: My name is Megan MacRae. I’m the executive director of human resources at the TTC. I’ve had oversight of our Fitness for Duty program since 2011, so I’m intricately familiar with its evolution, including the introduction of random testing.
My colleague has made clear, as with the colleagues we’ve been working very closely with on the panel subsequent to ours, what our ask is. Much like the guest previous to us, we are asking that the federal government show leadership in amending Bill C-46 to require mandatory workplace testing for drugs and alcohol, including random testing.
The key points I wish to highlight for you today and misnomers that cause the TTC great concern are: the misnomer that there is not reliable technology to identify impairment due to cannabis or the proper cut-offs cannot be established; concerns associated with the initial screening cut-offs proposed in relation to roadside devices; and the value of deterrence. We’ve left you with several documents, which we won’t review, but feel free to refer to them during questions.
With respect to the technology, throughout this discussion, the emphasis has, understandably, been on roadside devices for criminal purposes. Criminal purposes and the workplace are not one and the same. The thresholds are vastly different. In the workplace, we, as employers, have a responsibility to ensure a safe workplace. As my colleague has reviewed, there is reliable technology to review impairment, including with respect to marijuana.
The critical element is carefully chosen cut-off levels, and this is supported by the experts in the field, such as those used in defence of our program. When the cut-offs are set at an appropriate level with robust mechanisms in place, we virtually guarantee against false positives. This has been omitted as a part of the discussion because we have been focused on roadside devices as opposed to the workplace and how the two can work together to support and enhance the safety of our society. As my colleague indicated, in our case, the workplace is the city of Toronto, which is the largest city in our country.
Of course, there’s a drawback to the technology that we utilize, and it may not be appropriate for roadside use. But again, we need to start having a discussion about how the workplace and criminal standards can work together to support safety in society.
With respect to the roadside technology, we all recognize it’s not where we would like it to be. We can’t sugarcoat that. We understand that it’s not perfect. We would suggest to you that to refer to a 25 nanogram screening threshold as zero tolerance is entirely inappropriate. Based on expert advice, the TTC has set 10 nanograms as the cut-off to determine likely impairment. We are not alone in workplaces that utilize this technology, and that is set this high to ensure that we can defend our program in the face of ongoing scrutiny and legal challenges.
Obviously, 25 nanograms as an initial screen is two and a half times our initial cut-off. We would suggest there is a confounding between acute intoxication and impairment that can impact safety in the workplace. Leaving aside the challenges that conflicting legal results can bring about to the workplace and society, we are concerned that this provides a false sense of security to the public.
Lastly, I’ll suggest that we’re alarmed at suggestions that a deterring effect is not a reason to introduce random drug and alcohol testing. The data that is presented in our summary notes, and will be followed by some of our colleagues, we suggest, is proof of that. Thank you.
The Chair: Thank you very much. I’m sure you will have a lot of interest among my colleagues in relation to your presentations from the two groups.
[Translation]
Senator Dupuis: My question is for Ms. Léveillé. You told us that people who work in transport in the United States have since 1995 been subject to very strict regulation. Does your association or any of your 500 members have data on offences committed in the U.S. that are not yet recognized as offences in Canada? Do you have any data for a given number of years on breaches that are not yet recognized as offences in Canada, but are strictly regulated in the United States?
Ms. Léveillé: Unfortunately I do not have that kind of data. Within the association and even in the industry, we have a lot of trouble obtaining such statistics. It is easier in the United States to get information through the businesses that manage the consortiums and collect data and statistics. But here, unfortunately, I’m trying to think of the authority that might have that type of information. I think it would be quite difficult to obtain.
Senator Dupuis: Thank you.
I have another question for the representatives of the Toronto Transit Commission. Would you have any specific recommendations on what should be amended in Bill C-46 to meet the standards you feel should apply to road safety?
[English]
Ms. MacRae: In terms of the specific language, we have not brought you specific language. We would like to see amendments requiring the workplaces to have mandatory safety programs that require drug and alcohol testing from the full gamut: post-incident, reasonable cause, random and post-treatment monitoring.
[Translation]
Senator Dupuis: Are you asking that we amend either the Canada Labour Code, or Bill C-45 on the legalization of cannabis? Today, we are talking about road safety, and so about Bill C-46. Is that what you suggested?
[English]
Ms. MacRae: We’re here to speak about C-46. While, of course, we recognize that C-46 deals with the criminal element, we are suggesting that in some form, whether it’s appropriate through that bill from a modification, or we recognize this is an accompanying bill to Bill C-45, or through the Canada Labour Code, in the most appropriate place.
[Translation]
Senator Boisvenu: Thank you very much to our witnesses. Mr. Leck, Ms. MacRae and Ms. Léveillé, your comments are very interesting. I have two questions for you. The first is addressed to Mr. Leck. Did I understand correctly that for the past eight years, you have been using an approved device to do saliva tests?
[English]
Mr. Leck: That is correct, we have. With reasonable cause and post-incident testing, TTC has been using the oral fluid technology. Back in 2008, one of our subway workers was killed in an accident that triggered the policy.
[Translation]
Senator Boisvenu: Can you use that device at different temperatures? In the winter, do you use it at lower temperatures that are not necessarily ideal?
[English]
Mr. Leck: Yes, we do. To touch on two points, distinction has to be made between the roadside screening oral fluid devices, which use this 25 nanograms per millilitre, and the devices TTC is using. We have to be careful not to mix criminal context, which is a roadside situation with much higher Charter rights, privacy rights and an immediacy about it, versus the workplace situation, where safety is paramount and there’s a different environment.
With our oral testing, there’s currently a two-day time period from the time of the test to the time of the result, and it’s a different type of oral fluid testing than what is before you, I believe, in terms of this quick screening device, in terms of reliability and those sorts of features.
[Translation]
Senator Boisvenu: I understand that this is a tool police officers will not be able to use.
Ms. Léveillé, I have questions about the position of the truckers’ association. First of all, are all of your businesses regulated by the federal or provincial labour codes?
Ms. Léveillé: To be specific, we are the Association du camionnage, we represent the trucking industry, and so we do not represent truck drivers as such.
I don’t have any data, but indeed most of our businesses are federally regulated since the trucks travel interprovincially.
Senator Boisvenu: So I understand from your testimony that the entire industry would be in be in favour of amending Bill C-46 in order to authorize random drug tests, in addition to alcohol tests, and to amend the Canada Labour Code in order to give businesses the same power American companies have to perform random tests in the workplace. Did I understand you correctly?
Ms. Léveillé: You understood very well. In fact, this creates a somewhat strange situation because in a given business, we may have drivers who travel between Canada and the United States, and other drivers who only do routes in Canada. In those cases, we recommend that carriers not register all of their drivers in consortiums, because drivers who only drive in Canada are not technically subject to regulations that would allow the tests. So, there are carriers whose drivers do the same type of work, heavy vehicle drivers who transport merchandise that may be just as dangerous, who occupy the same positions that entail risk, but only a proportion of those drivers are likely to be subjected to random tests. This is an issue we see within the same enterprise. You understood our request very well.
Senator Boisvenu: Someone who wanted to be unkind might suggest that you assign your higher-risk drivers to Canada, and those who are less so to the United States.
Senator Gold: Thank you for your presence, madam.
[English]
It was a fascinating presentation.
First, a question for information: I read quickly the justice’s opinion in the injunction case. Has it actually gone to arbitration yet? Do we have the results of the arbitrator’s decision?
Ms. MacRae: Seven years later, we continue to be in union evidence, so the answer is no. We expect perhaps in the next five to ten years to perhaps have a decision with respect to the arbitration, if we’re lucky.
Senator Gold: I ask the question because it’s important evidence that’s on the record through the judgment, but it was only against the standard for granting an injunction. I just want it to be clear so I could weigh the evidence. But that leads me to my other question.
What I found really interesting, especially in our study of Bill C-46, is your argument that the presence of cannabis, let’s say, in fluids tells us about recency of consumption and that recency of consumption above a certain level provides scientific evidence of likely impairment. Could you elaborate a little bit on that? And if you have the backup scientific evidence, could you provide it to this committee through the clerk? That would be helpful.
Ms. MacRae: Absolutely. I’ll go back to the injunction decision and refer you to paragraph 114. While this was a preliminary procedural decision, it’s very clear the superior justice made decisions of fact. It’s also important to note that, effectively, in a day and a half, what we have been hearing for seven years, the entire case was heard, including all of our expert witnesses. It’s important to note that the union did not cross-examine any of our expert witnesses in that respect.
In the documents you have had provided, you have summaries with respect to the various credentials of the experts that we have brought in, and what it comes down to in terms of the likelihood of impairment, roughly, is there’s uncontested literature that supports windows of usage with respect to various drugs, including cannabis. While we all understand that persons of different size, weight and experience will metabolize drugs differently, there are windows. When you overlap that window with a clear cut-off level, you can ascertain the recency of use such that it is likely impairment.
We have, again, uncontested evidence submitted through the injunction proceeding to support that notion. We are certainly happy to provide you that expert evidence. We have extensive expert evidence that we’ve accumulated over the years. But in paragraph 114 in that decision, the justice is very clear that he has accepted our science.
Senator Gold: I also listened with interest to your point about not wanting to communicate that a cut-off of 25 nanograms means zero tolerance. But would you agree nonetheless, especially in the criminal context, that one has to be careful about not exposing others, and that, in any event, the per se offences that have been created in Bill C-46 send a strong deterrent message that consuming cannabis prior to driving is simply not safe regardless?
Ms. MacRae: Respectfully, we wouldn’t agree that a 25-nanogram cut-off would send that message.
Senator Gold: I’m sorry. I didn’t ask my question properly. Would you agree that the per se offences in the code send a strong message that driving after having consumed cannabis is unsafe even though they’ve set a rather high level, because this is in a criminal context and they have to make sure of the privacy rights?
Ms. MacRae: No.
Senator Gold: No to which part of my three-part question? I’ll get better at this.
Ms. MacRae: In any suggestion that what’s been contemplated with such a high initial screen and a message of zero tolerance, the two just don’t fit together, based on our expert evidence. So from a workplace perspective, this runs the risk of massive conflicting results. You’ll see the letter that the TTC issued to the Ministry of Transportation in Ontario, which is looking to follow suit with Bill C-46. We have extensive concerns. But no, respectfully, we don’t agree that that sends a sufficient deterring message with a threshold that high.
[Translation]
Senator Carignan: Your testimony could also have been just as useful for Bill C-45, but we didn’t want to make you travel twice.
From what I understand, following the Supreme Court’s ruling in the Irving Pulp and Paper case particularly, you feel you do not have the necessary legal framework to put in place a random drug and alcohol detection test that would not be subject to challenges. As Justice McLachlin said, it’s up to the legislator to put a system in place and give employers the power to carry out random drug and alcohol detection tests, particularly in the case of critical jobs such as those of railway mechanics, airplane pilots and truck drivers.
In parallel, we have Bill C-46 which involves the criminal aspect. However, at this time, it does not mention random alcohol tests for train mechanics, airplane pilots and truck drivers; they are excluded from that part.
So you are asking that Bill C-46 be amended to allow random alcohol and drug tests for train mechanics, airline pilots and truck drivers. You are also asking that through Bill C-45 or through amendments to the Canada Labour Code or other legislation, a necessary legal framework be developed to allow such random detection tests in workplaces, so that you don’t constantly have to fight injunctions and other procedures. Have I summarized the situation well?
[English]
Ms. MacRae: We believe we can meet the Irving threshold with respect to our workplace, but we know, from discussions with various agencies, that many are waiting to see the outcome. We’re suggesting that is too far away, and we need clear direction. It’s consistently a fight. Other than that, effectively, that is our request, save and except the points we raise with respect to Bill C-46 and the actual cut-offs and how we’re concerned that a 25-nanogram initial threshold sends the message to the public that anything below that is not impairment. Of course, that would have absolutely dire consequences in a workplace setting.
Mr. Leck: In response to your question, I think there’s a fundamental difference to amendments sought under the Criminal Code, which is what we’re not doing, and that’s the reason we’re not suggesting amendments to Bill C-46. It’s a whole different approach and different standards.
We are seeking a regulatory regime to deal with labour issues, to deal with the workplace, which are non-criminal but can still have serious consequences for workers to deter them from doing things that could impact the public. So, whether it’s under the Labour Code or under Bill C-45, my perspective is that we’re not quite there yet to have technology that can be relied on in the criminal context. I’m not a criminal lawyer, but that’s my view.
The other problem is that the litigation now is crazy, and there are conflicting decisions. There’s a test that says that, essentially, you need to demonstrate a problem in the workplace. You’ve got to wait until you have a number of people who are obviously drunk or obviously on drugs. You’re allowing an unsafe workplace to continue and continue so that you can build a case to go to court that then takes 10 years to get to the Supreme Court of Canada. That’s not the right way to deal with this.
Senator McIntyre: Thank you both for your fine presentations.
I’ll start off with an observation. There’s no question that, in Canada, the law related to alcohol and drug testing for employees in safety-sensitive positions is unclear. I think it’s imperative for the federal government to clear the air on this issue and introduce legislation correcting this situation as soon as possible.
Ms. MacRae, I have a short question for you on the per se limit cut-off. Testimony heard so far from Justice officials is such that the 5-nanogram THC per se limit is based upon impairment considerations, while the 2-nanogram THC per se limit is based upon public safety considerations. I’d like to have your point of view on that. I will add: Should a zero tolerance policy be applied for those who operate heavy machinery and conveyances?
Ms. MacRae: From our perspective, we recognize that the initial screening is set at a higher threshold, and then the subsequent impairment testing is at a lower threshold and based on blood. We don’t have concerns with the latter part of that. Our concern has to do with the initial oral fluid roadside screen and a suggestion that that, as we understand, at 25 nanograms, is a zero tolerance.
With respect to what that zero tolerance looks like, that is based on the context of our workplace and the case law thus far. It is set at 10 nanograms, which is high, we’ll say, because of the dispute and the ease of dispute. I don’t have an answer for you, in the absence of that dispute resolution mechanism, on what that right number would be. I would suggest it’s lower than 10 nanograms. It will depend on the technology utilized. But we think that should be based on the science, not limitations of a roadside screening device.
Senator McIntyre: Obviously, there are various levels of nanograms, and the more I hear testimony and the more I read on this topic, the more I find that directly correlating a concentration of THC to impairment appears to be difficult.
Ms. MacRae: I encourage you to review the decision of Justice Marrocco, who, upon hearing all of the witnesses and reviewing the extensive expert reports, found that the saliva test is a reasonable surrogate for the blood test and that it is very possible to determine an appropriate cut-off level for THC. I will expand on that to say that, with respect to a panel of drugs, the only one that is in dispute is THC. We hope that you’ll be pleased, in reviewing our evidence, that we can set cut-off levels for that too.
Senator McIntyre: So the saliva test is the way to go.
Senator Jaffer: Thank you very much for all three of your presentations. They’ve been very useful. Of course, you live this. For me it’s new, so I may have some naive questions.
From what Senator McIntyre was saying, there isn’t certainty. Because the Supreme Court — and I understand the human rights — is not in favour of mandatory testing. They say it violates employees’ rights. Am I correct on that?
Ms. MacRae: We would suggest that it is very case-specific. Our read on the case law is that, should you be able to demonstrate proof of a problem in your workplace, you absolutely can do random testing. We believe that’s what our initial injunction decision stands for and that it echoes that sentiment.
With respect to human rights, again, it’s case-specific. We don’t understand the various tribunals to say that you cannot do it. It’s that you need to be cognizant of individual circumstances in order to ensure that you are, on an individual basis, considering individual rights and balancing them against the collective.
Senator Jaffer: When we talk about individual rights, and I’m sure you have this in place, as case-based, individuals are different too. Some people may have prescription drugs that have nothing to do with cannabis, which may show different results in the tests. Do you have anything in place to take into account people’s prescriptions? What are the safeguards?
Ms. MacRae: Of course. I’ll echo the comments from our colleague who spoke earlier with respect to the United States and the program that’s been in place since 1995. DOT regulations have rigorous processes in place to safeguard against that very concern.
How that works is when the initial test gets reported from the laboratory, it gets reported to a third party that’s called a medical review officer. This medical review officer, upon receiving what we call a laboratory positive, will contact the employee and ask the employee if there is a reason why oxycodone showed up in their system. The employee has the opportunity to discuss and provide a medical certificate as justified reason why that would have taken place. If, for example, someone has knee surgery or dental surgery and the medical review officer is satisfied, that gets reported to the employer as a negative.
This is where I say we guarantee against false positives due to the rigour of not just the testing mechanism but the process we have in place. Certainly for something like medical marijuana, for example, in a scenario like that, they’re obliged under our policy to make us aware. Should they be taking it and operating safety-sensitive machinery, for example, the same process will apply. The medical review officer will contact. If there is a justified authorization, it will get reported to the employer as a negative with a safety-sensitive flag. That signals to us that something is happening and to make sure the employee is sent for medical support to understand when they can safely come back to work. It is not held against them in a disciplinary fashion.
Senator Jaffer: You spoke about the American standards, and I wanted to comment. There may be people who have a disability and the testing may be different because they may be on prescription drugs. Ms. MacRae answered it quite fully, but I just want to make sure if there was anything else you wanted to add.
[Translation]
Ms. Léveillé: On the American side, they decide at what point the test is considered positive. There are a series of procedures that have to be followed and we really don’t have a word to say if we want to travel on American soil. So, regarding forbidden substances, when a test is positive, we have to follow the procedures and see a specialist. They then determine if the employee can return to work under the regulation. Since this is a justified professional requirement in the eyes of the board, the carriers do not have anything to say about it and the regulation is quite strict about that.
[English]
Senator Pratte: Mr. Leck, you mentioned that the spark for this program was a terrible accident that happened, I think, in the subway. When did that accident happen?
Mr. Leck: I believe it was in or about 2007, and it was an individual who the coroner’s report showed had recently taken marijuana prior to the incident.
Senator Pratte: Thank you. The program was introduced in 2010. Then you introduced random sampling as such a year later. Is that correct?
Mr. Leck: No. We introduced a program that had essentially everything but random. Random was controversial with unions and others. We took a conservative approach. We had the pre-employment testing. We had return-to-work testing that’s based on urinalysis. Reasonable cause was oral fluid and post-incident was oral fluid. That went ahead. The union filed a policy grievance, and that’s been ongoing for the last seven or eight years in arbitration, with no end in sight. That’s going on. About a year ago, roughly, we did introduce random testing, and that was opposed.
Senator Pratte: So what happened to convince you that what you were doing previously was not sufficient and that you had to introduce random sampling?
Mr. Leck: We found the numbers of positive results were going up and there was other evidence that suggested to us we have a problem here that’s going to result in another tragedy. Megan can provide you with a bit more detail.
Senator Pratte: Thank you.
Ms. MacRae: In 2011, there was another tragedy at our workplace where there was a passenger fatality on board a bus. This is a year into when we had our post-incident testing. The operator took the post-incident alcohol test and refused the drug test and was found to have marijuana on his person. This caused us concern of the blatant disregard of our policy.
At that time, we sought board approval to introduce random testing. We delayed, for a variety of reasons, including some of the labour relations considerations, and we expected a result by now. Between 2014 and 2015, our overall numbers, which you have included in your package, virtually doubled. We decided that notwithstanding the outcome in Irving, we felt at that time we could meet that threshold. We had no choice but to try to take this on.
Senator Pratte: So random sampling, as such, has been in place since 2016?
Ms. MacRae: For one year, May 8, 2017. It’s quite a complicated endeavour, so it took some time to implement.
Senator Pratte: And you believe you meet the Irving test because you can demonstrate you have a real problem?
Ms. MacRae: Whether or not we meet the percentage of Irving, we believe that we have sufficient evidence to demonstrate a problem. Again in your materials, you will see the number of passengers that we transport. Regardless of the Supreme Court decision in Irving, we believe that we are unique with public transportation. We have the city of Toronto as our workplace. There are far-reaching implications. Whether that percentage is met, we’re mostly concerned about the number of incidents. In 11 months, we’ve had 43 incidents of random testing.
The Chair: Are they alcohol or drug?
Ms. MacRae: A mixture, heavily weighted towards drugs. What is not in your materials is 100 per cent of our incidents from a post-incident perspective are drugs. What that tells us is that we have a real challenge. While we can more readily detect alcohol, drugs are very challenging to detect.
Senator Pratte: I’m sorry, what is an incident in the statistics?
Ms. MacRae: An incident would be in a random circumstance where somebody has been identified to take a random test and has either blown an alcohol level that surpasses our cut-off or a drug. You will see in the statistics two or three incidents of refusals, but for the most part they are positive results. It’s broken down for you.
Senator Pratte: Thank you very much.
Ms. MacRae: You’re welcome.
Senator Sinclair: I gather from Senator Carignan’s question that you’re asking us to really deal with a labour issue here. I don’t imagine you’re asking us to criminalize the conduct of employers for failing to put in place a random drug testing system, are you? I want to be clear on that.
Mr. Leck: That’s correct. I’ve followed the developments here to some degree, and I’m not a criminal defence lawyer, but my take on it is that the technology may have problems in terms of meeting this beyond a reasonable doubt threshold. I just don’t think you’re there yet to do that. I think it’s equally effective if you have legislation that is non-criminal legislation to regulate these drug and alcohol tests in the workplace.
Senator Sinclair: I’m glad we agree because I couldn’t see any way that your suggestion would fit into a Criminal Code context. But I do see the labour law issue here, so I wanted to ask a couple of questions to clarify what you’re getting at.
It’s very clear that this committee is being asked to consider two pieces of criminal legislation, and you’re asking us to look at the issue from a labour standpoint as well. I’m not sure that we’re well placed to do that. Assuming the others don’t agree with me, do you have a legal definition or a definition of safety-sensitive workplaces that will help us? Obviously, driving big trucks, flying airplanes and driving trains are clear, but what else are we talking about here?
Mr. Leck: I will let Megan fill in the details, but essentially it’s not an industry as much as it is employee positions. It’s safety-sensitive employee positions, and Megan can elaborate in terms of how we define that.
Senator Sinclair: The reason I ask that is because it could also include doctors, nurses and other people in other fields and professions. I’d like to know what you mean by it.
Ms. MacRae: In our workplace, we have various categories, but I’ll answer that question more broadly with respect to the groups we’ve been working with to raise awareness to the concerns that workplaces have over the past several years. That runs the gamut from petroleum type, pulp and paper mills, transportation, which is heavily focused, and trucking. We’ve been focused in those spaces in particular, and you’ll hear more about that from the next panel, including a list of the various associations and the employers that TTC has been working with.
Senator Sinclair: Ms. Léveillé, did you want to add to that?
[Translation]
Ms. Léveillé: For our part, I have spoken a lot about heavy vehicle drivers but we must not forget that there are other safety-sensitive positions such as those of the mechanics who repair those vehicles, or the forklift drivers who sometimes carry huge rolls of paper that weight several tonnes.
That said, the difference is that the heavy vehicle driver is constantly on the move. And so it is difficult to monitor and track him or her. In the case of the other two types of workers, they are of course on site and there can be several people who can observe their behaviour. I think there might be a distinction to be made between those positions, or a separate category. Even if to our eyes there are risks, on our side it’s rather the monitoring and follow-up aspect that is difficult for employers.
[English]
Senator Sinclair: Thank you. Do you anticipate an increasing need for this kind of an approach in the workplace because you anticipate there will be a rising situation of problems because of the legalization of marijuana?
Ms. MacRae: We believe that the challenges in workplaces related to substance use certainly predate the legalization of cannabis. We would suggest to you that workplaces have been ill-equipped to deal with this issue. It is an existing problem that is only going to be aggravated. So yes, we expect the problem to be aggravated, but I cannot suggest to you that we don’t recognize that the challenge was there previous to this bill. However, we need to be cognizant of the increasing alarm.
Senator Sinclair: Madame Léveillé?
[Translation]
The Chair: Ms. Léveillé, did you hear Senator Sinclair’s question? What impact do you think the legalization of cannabis and its use could have on safety within your industry?
Ms. Léveillé: In fact, we don’t necessarily expect an increase in consumption by truck drivers, especially in the case of those who transport merchandise to the United States. Nothing will change for them because they are already subject to monitoring. However, this is speculation.
I’m straying from the topic of random tests, but regarding increased consumption, we mustn’t forget that heavy vehicle drivers are not alone on the road. There are also all of the other drivers, whose consumption might increase. There could be more people on the roads who will have consumed cannabis, which gives rise to concerns about the number of police officers who will be present.
For us and for the drivers, this represents another challenge, since they have to share the road with these people who are not professional drivers. It may become a problem in the sense that the majority of accidents are not necessarily caused by heavy vehicle drivers, but rather by the other drivers. We have statistics to back that up. That is a big concern for us regarding the work to be done by police officers and those who monitor the general population that will be on the road with our professional drivers.
The Chair: Thank you.
Senator Dupuis: My question will be very brief and concerns setting the limit at 10 nanograms. Could you explain what led you to set that limit at 10? What scientific data did you have?
[English]
Ms. MacRae: It was the advice of our expert. We have a forensic toxicologist, a forensic psychologist and experts in addiction medicine. There’s a summary of their credentials in your package. It was purely at the advice of our expert evidence and extensive reports in conjunction — and this is very important — with the heavily unionized industry within which we work.
[Translation]
Senator Dupuis: Excuse me. Do you have any data in your documents that can be made public? I don’t want to force you to reveal anything.
[English]
Ms. MacRae: All of them are public and we’d be happy to send them. They were all submitted with our affidavit for injunction.
The Chair: Thank you very much.
[Translation]
Senator Carignan: I don’t know if you provided specific figures, but in your testimony to the House of Commons, it says that from the time when you put in place random tests on May 8, in less than five months, you had 16 positive results and over 50 per cent of these were for cannabis. Did I understand the data correctly? What are the figures today, if we can update them?
[English]
Ms. MacRae: That is in a separate package that was just issued this morning. There are 43 results, two or three of which I believe were refusals. But the trend there continues in that approximately 50 per cent of those positive results are for marijuana. Again, that’s 43 in the 11 months.
[Translation]
Senator Carignan: Out of how many employees?
[English]
Ms. MacRae: That works out to just under 2 per cent of employees, so in the 11 months since we’ve introduced the program, the positive rates have gone from 3.8 per cent to 1.8 per cent.
The Chair: Thank you for the figures, by the way. I think they are very helpful.
Senator McIntyre: This is more of an observation. Irving is often cited, which is a 2013 decision from the Supreme Court of Canada, but we have to remember it was a split decision of the Supreme Court, with a strong dissent by three justices, including the Chief Justice, so that decision needs to be reviewed down the road.
Ms. MacRae: Yes, we agree.
The Chair: It’s my pleasure to thank you very much for your contribution. It was very much appreciated around the table.
[Translation]
Thank you very much, Ms. Léveillé.
[English]
I will ask you to withdraw so our next panel can be seated, because we have limited time to use this room tonight. Thank you.
I am privileged to introduce our second panel this afternoon. They are from the Railway Association of Canada, Mr. Gérald Gauthier, Acting President. Welcome, Mr. Gauthier. He is accompanied by Mr. Simon-Pierre Paquette, Legal Counsel, Canadian National Railway. Welcome, Mr. Paquette. We also have the Federally Regulated Employers Transportation and Communications, Mr. Derrick Hynes, Executive Director. Good afternoon, sir. Also, we have the Canadian Ferry Association, represented by Mr. Serge Buy, Chief Executive Officer.
Welcome to all of you. I will invite Mr. Gauthier to make a presentation first, each around five minutes, because, as you will see, there is a lot of interest around the table to question you.
Gérald Gauthier, Acting President, Railway Association of Canada: I’m the Acting President of the Railway Association of Canada, which represents more than 50 rail operators consisting of six freight Class 1 railways, 40 local and regional railways as well as many passenger rail operators.
[Translation]
Simon-Pierre and I will be pleased to answer your questions at the end in the language of your choice. I gave you a document to which I may refer during the question period. My statement this afternoon will be quite similar to what you have just heard, but we will give you the railway perspective on the issue.
[English]
Canada’s rail network operates every day, year-round, through all major population and economic centres and goes over some 30,000 road crossings. Our sector employs approximately 30,000 people, many of whom hold safety-critical positions. This includes employees who operate our trains or work in rail traffic control. Our freight railways carry all goods that sustain Canada’s economy and its people, including many dangerous goods.
We are committed to running the safest rail network possible. A key part of this is ensuring that railway employees are fit to work. Our industry is concerned that the legalization of marijuana will contribute to further normalize its use and will increase at-risk behaviour in the workplace.
In its November 2016 final report, the Task Force on Cannabis Legalization and Regulation highlighted the importance of addressing the safety implications of workplace impairment arising from the consumption of marijuana in safety-sensitive settings such as transportation. However, workplace impairment has not been addressed in either bill relating to marijuana.
The continued absence of a regulatory structure to proactively screen for employee impairment can compromise safety in Canada. By introducing Bill C-46, the government was primarily seeking to ensure that people who consume marijuana and alcohol do not get behind the wheel and drive. This reflects a shared apprehension on the part of the government that legalization will increase at-risk behaviour in a way that must be addressed by Parliament. However, the absence of any proactive measures to secure safety-sensitive workplaces from increased at-risk behaviours is a notable omission.
The inability to pre-emptively detect if a train operator is impaired, such as through random testing, can compromise rail safety. This is particularly the case in a context where marijuana, a substance that negatively affects vigilance, depth perception and reaction times, would become freely available for recreational consumption by anyone in Canada.
Implementing measures to determine if workers in safety-critical positions are impaired would be a major step in improving railway safety. To accomplish this, we need a common framework established by Parliament, an established impairment level along with a government-mandated standard for instruments to detect impairment. Introducing these, with increased employee education and research on impairment, would help create a more robust safety regime to help improve workplace safety.
U.S. rail legislation not only permits random testing but indeed statutorily requires it from anyone operating trains in the U.S., including Maintenance of Way employees. Canadian railway employees crossing into the U.S. are also subject to such regulations, including random testing. This is a well-accepted safety standard, and we see no reason why Canadian and U.S. regulations on such a critical issue should continue to differ.
[Translation]
I’ll spare you by skipping some paragraphs. I’ll quickly jump to the conclusion.
[English]
We must protect our critical transportation network, public safety and employee safety, and the safety of our community and environment depend upon it. This is why we are here today requesting measures aimed at proactively securing Canada’s transportation infrastructure with increased risk of impairment be put in place to accompany the marijuana legislation. We strongly believe that these steps are necessary to ensure we can maintain our commitment to running the safest rail network possible.
The Chair: Thank you.
Derrick Hynes, Executive Director, Federally Regulated Employers Transportation and Communications: Thank you, chair and committee members, for this opportunity to present on Bill C-46.
I represent FETCO, an employers association of federally regulated firms in transportation and communications. We have existed as an association for over 30 years. Our members employ about 500,000 workers or nearly two thirds of all workers in the federal private sector. FETCO members are household name organizations. A list of our members is found in the appendix to the submission that we will leave with you today.
It is important that I paint a picture of the work our members do to get a full understanding of the safety risk of which we will speak today. FETCO members employ the following: Air traffic controllers, crane operators, heavy equipment operators, pilots, train conductors, train engineers and truck drivers, to name a few.
It’s important to note that FETCO has been collaborating on this issue for the past two years with a wide range of employers and employer associations, both federally and provincially regulated. The tie that binds all these organizations together is that they all engage in safety-sensitive work where workplace and public safety concerns are paramount.
Our key message is this: With the introduction of Bill C-46 and its companion bill, Bill C-45, the Government of Canada has failed to address the impact of recreational marijuana on the workplace. This is a serious oversight with potentially catastrophic consequences for workers, employers and the public at large. There is already a safety gap in Canada as it relates to the presence of alcohol and drugs in the workplace. The legalization of cannabis is only going to make this problem worse.
Evidence from U.S. states that have already legalized cannabis, such as Colorado, reveal startling trends. The data shows that consumption is going to increase when legalization occurs. This matters to employers. We know the same increase in use is going to find its way into safety-sensitive workplaces.
We, therefore, ask that your committee amend Bill C-46 in such a way to introduce a mandatory alcohol and drug testing framework in safety-sensitive federal workplaces that focuses on the full complement of testing approaches — pre-employment, reasonable cause, post-incident, return to work and random.
A framework will accomplish several objectives. First, it will serve as a deterrent for individuals being at work under the influence of alcohol or drugs. Simply put, random alcohol and drug testing works. It is a preventive measure that changes behaviour and enhances safety.
Second, it will bring Canada in line with other jurisdictions in this important public and workplace safety space. Testing regimes exist in Australia, Great Britain, India and the United States, as just a few examples. The U.S. has been mandating random alcohol and drug testing in transportation since 1995. Canadian companies operating cross-border, such as railways and trucking companies, must follow these mandatory rules while operating in the U.S.
Third, a new legislative framework in Canada will provide certainty for all parties — employees, unions and employers. Uniform, mandatory rules will apply in all workplaces. Policy will be set by the government, consistent with all other workplace safety rules in the federal sector, and costly, lengthy and confusing legal proceedings will be avoided.
While workplace safety in the federal sector is mandated under Part II of the Canada Labour Code and the associated Canadian Occupational Health and Safety Regulations, these documents are largely silent on the issue of workplace impairment. The unfortunate result is that the rules get established by judges and arbitrators. There are dozens of cases that point in many different directions. Employers are confused as to how, when and where they can undertake alcohol and drug testing. Clear direction is required from government.
Here are some excerpts from the dissent in one of the leading cases, the Irving Pulp and Paper case, at the Supreme Court of Canada:
The New Brunswick legislature has within the scope of its legislative authority the power to take drug and alcohol testing outside the purview of the collective bargaining process . . . some experts have suggested there is an “overwhelming argument” in this country for “legislative direction and definition that would add consistency, uniformity of meaning and predictability for all workplace stakeholders.” . . .That decision, however, is one for the New Brunswick legislature and not for this court. . . .
Further, the ground is shifting in Canada as awareness around workplace impairment improves. The Canadian Nuclear Safety Commission just moved forward, in November of 2017, with fitness-for-duty regulations that include alcohol and drug testing, including random testing. The Transportation Safety Board, also in November of 2017, in the Carson Air crash, strongly endorsed the use of alcohol and drug testing, including random testing, for the aviation industry. There is a noticeable legislative gap in Canada that needs to be addressed.
Finally, a quick note about privacy: Some groups will argue that alcohol and drug testing infringes an individual’s privacy. Yet Bill C-46, will allow random roadside alcohol testing. This is thought by government to meet the Charter test. If privacy rights are outweighed for an individual driving a single automobile on a highway, the same logic must apply to a pilot flying a plane with 200 passengers, a train conductor hauling 50 cars of chemicals, a bus driver carrying 60 passengers, a trucker operating on a major highway or any worker whose workplace actions could impact the life of a co-worker or the public.
We believe a legislated solution is required. We ask that you amend Bill C-46 to accommodate these important concerns.
The Chair: Thank you very much, Mr. Hynes.
Now, on behalf of the Canadian Ferry Association, Mr. Serge Buy.
Serge Buy, Chief Executive Officer, Canadian Ferry Association: The Canadian Ferry Association is the national voice for the ferry sector in Canada. Our membership includes ferry owners and operators, including Crown corporations, provincial governments, Indigenous communities, private businesses, municipalities and more. We have some of the leading companies in the marine transportation sector.
With about 55 million passengers, 21 million vehicles and billions of dollars worth of goods transported annually, the ferry sector is a crucial part of Canada’s transportation infrastructure. We reach communities that cannot be reached otherwise, and it is important for those communities.
Our members are committed to the highest safety standards possible. This includes keeping our passengers and crews safe and employing all available means to do so.
All across Canada, every day, ferries transport people from one place to another — people to work, patients to hospital, students to school.
Ferries operate — and this is something that needs to be noted — in one of the most extreme environments in Canada, one requiring constant vigilance and where the slightest error can result in a catastrophic loss of life. Indeed, should an incident happen on board a ferry in a remote place, like Haida Gwaii and the Cabot Strait, emergency efforts would not be immediate, and precious time could mean the difference between life and death.
Since the government has taken steps toward the legalization of cannabis, we think that it is only prudent that the government also provide the tools to ensure that our transportation system remains safe. This includes random drug testing for employees in safety-sensitive positions.
I note, Senator Sinclair, that you asked a question about the definition of safety-sensitive positions. For our sector, it mainly means all the people on the ferry as, when you are required to evacuate the vessel, all the people need to be answering “present,” and be able to work to the best of their capacity.
Prior to the introduction of Bill C-45 and Bill C-46, the federal government’s Task Force on Cannabis Legalization and Regulation specifically noted the potential danger of workers in safety-sensitive positions being impaired, specifically citing the transportation sector.
Like other witnesses here, we were surprised to see that the issue of workplace safety was not addressed in either of the bills introduced. This issue is not new. In various ways, industry has been advocating for random drug testing for many years, and alcohol testing as well.
It has been long established that using cannabis can negatively affect the cognitive ability of an individual. For those working in a safety-sensitive position, such as crewing on a passenger vessel, this could pose a serious safety risk. Couple this with the extreme marine environment, and the potential for loss of life rises exponentially. While many of our members have no-tolerance and fitness-for-work policies, they are only able to test employees following an incident, when it is already too late.
From time to time, ferries are required to respond to marine-related emergencies. This can include search and rescue activities, first aid, CPR, deploying lifeboats and other life-saving endeavours. It is crucial that crew members performing those duties not be impaired.
As a comparison, the U.S. Department of Transportation’s policy on random drug and alcohol testing extends to safety-sensitive positions across all sectors, including marine. This has been a legislated requirement for more than two decades. As some of our ferries make international crossings, this is creating double standards in the industry, where some crews are subject to random drug testing and others are not. As the other witnesses around the table will attest, inconsistencies like this across the transportation sector are creating a double standard in the industry.
Our members strongly believe that allowing random drug and alcohol testing would act as a deterrent and is part of a greater risk-mitigation strategy for the transportation sector as a whole. Indeed, this has been the experience of Washington State Ferries. In fact, in my speaking with the HR representative from Washington State Ferries in advance of this appearance, she was completely shocked and taken aback when told that Canada does not currently have a random drug and alcohol testing policy. While some other groups have raised the issue of testing infringing on the employee’s right to privacy, the Canadian Ferry Association believes that the safety of the sometimes hundreds of passengers on board a vessel must outweigh this. Random testing strikes an appropriate balance between privacy and safety.
Additionally, employers have a responsibility to provide a safe working environment for their employees. In an already dangerous environment, like on board a passenger vessel in inclement weather, having an impaired crew member could be potentially disastrous. Random testing is another way to ensure that workplaces are as safe as possible.
Allowing this legalization to move forward, Bill C-45 and Bill C-46, without legislating the ability for employers, in our case, ferry operators, to ensure that their crews are not impaired is short-sighted. Ultimately, this will lead to endless litigation, as we are seeing with the TTC cases that you heard about a few minutes ago. Policies will be set by judicial intervention rather than the legislative process.
As a collective, we have a responsibility to ensure our transportation system is safe, and allowing random drug testing for safety-sensitive positions is another way toward ensuring this is a reality. Federal leadership is needed on this issue today.
Senators, last week, April 28 marked the National Day of Mourning for workers who have been killed or injured or suffered illnesses due to workplace-related hazards and incidents. We don’t want to be here in a couple of years to tell you about incidents created due to legislation that has not been fully thought out.
[Translation]
Senator Dupuis: Thank you for being with us today.
I have a question for the representatives from Federally Regulated Employers — Transportation and Communications and the Railway Association of Canada. In your brief, you recommend that Bill C-45 be amended. You referred earlier to amending Bill C-46 to include the workplace.
Do you have any statistics? I see that your employer coalition on the legalization of marijuana includes the Railway Association of Canada and the Toronto Transit Commission, which told us earlier that it did not recommend amending Bill C-46. I’d like to get some clarification on that. I’d also like to know whether your members have any data on offences committed by employees while in the U.S., where the rules are stricter, as compared with their conduct here, in Canada.
[English]
Mr. Hynes: On the first question around Bill C-45, you caught me doing something that I think many of us do, and that is cutting and pasting. This presentation has been used multiple places, and some of the slides have been replicated elsewhere. Our reference and intention today is to speak specifically to Bill C-46, which is why we’re here. We’ve already appeared in front of committee to talk about Bill C-45. Today is exclusively about Bill C-46.
[Translation]
Senator Dupuis: I asked the question so that you would know we do indeed read the material you send us.
[English]
Mr. Hynes: What’s great about it is that’s really at the end, and you got right to the end of the presentation. I don’t even get to the end of the presentation, so thank you for doing that.
On the second question, I do not have specific data, but my colleague to my right probably can speak to the U.S. experience because he represents an organization that operates cross-border.
[Translation]
Senator Dupuis: That’s why I asked Mr. Gauthier the question also.
Mr. Gauthier: Our members who operate on both sides of the border, like CN, a representative of which is here with me today, have that information. Although it is confidential, I will ask them to send it to you, assuming it remains confidential.
Senator Dupuis: Thank you.
Mr. Gauthier: Unless Mr. Paquette is prepared to share that information voluntarily. It’s up to him.
The Chair: Would you care to comment, Mr. Paquette?
Simon-Pierre Paquette, Legal Counsel, Canadian National Railway, Railway Association of Canada: I don’t have the information with me, but I would be glad to contact you about that.
That said, senator, you asked about the U.S., so I’d like to read you an excerpt from a 2004 report done by the Federal Railroad Administration, or FRA, the railway regulator in the U.S. It compared the laws in the U.S. with the laws in Canada.
[English]
FRA believes that the measures that have been implemented to date in Canada are neither comparable to the requirements of part 219 —
— title 49 of the U.S. regulations.
[Translation]
That’s the part that sets out the rules around random testing.
[English]
— nor adequate to safeguard United States railroad operations were Canadian train crews to engage in extensive train operations in the United States.
[Translation]
The FRA goes on to say:
[English]
Canadian rule G —
[Translation]
— the rule requiring train crews to report for duty free from the influence of drugs or alcohol —
[English]
— has several significant differences from part 219. First, it fails to provide for alcohol and drug testing of railroad employees to detect and deter violations. Prior experience with the Rule G approach in the United States has revealed that such a rule alone, without random and other tests required by part 219, is not effective in detecting and deterring drug and alcohol abuse among safety-sensitive railroad employees.
[Translation]
I will wrap up with this bit:
[English]
Railroads were able to detect only a relatively small number of Rule G violations owing, primarily, to their practice of relying on observations by supervisors and co-workers —
The TTC spoke to that earlier.
— to enforce the rule. FRA found there was a “conspiracy of silence” among railroad employees concerning alcohol and drug use.
[Translation]
That was the context for why Part 219 expressly set out the purpose of conducting random alcohol and drug testing: deterrence. It’s in the legislation, in section 219.601, I believe.
Senator Boisvenu: I’d like to thank the witnesses. Your input will certainly help us make Bill C-46 better.
Did I understand correctly that, unlike the Toronto Transit Commission, none of your employers conducts random testing?
Mr. Gauthier: We don’t conduct random testing because it is not permitted under any legal framework. We conduct testing when an employee is hired for a safety-sensitive position and when an employee is promoted to a safety-sensitive position. We also conduct testing following an incident or before an employee returns to work, but we do not conduct random testing in Canada, of course.
Mr. Buy: Not in Canada, but when ferries cross the border, employees are subject to testing.
Senator Boisvenu: That means you do not conduct testing unless you have reasonable cause to believe that the individual is impaired. Is that correct?
[English]
The Chair: Could you say “yes” for the minutes of this committee?
Mr. Hynes: What I was saying to that was yes, there are certainly organizations where testing does occur, reasonable cause, pre-employment, post-incident, return to work, those sorts of things, but not across the board random testing. Our members that operate cross-border, yes, are currently doing random testing on the U.S. side.
[Translation]
Senator Boisvenu: Unlike Canada, the U.S. takes a prevention-based approach. Currently, are there any data comparing Canada and the U.S.? Are there any data comparing drug- and alcohol-related incidents in the two countries, any data that would show U.S.-style testing is fairly effective in reducing the number of incidents?
[English]
Mr. Hynes: This gets back to the question from Senator Dupuis a couple of minutes ago, which I didn’t quite fully answer. The appendix for the material we provided does point to some examples in the U.S., in the London Underground and New South Wales. Where random testing protocols have been put in place, the number of positive hits reduces, so it does have that deterring effect that we think means it’s successful. That’s what we would like to see in the Canadian context as well so that it would then become a preventive measure. It’s not meant to be a punishment but a preventive measure so that we change workplace behaviour.
[Translation]
Senator Boisvenu: In the trucking or shipping industry, are there any data that compare incidents in the two countries and that clearly show random testing reduces the risk and therefore saves lives or limits property damage? Are comparative data on Canada and the U.S. available? I believe England does random testing; France, too.
Mr. Buy: We don’t have any such data right now, senator, but we will try to find some in short order.
Senator Boisvenu: Great. Thank you.
Senator Carignan: I want to talk specifically about Bill C-46, since a good chunk of your remarks could apply to Bill C-45 as well. Bill C-46 makes it an offence under section 253 for a person to operate any aircraft, railway equipment or motor vehicle with drugs or alcohol in their system. The legislation provides for that offence. The “bizarre” part is that random alcohol testing applies only to individuals operating small vehicles and cars, not aircraft pilots or train conductors. None of those people are subject to random drug testing.
Have you inquired about that? You have registered lobbyists, so have you contacted the minister’s office to ask why random testing applies only to a woman who is driving along in her car, but not to someone who is operating 40 chemical tankers that could explode in the middle of town? Did you ask that question? What was the answer?
[English]
Mr. Hynes: Yes. We’ve asked that question multiple times of multiple people. The answer is not always as satisfying as we would like it to be. We have made the exact point you have just made, to anybody who will listen. It seems odd to us that this bill will allow a random roadside alcohol test for someone driving a Prius but not for someone piloting an aircraft or driving a transport truck or some of the examples that we gave earlier. We don’t get a satisfactory answer to that question. We wish we did.
On the drug side, I can only assume that this bill did not also include a random drug element because I’m not sure the roadside technology is yet robust enough to allow an immediate response, and we talked about that earlier in the previous panel, to get that immediate response for which a consequence could occur. That can only be the assumption that I draw.
But we are not getting satisfactory answers to that, which is why we keep coming back to the fact that we think this problem requires a legislative solution where we discuss this through the front door to come up with a framework that works to deter this sort of behaviour in the workplace.
[Translation]
Mr. Gauthier: We are not so much interested in punishment as we are prevention. We want to prevent incidents from happening, which means we need to be able to detect whether an employee has anything in their system before they get on a locomotive and start their route. It also has to do with what is practical. It is not practical for the police to sit at a crossing to flag down a locomotive in order to test the operator. That’s not something we really looked at. What we care about, as employers, is being able to conduct testing in the workplace.
Senator Carignan: However, the two are not mutually exclusive, if I understand you correctly.
Mr. Gauthier: That’s correct.
Mr. Buy: I would like to add something, if I may. Bill C-46 deals with the Criminal Code, but our concerns have more to do with the Canada Labour Code and related legislation. In response to the questions we asked, we were often told that the courts would deal with that aspect. We prefer to be proactive rather than reactive. I think it’s important to have sound legislation that prevents this kind of problem, instead of waiting for an incident to occur and having the court rule for everyone.
Senator Carignan: Do you agree it’s a crime that should be subject to detection?
The Chair: Yes, that’s the fundamental difference between the two. A previous panel made that point, in fact.
[English]
Senator Gold: I’ll be brief because many of my questions have been answered. Following up on the last point of Mr. Buy, might I invite others to comment on whether, quite apart from your recommendation on Bill C-46, you would in fact also recommend or be happy with a framework that’s set out in the context of the Canada Labour Code and the appropriate provincial legislation? Would that meet your safety concerns, which we all share, by the way, in terms of ensuring the safety of both workers and people they serve?
Mr. Hynes: What we said on this issue is we’re generally agnostic as to where it ends up. We’re looking for a solution. The legalization of marijuana has initiated a very important conversation that we need to have. So to amend this bill and point to a change in the Canada Labour Code, if that works from a legislative perspective, we would be supportive of that. If there’s another avenue you would recommend that would work better, as obviously this is your expertise and not ours in terms of where it fits and how it gets aligned, we would be supportive of that as well.
[Translation]
Senator Gold: Mr. Gauthier, do you share that view?
Mr. Gauthier: Yes, absolutely. We want to see the problem stemming from the legalization of marijuana fixed, but, as lawmakers, you surely know the best way to do that.
Mr. Buy: What I want to make sure of is that we aren’t simply told, “Don’t worry because your concerns will be dealt with at a later time.” We have legislation that will legalize marijuana, but we need to do both things at the same time. It would worry us if the legislation were passed, but we were told not to worry because all the other stuff would be dealt with in the next few years.
The Chair: I take that to mean you don’t want any election promises.
Mr. Buy: Better it come from you.
[English]
Senator Gold: You’ve all recommended random testing and you’ve given some indications of some of the results in other jurisdictions. The Imperial Oilcase in the Ontario Court of Appeal, which admittedly was some years ago, found that drug testing programs had not yet been shown to be effective in reducing drug use, work accidents or work performance problems. Could you comment or share your own research with me regarding the benefits of random testing?
Mr. Hynes: I referred to that earlier. The appendix of the material we left with you speaks to some specific studies and examples where it shows in the U.S., in the London Underground, New South Wales, the railway industry where the introduction of random testing has resulted in fewer positive results. Therefore, we can assume there was a change in behaviour and less use at the workplace. That really, to repeat what Mr. Gauthier said earlier, is what we’re looking for. It’s a preventive approach.
The conversation always becomes about random, but really what we’re looking for is a comprehensive suite of testing, as I noted in my presentation, from pre-employment, post-incident, reasonable cause, return to work and random, so that we can have that comprehensive suite, along with educational programs in the workplace, to get to that larger perspective around changing behaviour and around prevention.
[Translation]
Senator Pratte: On the issue of balancing privacy and safety, we talked about mandatory roadside testing and the fact that, through Bill C-46, the government would be imposing mandatory roadside testing on regular people, but not the workers you represent.
The government argues that, in terms of road safety, it is a fact that hundreds of people lose their lives every year in accidents caused by impaired drivers. What would the counter-argument be, from your members’ standpoint?
Are there problems that would also be tied to the Irving Pulp & Paper decision? In that case, the Supreme Court held that, in the absence of a demonstrated workplace problem, the implementation of random testing — a significant invasion of privacy — is not justified?
What major safety problem resulting from drugs or alcohol in your workplace would warrant random testing, which does, after all, constitute a rather significant invasion of privacy?
[English]
Mr. Hynes: What we’re really trying to say here is workers, unions and employers all take safety very seriously. We don’t want to paint a picture that there is some crisis here and the sky is falling, but we do have concerns that alcohol and drugs are present in the workplace, and the legalization of marijuana is going to exacerbate those concerns. We believe there is going to be an increase in use, and we believe by presumption that that will find its way into the workplace. What we’re really looking for is a solution that allows some balance between the privacy rights that get articulated quite well by one side versus the workplace safety concerns that we believe are critical. That’s the solution we’re looking for. There has to be some balancing between them where we can achieve that.
[Translation]
Mr. Buy: Your question was about striking a balance between privacy rights and safety. Our answer will always be the same: the right to life trumps everything. That’s the most important thing. What matters most is the right to life of our crews and our passengers, so that they can go home at night without being exposed to life-threatening incidents. There have been incidents from one coast to the other. In one instance, a boat drove right onto the shore, and marijuana was likely involved. In another, two people died further to a boat sinking and alcohol seems to have played a role. These things happen, but we want to avoid them.
The Chair: Thank you.
[English]
Senator McIntyre: Gentlemen, thank you for your presentations.
There’s no question that safety is the key. Safety is the main objective in both workplace and public safety. This committee is currently studying two important bills, Bill C-45 and Bill C-46. Bill C-45 deals with marijuana, and Bill C-46 deals with offences relating to conveyances. Keeping safety in mind, in your view, should the federal government pass legislation mandating alcohol and drug testing in federally regulated, safety-sensitive positions prior to the legalization of marijuana as per Bill C-45?
Mr. Hynes: Yes. To my colleague’s point from earlier, what we don’t want is a solution where we’re told we will sort that out later. We think that the time is now to have this discussion and to amend one or both of these bills to point to a solution that gives us an approach to testing to enhance that safety piece.
Senator McIntyre: In other words, before legalizing marijuana, settle the issue in the workplace?
Mr. Hynes: Yes, or at least in parallel.
Senator McIntyre: What are the risks in terms of road safety that you expect with the coming legalization? I draw your attention to, I believe, page 7 of your brochure that you circulated. It has to do with safety impacts in Colorado.
Mr. Hynes: What we’re trying to show here, pulling out some of the data from Colorado, is that when cannabis was legalized for recreational purposes in Colorado starting in 2013, we’ve seen a change in behaviour in the state. On page 6 of our presentation, you will see that Colorado has gone anywhere from eighth to fourteenth for highest consumption in the country to first or second across all age groups, so it seems logical to us that that will find its way into the workplace. If you go to next page, we are pulling out data to show how the number of traffic-related deaths, emergency room visits and hospitalizations increased after the introduction of the recreational use of marijuana.
Senator Pate: I’d be interested to hear from each of you about what efforts your organizations make in terms of ensuring employers provide sufficient education to employees about the risks of drug use — in this case, cannabis — while on the job.
Second, where you detect use, what treatment options are provided by your respective employers, either as employers or your employer members, to employees? And are there conditions about those?
Mr. Hynes: My light’s on. Does that mean I’m first?
The Chair: You seem to be the favourite.
Mr. Hynes: Thank you for that. I’m not sure I appreciate that or not.
What I will say is that most larger employers have policies in place to respond to and address alcohol and drug use in the workplace. I don’t know the specifics of all of those policies. What I will say — and this is one of the key points of our presentation — is that I don’t think the application of those types of policies occurs across industry and across the economy. I think there are lots of gaps in some organizations where there are no policies in place, and I think that might be a more critical issue in smaller organizations where they may not have the capacity to do it.
One of the points that we have made is that employers don’t have a clear sense of what the rules are, so we point to the Irving case or to many of the other arbitrations or what’s happening in some specific organizations. Because there is no clear sense for what the rules are, there really is no clear understanding. Therefore, policies may not necessarily flow.
Where they exist, I think that there are commitments made in them around education, certainly, as a key part of those policies.
To the second part of your question, I think what we really talk about here are two streams of thought when it comes to alcohol and drug use in the workplace. There’s the accommodation side, so if an employee has some sort of a disability when it comes to alcohol or drug use, then employers are well aware of the obligations under the Canadian Human Rights Act and there are provisions put in place to accommodate those employees and deal with the disabilities as they occur. What we’re really concerned about is the recreational use and how that’s going to find its way into the workplace. That is the primary reason we’re here today.
Senator Pate: Anybody else?
Mr. Paquette: Senator, I would point you to paragraph 4 of rule G of the Canadian Railway Operating Rules, which states:
Employees must know and understand the possible effects of drugs, medication or mood-altering agents, including those prescribed by a doctor, which, in any way, will adversely affect their ability to work safely.
I think it’s important to set that in the context that the regulatory regime puts the onus on employees who choose a career in railroading to inform themselves as to the possible repercussions of any substance they take, whether or not it is prescribed or legal.
Senator Pate: So your answer is no education; the responsibility is on the employee? If there’s a disability or an addiction, what treatment options are made available?
Mr. Paquette: To pick up on the second half of your first question, I can obviously only speak with respect to CN. We will conduct punctual education campaigns. As Derrick mentioned, we have one of Canada’s most progressive policies on drug and alcohol testing in the workplace, and it has been in place for nearly 20 years. We conduct extensive training of our managers on the application of that policy and what to look out for.
As Gérald mentioned earlier, prevention is really the key point here. It is very much in a railroad’s interest to make sure its employees are keenly aware, first of all, of their obligations and the railroad’s obligation to maintain a safe workplace, and also to make sure they understand the context, and they’re reminded of that context on a regular basis.
To pick up on the second portion of your question in terms of treatment options, again, I don’t want to repeat what Derrick mentioned earlier, but I would mention one example as a case in point of just how important it is for CN to be proactive. One of the components of our policy that is preventive in nature is that if an employee loses his or her driver’s licence, even in an off-duty context, there is an onus put on the employee to report that on a confidential administrative, meaning a non-punitive, non-disciplinary, basis to the company precisely so we can make sure the employee is assessed by a qualified physician. If there is an underlying condition, which means whatever caused that employee to lose their licence in the first place as a result of a DUI, that can be addressed and support provided so that it doesn’t manifest in the workplace.
Mr. Buy: I can provide you an answer, senator. We go from companies such as B.C. Ferries, which has about 3,000 employees and transports over 20 million people, to Marine Atlantic on the East Coast, which is a federal Crown corporation.
[Translation]
The Société des traversiers du Québec, or STQ, is a provincial organization.
[English]
Those organizations definitely have policies in place and education and support their employees.
But we also go to small companies that cross, for example, the Ottawa River, with four or five employees, if that, but with hundreds if not thousands of passengers on a daily basis. Safety is also important and the means of those companies to provide that education is fairly limited. We also have casual employees who come during the summer, and that is another issue. We have operators in the North and Indigenous communities as well where we need to make sure they all have the means.
The thing is, senator, this is an issue created by this legislation, and this legislation should also provide a solution. Just putting the onus back on the employer and saying, “Please provide education and offer treatment options,” clearly it will be done, but it’s not sufficient. Thank you.
Senator Pate: What’s the process now for alcohol if someone has addiction issues or drugs?
Mr. Buy: It depends on the company.
Senator Pate: If there are examples you can send us of progressive policies around treatment options and to allow companies to comply with the Canadian Human Rights Commission provisions, I would appreciate that. Thank you.
Senator Tkachuk: There was a pilot not too long ago, I can’t remember what airline, and it was alcohol. Obviously, alcohol can be detected by smell, the same with marijuana smoke. There is some physical evidence that is more difficult to intake during work hours, for example. But if you put your mind to the problem that edibles are going to present, they can be put in a lunch bucket and they can be had while working in a dangerous situation. It seems to me this is an area that needs — I’ll let you comment on that because I’m sure you’ve talked about that same issue.
Mr. Hynes: You’ve hit the nail on the head. That is really one of our fundamental concerns. Alcohol, from a reasonable cause testing perspective, is not easy, but it’s generally easier. There are clean signs of alcohol use such as blood-shot eyes, smelly breath and slurred speech. When it comes to other substances, they don’t manifest themselves in the same way. There aren’t always obvious smells. When it comes to edibles, as you’ve just suggested, this is why testing is so important. To get to my colleague’s point earlier, this legislation is what’s really going to introduce that new risk. It is certainly a concern.
Mr. Paquette: If I may pick up on that point and the example that you just mentioned, the airline was Sunwing and the pilot essentially made his way to the airport, through his colleagues, to the cockpit of the plane before passing out and was at that point reported. That essentially exemplifies exactly the issue that cries out for government leadership on this point.
Just to tie your question in with an earlier question from Senator Pratte, what initially drove the implementation of random testing in the U.S. was a 1987 Amtrak accident in Maryland where 16 people died because a train conductor, who by his own admission and confirmed by tests, was impaired precisely by marijuana.
When you look at examples like the flight you described, we as an industry — I think I can confidently speak on behalf of everyone here — are not looking to have Canada’s Maryland before proactive legislation is put in place to essentially require a consistent, uniform framework for drug and alcohol testing across the country.
Senator Sinclair: I gather that, in keeping with my previous question to the previous panel, your focus in this suggestion is to be able to be empowered through the use of random drug testing. We’re only talking about drug testing. Random alcohol testing is a different issue. We’ll leave that aside. Through the use of random drug testing, you’re seeking some legal authority to be able to stop people from taking on duties related to a safety-sensitive position. Am I correct here?
Mr. Hynes: Yes.
Senator Sinclair: As an employer, you want to be able to say to somebody, “We think you’re impaired, you have to take a random drug test and therefore if you fail, you’re not going to fly the plane, drive the train or drive the truck?”
Mr. Hynes: What you described can already be done. If we think that, testing can already be done. The piece we’re looking for is a random, computerized output where, on a schedule, a certain proportion of the workplace is tested as a preventive measure.
Senator Sinclair: So your randomness is going to apply to everybody, regardless of whether they are actively engaged in a safety-sensitive position at that particular moment?
Mr. Hynes: No. If they’re in the pool that gets determined to be safety-sensitive, they would be part of the collection for potential random tests.
Senator Sinclair: That doesn’t answer my question.
Mr. Hynes: You asked would everybody be in the pool whether in safety-sensitive work or not. I said no, they wouldn’t.
Senator Sinclair: That’s not what I said.
Mr. Hynes: Okay, sorry.
Senator Sinclair: If everybody who is going to be tested is going to be called upon to submit to a random drug test, regardless of whether they’re about to perform a safety-sensitive duty, that’s the authority you’re seeking. Is that right?
Mr. Hynes: Yes, they would be in the pool of employees who would be doing safety-sensitive work.
The Chair: If they are in a category of people whereby they identify that person is potentially a risk if that person is not in full control of his or her capacity?
Mr. Hynes: Correct. Yes.
Senator Sinclair: So a truck driver, a train operator or a ferry operator who happens to be at home would be subject to a random drug test, even though he’s not actually operating at that particular point in time. Is that the authority you’re seeking?
Mr. Hynes: That’s probably better answered by you since that’s an example in the U.S. where you do it.
Senator Sinclair: I just want to know the extent to which randomness is going to apply here.
Mr. Paquette: If I understand your question properly, railroad employees are subject to Rule G whether they’re on duty or subject to duty.
Senator Sinclair: Subject to call. I saw that, yes.
Mr. Paquette: So it would be in that context that that regulation would apply. But if an employee is not subject to duty, as has been mentioned before, there’s no interest in delving into what employees do on their own time.
Senator Sinclair: Does anybody else want to respond?
In 2009, the Canadian Human Rights Commission issued a paper in which they outlined the problems around random drug testing and random alcohol testing, which they distinguished as between each other. They pointed out the human rights issues that it raises and pointed out that random drug testing and random alcohol testing are like requiring people to undergo medical examinations, so it involves personal invasion. They said that since a random drug test cannot measure present impairment and can only confirm that a person has been exposed to drugs at some point in the past, sometimes as much as several weeks in the past, a positive test cannot determine whether a person was impaired on the job. Do you want to respond to that?
Mr. Hynes: Yes. That paper was 2009, and the point that we are making, which was confirmed by the Toronto Transit Commission testimony from earlier, is that the testing has advanced quite considerably since that time and can indicate recent use in a window that points to likely impairment.
Senator Sinclair: Within the previous four hours, I think the previous panel talked about.
Mr. Hynes: That’s correct. Yes.
Senator Sinclair: So drug use within the previous four hours would be available from a random drug test but doesn’t necessarily mean the person is impaired?
Mr. Hynes: Well, I can’t speak to the expertise put forward in the Toronto Transit Commission brief, but certainly their experts in those briefs will point out, with some certainty, that if the use is within that window, it does point to likely impairment in the workplace.
Senator Sinclair: Thank you.
The Chair: On a second round.
[Translation]
Senator Carignan: I went to the U.S. and I met with people in Washington. You may have heard about it. They were quite shocked to learn we didn’t conduct any random drug testing on aircraft pilots or train engineers. In the workplace, they, themselves, as federal employees, are subject to such testing.
Would you say that, in your employers’ workplaces, particularly in the transportation sector, the U.S. is currently better-equipped to legalize cannabis across the states than Canada, which is preparing to do so across all provinces and territories? The Americans have, after all, been conducting random testing since 1995.
[English]
Mr. Hynes: I’d say yes. They have been doing this since 1995. They have a framework in place in the transportation sector, as my friends have indicated. There is a testing protocol in place. They have experience in this space, and, as a result, presumably when cannabis is legalized in those states where these industries exist, they would be, I would assume, better equipped to address it.
Senator McIntyre: You’ve addressed the issue of risk. I just want to make an observation on the management of risk in a workplace environment. It seems to me that the risk should be shared equally between the employer and the employee. However, it appears that the onus is placed on the employer to manage this risk, whereas it should be shared equally between the employer and the employee. Can I have your view on that?
Mr. Hynes: I don’t know the exact provision, but I think the Canada Labour Code does put the ultimate responsibility for safety with the employer. We do share philosophically the point that you raise, that it is a shared responsibility. We operate in a federal sector where we have a very robust and healthy tripartite relationship among government, the labour movement and the employer community. As a result, I think we do believe philosophically that it is a shared responsibility as a result.
The Chair: Mr. Hynes, are you part of the consultation that is conducted by the Department of Transport in relation to the issue of trying to come to terms between the three parties — the union, the employers and the government — in relation to establishing a framework whereby better safety would be met with random testing and all the other initiatives that could be taken to increase safety in your industry?
Mr. Hynes: It’s not the Department of Transport. I’m a part of an initiative under the Minister of Labour. The Occupational Health and Safety Advisory Committee, which is a committee appointed by the Minister of Labour and is tripartite in nature, meets a couple of times a year to discuss, in a collaborative way, occupational health and safety provisions under the Canada Labour Code and the associated regulations. About a year or year and a half ago, we struck a subcommittee of that committee to look specifically at workplace impairment. We have met four or five times in the interim to discuss this issue.
The Chair: Is there a preliminary report or outcome from those meetings? Do you have a schedule to come to a conclusion? Or am I being too optimistic?
Mr. Hynes: Perhaps you are slightly too optimistic. There is a general agreement that workplace safety is of critical importance and all the parties take it extremely seriously. When it comes to this particular issue, the parties, particularly the labour movement and the employer community, are certainly not in the same place. Does that mean we’ll never get there? I don’t think so, but our discussions to date have not brought us to a place where we’re yet comfortable saying we’ve met the goals from our perspective.
The Chair: So there are no documents that have been released that we could consult?
Mr. Hynes: That I’m aware of, no. All the minutes from those meetings are public documents. They are posted on a website. In terms of conclusions or agreements, no, I don’t think we’ve gotten to that point. We’re certainly having what I think is generally preliminary conversations around some of the issues as it relates to workplace safety, impairment and drug and alcohol use in the workplace.
The Chair: Thank you very much, Mr. Gauthier and Mr. Paquette, on behalf of the Railway Association of Canada; and Mr. Hynes from FETCO; and Mr. Buy from the Canadian Ferry Association. You have been most helpful in helping us understand the implications of Bill C-46. Thank you.
(The committee adjourned.)