Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 42 - Evidence - May 3, 2018
OTTAWA, Thursday, May 3, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, met this day at 10:34 a.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Good morning, honourable senators. It’s my pleasure to welcome you this morning, resuming the study of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances).
We are privileged this morning to welcome, from the Royal Canadian Mounted Police, Mr. Wade Oldford, Chief Superintendent and Director General, National Forensic Laboratory Services. He is accompanied by Ms. Gillian Sayer, Toxicology Scientific Officer.
I’m sure, Mr. Oldford, you know the procedure around this table. We will give you the opportunity to present the issues related to Bill C-46, and my colleagues will have an opportunity after that to exchange views with you.
[Translation]
Thank you for accepting our invitation. You have the floor, Mr. Oldford.
[English]
Wade Oldford, Chief Superintendent and Director General, National Forensic Laboratory Services, Royal Canadian Mounted Police: Thank you, honourable senators. It is a pleasure to be invited to speak to you today.
The RCMP’s National Forensic Laboratory Services’ mandate is to provide quality and timely investigative support services to law enforcement agencies across Canada, excluding Ontario and Quebec, who manage and operate their own forensic laboratories. NFL services include document and counterfeit examinations, as well as biology, explosives, firearms, toxicology and trace evidence forensic analysis and interpretation.
In the context of your study of Bill C-46, I would like to elaborate briefly on the NFL services as they relate to drug-impaired driving, the impact of the proposed bill on the NFLS, as well as the RCMP’s proposed way forward in anticipation of an increase in requests for toxicology services.
NFLS toxicology services provide support for the enforcement of drug-impaired driving laws, including the forensic analysis of biological samples for drugs and alcohol, the interpretation of analytical results in relation to legislated per se limits, and the provision of opinion letters and expert witness support to the courts.
Cases are received from all RCMP contract provinces and territories, including RCMP detachments and municipal policing agencies. Requests for scientific and technical support can also be submitted by Crown prosecutors for cases relating to criminal investigations.
In a typical impaired driving investigation, a driver who is stopped on suspicion of impairment is subject to an initial investigation to identify the potential involvement of alcohol and/or drugs. Testing for impairment would first be conducted using the approved screening device to confirm alcohol as a potential cause. Should the device fail to confirm alcohol impairment, further testing would be initiated for use of drugs, such as the Standardized Field Sobriety Test.
Exhibits are received by the RCMP’s laboratory for examination by a forensic toxicologist. Extraction and analysis of samples are conducted within the laboratory, and analytical data and results are reviewed. An interpretation is concluded and a report is generated.
Analytical forensic toxicology reports — consisting of drug findings, quantitation, uncertainty, interpretation and conclusions — are then issued to the police agency, including a conclusion statement that generally assesses the possible role of the drugs in the case — in other words, the extent to which the drug and its corresponding concentration relate to impairment and to the safe operation of a motor vehicle.
It is important to note that NFLS’s forensic services, including forensic toxicology, are currently operating at or close to full capacity. Although the number of new submissions as a result of the new legislation will depend upon the enforcement effort, it is anticipated that there will be a significant increase in workload for drug-impaired service requests with the introduction of roadside testing.
It is also anticipated that there will be a significant increase in the requirement for pretrial technical and scientific support by forensic toxicologists to prosecutors. Scientific support could also be required for roadside screening devices, including an increase in the number of requests for court attendance by forensic toxicologists to provide interpretation in answer to challenges to evidence.
In an effort to determine whether private sector forensic toxicology laboratory capacity existed to assist in meeting the expected increase in volumes, an extensive research study was conducted by the RCMP and a formal request for information was launched through Public Services and Procurement Canada. Based on the information collected and responses received, it has been determined that there is currently no existing accredited capacity in Canada to conduct this work.
In order to increase laboratory capacity quickly, the RCMP will expand the current operations of the NFLS toxicology service as early as July 2019 by converting some of its current laboratory space from a focus on alcohol toxicology to drug toxicology and by reprioritizing forensic work. In addition, by early 2021, the RCMP would establish an interim forensic laboratory by refurbishing an existing Government of Canada facility and will extend the use of this facility out 10 years. Once fully ramped up, it is anticipated that NFLS toxicology services will be in a position to adjust to the estimated increase in service request volumes stemming from the new legislation.
NFLS toxicology services are also developing other mechanisms to assist in responding to the anticipated increase in submissions. For example, we plan to modify workflow for drug-impaired driving cases with high throughput to provide quick turnaround times with a focus on only the drugs listed in the legislation, use certificates whenever possible and provide focused, accelerated training of scientists and technologists.
While the projected service request volume could be mitigated somewhat by the introduction of administrative sanctions by provinces and territories, an increasing demand for forensic toxicology capacity will remain. NFLS will continue to work with its partners and stakeholders to ensure that Canada’s law enforcement community is provided with timely and reliable services.
Again, I thank you for this opportunity to speak with you, and I would be pleased to respond to any of your questions.
The Chair: Thank you very much, superintendent.
[Translation]
Senator Boisvenu: We asked the RCMP to provide us with statistics on the number of evaluators available seven days a week, and the number of detachments where an evaluator is available seven days a week. We still have not received that information. The information we did receive is practically indecipherable. We would like to receive more specific information on the number of detachments where evaluators will be available seven days a week.
I looked at the RCMP budgets for 2017 to 2021. There are no budget increases for laboratories but there are cuts of $1 million for this year and $2 million for next year. Three million dollars will be added back in three years. For the following two years, there is no apparent budget increase.
With the increase in cases you just referred to, how will you be able to deliver results that can be used in court if your budget is being cut?
[English]
Mr. Oldford: Thank you, senator. I apologize but I think for the first part of the question I was late getting to my translation. However, I believe you were asking about the number of evaluators for the roadside screening. I don’t have that information specifically with me, but I could provide that back in writing if the committee so wishes.
[Translation]
Senator Boisvenu: We were given the number of evaluators per region, but not the specific numbers of RCMP detachments where an evaluator is available seven days a week. We need more detailed information.
[English]
Mr. Oldford: At my previous attendance here, the RCMP organization would be looking at ensuring that there is an appropriate number of drug evaluators, drug recognition experts in areas, but there are certainly always challenges.
[Translation]
Senator Boisvenu: That is not my question. You will undergo approximately $3 million in cuts over this year and the next. The $3 million is being brought back for 2019-20. In 2021-22, there will be no increase. For the next four years, you will have the same budget as your current one and you are telling us that there will be an overload of work related to scientific evaluations. How will you deliver on this with these budget cuts?
[English]
Mr. Oldford: In this year’s budget of February 2018, money was allocated for the RCMP for forensic laboratory capacity to support drug-impaired driving. It would be that money we would be relying upon to build the capacity that we’re talking about here today.
[Translation]
Senator Boisvenu: I have the Treasury Board document here. It shows $1 million less for 2017-18, and $2 million less for 2018-19. Three million dollars is being added back in 2020 and in 2021 there will be no increase.
I see in the document that there is no increase planned for marijuana. How can you deliver results with budget cuts?
[English]
Mr. Oldford: Again, senator, it’s my understanding from an organization perspective that money has been set aside in Budget 2018 for building the internal capacity within the National Forensic Laboratory Services. We would be relying upon that money to build the capacity we are speaking about here today.
[Translation]
Senator Dupuis: Welcome, Mr. Oldford and Ms. Sayer.
I have a question about the second-to-last paragraph in your presentation. In the French version it is the first paragraph on the last page. You state that you will have to adjust to an increase in submissions. You expect faster turnaround times for drug-impaired driving cases because you will be focusing only on the drugs listed in the act. I am interested in the last two examples you provided. What do you mean by “use certificates whenever possible?” Can you tell me about training that will be provided for scientists and technologists, please?
[English]
Mr. Oldford: In referencing certificates, we are talking about the drugs that would be listed in the legislation that speaks to a per se limit. That is, producing a certificate within the lab that talks about the concentration of that drug in blood that would be above that threshold and then to rely upon a certificate to the courts for the purposes of the prosecution.
[Translation]
Senator Dupuis: And training?
[English]
Mr. Oldford: For the training, we would be focusing on the drugs listed in the legislation, and our training would be more focused because we would be focusing on those drugs only.
[Translation]
Senator Carignan: If I have understood correctly, the analysis services are operating at full capacity presently. You have not found alternative solutions in the private sector that could lighten your workload and the expected increase; have I understood correctly?
[English]
Mr. Oldford: Right now, again, we are starting to build that capacity for the increase in intake that we are expecting, yes.
[Translation]
Senator Carignan: You are referring to the laboratory. Is this a typo? Did you say that the current operations of the laboratory will be expanded as soon as July 2019 — not 2018?
[English]
Mr. Oldford: No. We will be building some internal capacity by July 2019, and then we’ll have more capacity online early in 2021. So it’s going to be a staged —
[Translation]
Senator Carignan: So I understood correctly.
In terms of the increase in volume, you said that right now people are being tested for alcohol impairment first and are only further tested for drug impairment if they test positive for alcohol impairment. I also understand that if a person has already tested positive for alcohol impairment, police will not test them for drugs and will only focus on charging them for alcohol-impaired driving. Therefore, if the police doesn’t go further in its search for drugs, this would reduce the burden on the toxicology laboratory, right?
[English]
Mr. Oldford: Again, I can speak to the lab portion of your question, senator, but, obviously, it would make much more sense, with the current legislation and the science that we have to support, that the investigating officer would rely upon the alcohol first. Then, throughout that investigation, they would have to make a decision about whether alcohol was completely responsible for the impaired driving or if there were maybe other factors. I think the way each of those investigations would follow would probably be somewhat similar but somewhat different as well. If there is an understanding that it’s not just alcohol but alcohol and potentially other drugs, then a sample would be collected, and that would be sent to the lab for further analysis.
Senator Jaffer: Thank you very much for being here and for your written notes, which are very useful. I’m going to continue with what Senator Carignan was saying. You do this every day; I don’t. So correct me. The way I’ve always understood it is that say someone is stopped and the police officer suspects impairment, it’s first at roadside, or you take them — still within two hours, right — to the police station and do the testing. Where I would like a clarification with what you said to Senator Carignan is this: If you see that there is further impairment, will you be doing this just with observation, as you have done in the past? How will you know that there is impairment with alcohol and drugs? What would you be looking at?
Mr. Oldford: Thank you for the question. It’s kind of outside of the forensic lab analysis component, but, that being said, I think I can speak somewhat generally — and I’ll qualify that — from my time working in a patrol car. While many of these investigations are very similar, they are always a little different as well. It’s not a specific answer to your question, but I think it would depend on the case, the totality of the facts of the case that are being presented to the investigating officer. It may involve the amount of evidence collected from the driving evidence that they witnessed before. Maybe the individual was stopped at a checkpoint so there was no time or availability for that evidence. So it would depend on how we would make that decision.
Senator Jaffer: You and I both, at the moment, aren’t aware, which is fine. I have so many questions; I’m going to move on to another question. I come from B.C., where the alcohol equipment has continuously been challenged, so much so that our government has had another way to deal with this issue, but there is this concern about the constitutionality of the devices. I could go on talking about that, but the chair will cut me off. So I’m going to ask you: Is it possible to use the existing technology, such as interlock devices, alongside zero-tolerance campaigns, to reduce harms associated with driving under the influence of drugs?
Mr. Oldford: If I understand correctly, the zero tolerance would be for alcohol, for the interlock. I’m unaware of any device that exists that would test the driver for the ingestion of drugs, other than alcohol, that would allow that.
Senator Jaffer: The more I look at this, the more I’m getting concerned — and maybe you will make me feel better in the sense of not being so concerned — because the science on this has specific limits. Impairment for one person may be different from impairment for another. For example, Bill C-46 may identify a person who has cannabis in their system, but it may not translate to impairment because, for those who have taken these drugs for a long time, their impairment is different from those who take it for the first time, casual users. How are you going to prove that that person is impaired?
Mr. Oldford: I think there are probably a couple of components to an answer to that question. First of all, I’ll go back to your first statement. The science is new, and the science will take some time to evolve and mature, much like the alcohol experience did. Then, I think, with respect to the question around impairment and back to your point where maybe different levels of drugs in different persons mean different things on different days, that’s going to come back, as well, to the evidence that is before the investigating officer because, again, it depends on how they came across the driver, whether they witnessed an erratic driver or not, and that would have to be part of the investigation in totality, what that would look like.
Senator Jaffer: Chief, the biggest concern I have on this is the testing, the devices. We still haven’t quite got the alcohol devices right. There are still always challenges. This is not news to you; you know that. There are all kinds of ways that lawyers challenge the alcohol device, and there will be even more here. I just feel that — I can only speak for B.C. — as the courts got so clogged with the alcohol-impaired-driving cases, I’m concerned with how you are going to deal with all of the challenges that are going to come with the drug-impairment cases. I know you are not dealing with the court system, I get that, but from your part?
Mr. Oldford: From my perspective, it will be an area that I’ll have to monitor or manage very closely because it’s going to be some of the same toxicologists that will be required in court that I will be depending upon to do the analysis as well. That goes back to wherever we can, we’ll use certificates in the court system so that it does minimize the time of our experts in court for these constitutional-type challenges around impairment.
Senator Pate: Thank you very much, both of you, for joining us. You explained a bit of the process that’s used by toxicologists in laboratories. I’m curious about how long that process generally takes from the time you stop someone until you have all of the analysis done.
Second, given what you said in your response to Senator Boisvenu around the costs, from where will the resources emanate for you to do the extra work that you are anticipating with Bill C-46?
Mr. Oldford: Thank you. First of all, to the first part of your first question, the time it takes, it depends. It depends on a whole number of factors from once the investigations is conducted by the arresting officer or the investigating officer, when they contact the forensic laboratory for authorization to send in exhibits and the amount of time that would take. Once those exhibits are authorized, then they’re sent to the lab. So sometimes there’s a bit of an overlap there, and these times vary.
Then, once they come to the lab, we begin the processing of those analyses as soon as they arrive. That does vary, and to give an exact time would be difficult because all of those things vary.
Senator Pate: Is it possible to give a minimum and maximum?
Mr. Oldford: Right now, for priority cases, we could probably get responses back very quickly, and I would look for a priority case — Gillian?
Gillian Sayer, Toxicology Scientific Officer, Royal Canadian Mounted Police: Again, it’s very difficult to provide an exact number for a priority case. I would imagine in the order of a couple of weeks.
Mr. Oldford: When I reference priority cases, I’m talking about the more severe cases where an answer is needed immediately for whatever reason. Again, for the more routine cases, they would take longer because we would intentionally move them further in the queue, in time for when the courts would require them.
Again, if we are aware of a court date and for the most part the investigation is conducted and they’re waiting for the analysis of the exhibit and we know when the court date is, then we will manage the cases in the queue as well to ensure that the investigator gets what they need for that.
The second question is we’re going to have to, perhaps like the other public labs, rely upon the resource pool that is available within this country for the new hires. We have had discussions in terms of how we reach out to academia, other universities and private industry folks with some background or experience in the field to bring in to do the rest of the training.
Senator Pate: Thank you. That addresses the resources of the people. What about the fiscal resources in terms of finances if there is no increase in budget? How would you achieve that?
Mr. Oldford: Again, it’s my understanding that in the February 2018 budget money was allocated for forensic labs within the RCMP. So we would be relying upon that funding.
Senator Batters: Thanks very much for being here today. Since July 2008, police have been given the authority to demand a suspected drug-impaired driver to submit to a Standardized Field Sobriety Test — that’s a drug-influence evaluation by a drug recognition evaluator, for the benefit of our viewers today — to provide a sample of blood, urine or oral fluid to test for the presence of impairing substances.
Could you provide us some specific numbers today, or could you get those numbers to us, of how many blood or urine tests were requested by RCMP officers in 2017 and so far in 2018 related to marijuana?
I’m also wondering what the average cost is for a blood test versus for a urine test for marijuana and other drugs.
Mr. Oldford: For those numbers, I would need to do a little more research and look into our data and provide those answers later.
Senator Batters: Great. Also with the cost, would you need to get back to us on that as well?
Mr. Oldford: Yes.
Senator Batters: Thank you very much.
Mr. Oldford: Again, for answers to both those questions, I would have to refer to the way the data has been kept in terms of how long it would take to reach in to get that.
Senator Batters: Of course, yes. That would be very helpful. Thank you.
I also appreciate you giving us the information today, which I found kind of alarming, the fact that the government knew for two-and-a-half years that they were going to bring this legislation forward, but we’re hearing yet again that something else is just not ready. We have another situation where your laboratory capacity is already at peak and needs to be significantly expanded, as you illustrated today. Thanks very much for giving that important information to us.
Senator McIntyre: Thank you, Mr. Oldford, for your presentation. You referred to toxicology services, including the interpretation of analytical results in relation to legislated per se limits. On that issue, there are two important considerations; one is detection, and the other is enforcement tools.
On the issue of detection, obviously, linking THC to impairment is required to support the establishment of a scientifically supported per se limit. In addition, accurate and reliable roadside testing tools are required. Is what I have just said an accurate reflection?
Mr. Oldford: If I understood correctly, sir, in terms of the tools currently available to detect impaired driving?
Senator McIntyre: Yes.
Mr. Oldford: I think the investigators would have a whole range of tools at their disposal, which they would have had previously.
Senator McIntyre: Yes, but it’s important to have scientifically established per se limits.
Mr. Oldford: Yes. If it’s a question around the per se, I think I would refer to the report prepared by the Drugs and Driving Committee on the per se limit because it’s kind of outside our purview from what we do.
Senator McIntyre: If you have the tools, obviously you’ll be able to do the job?
Mr. Oldford: If we have the tools. If there is a per se limit, we will be able, with the instruments and the robots we have, to determine the concentration of that particular drug in the blood.
Senator McIntyre: How reliable is blood concentration as an indicator of impairment for drugs?
Mr. Oldford: Maybe I’ll refer that question to my colleague.
Ms. Sayer: Your question is about the reliability of any drug concentration to predict impairment. That will depend on a number of factors. The role of a forensic toxicologist is to review the scientific literature around the drug in question and provide an opinion as to whether or not the concentration detected is likely to be impairing at all.
We can’t provide any information on a specific individual and how likely it is that that individual will be impaired. It is an inexact science. Per se limits are typically set from a policy and public health perspective for drugs. You cannot guarantee that at a particular per se limit everybody above the limit will be impaired, nor can you guarantee that everybody below the limit will not be impaired. So the science surrounding pinpointing a blood drug concentration for which everybody will be impaired is simply not there at this point as it is for alcohol.
Senator McIntyre: Obviously there will be a variation, depending on the type of drugs.
Ms. Sayer: Yes, absolutely.
Senator Gold: Given the likely increase in samples that will come to you, can you talk about concerns you may have with regard to the storing of such samples, especially if things get prioritized, as they must be? Is the infrastructure currently available for the storing of the samples pending processing and thereafter?
Mr. Oldford: The storage, from the laboratory perspective, wouldn’t be a significant concern. We do have storage capacity. If we did need more, then it’s the type of infrastructure that we could provide fairly quickly with regard to refrigeration or other types of machines that we would need and the space required for that.
Senator Gold: Thank you. I have a quick follow up. It is actually the prequel to the question. With regard to the collection of samples in urban areas, I imagine it’s not as great a challenge. But in the more remote areas, could you comment a bit on either your experience to date or what you imagine the challenges will be in both the collection and the transmission of samples to laboratories from remote areas?
Mr. Oldford: Perhaps I can make comments based on my own experience to highlight that there will be parts of the country where the collection of samples would be more challenging than others, based on the infrastructure that is currently available or that could be put in place. For the most part, those responsibilities and pressures would lie outside the laboratory perspective.
With respect to the delivery of the exhibits to the lab, we have no real concerns over that, for the most part, because we already receive a number of exhibits on a priority basis anyway. So it’s just a collection, I think, of the sample at the front end.
[Translation]
Senator Maltais: Mr. Oldford, you have done roadside tests, you have stopped cars and you have probably taken saliva samples. The courts have already handed down decisions on these tests and some of them have been recognized. However, have they ever been challenged?
[English]
Mr. Oldford: First of all, I would say that the tests that have been done, if you’re referring to the oral roadside screening devices, that falls outside the purview of the forensic lab as well. So we have not been involved in those studies. I do not believe that they have been used to the point where they have been tested in court yet. There is still a validation process. It’s my understanding that the work that has been done on those devices so far has been a pilot to speak to the functionality of them.
[Translation]
Senator Maltais: Individuals who were arrested for a drug offence and underwent testing did not challenge the results or go to the courts, if I understand correctly?
[English]
Mr. Oldford: I wouldn’t have that information. That would be outside the purview of the forensic lab. I couldn’t respond yes or no, but I do know a pilot project was conducted with regard to the oral fluid roadside screening devices. However, I can’t speak to all the details and how that pilot study played itself out and how it was structured.
[Translation]
Senator Maltais: It would still be important to know if the analyses that you do are accepted or challenged by the courts, right?
[English]
Mr. Oldford: The roadside screening devices would be separate from the forensic laboratory. We would only be doing analysis of the blood exhibits coming in as a result of the investigation, which would rely on those roadside screening devices. We are different.
The ability of those roadside screening devices to work well or not, sir, would speak to the number of exhibits potentially coming to the lab, but it wouldn’t have a direct impact on the way we do our work.
[Translation]
Senator Maltais: To conclude, I understand that no one has challenged or accepted the results.
[English]
Mr. Oldford: It’s my understanding that to date, none of these devices have been deemed by the courts or by the Criminal Code yet as an accepted device.
The Chair: It’s my pleasure to thank you both for your contributions this morning. I’m sure that your contribution will be helpful in our deliberation on this bill.
[Translation]
I am now very pleased to introduce Ms. Kathleen Fox, Chair of the Transportation Safety Board of Canada. She is accompanied by Mr. Jean Laporte, Chief Operating Officer.
[English]
I understand you have prepared a brief that we have circulated around the table. The floor is yours, Ms. Fox.
Kathleen Fox, Chair, Transportation Safety Board of Canada: I want to thank you for inviting the Transportation Safety Board of Canada today. This is our first time appearing before this committee, and therefore I would like to start with a brief overview of who we are, and what we do.
Our agency was created in 1990 by the Canadian Transportation Accident Investigation and Safety Board Act. Our mandate and our sole purpose is to advance transportation safety in the air, marine, rail and pipeline modes of transportation. We do that by conducting independent investigations, identifying safety deficiencies, causes and contributing factors, making recommendations and reporting publicly on our investigations and their findings. It’s important to note that we do not attribute blame or civil or criminal responsibility.
[Translation]
In other words, when something goes wrong, we investigate to find out not just what happened but why. And then we make public what we’ve learned, so that those best placed to take action — regulators and industry — can do so.
[English]
Given our mandate and the fact that we do not assign blame or responsibility, we were quite surprised to receive an invitation to appear before this committee in the context of its review of proposed amendments to the Criminal Code of Canada as described in Bill C-46. However, we were pleased to hear that members of the committee had taken note of our investigation report into the April 2015 in-flight breakup and crash of a small cargo aircraft in North Vancouver, B.C., in which we identified that alcohol impairment almost certainly played a role.
As you know, this investigation resulted in a safety recommendation calling upon the Department of Transport, in collaboration with the Canadian aviation industry and employee representatives, to develop and implement requirements for a comprehensive substance abuse program, including drug and alcohol testing, to reduce the impairment of persons while engaged in safety-sensitive functions. These requirements should consider and balance the need to incorporate human rights principles in the Canadian Human Rights Act, with the responsibility to protect public safety.
Why did we make this recommendation? The TSB has identified drug and alcohol use as a factor not only in this accident but also in a number of previous investigations. As well, several incidents involving pilots who reported for work while impaired have been covered prominently in the media. In a number of cases, it was an airport employee or a co-worker of an impaired pilot who ultimately served as the last line of defence and prevented the impaired pilot or pilots from operating an aircraft. And while effective in those cases, this defence is insufficient on the whole.
Existing laws, regulations, standards and guidance may be effective in mitigating some of the risks associated with substance use amongst pilots and other safety-sensitive functions but they rely heavily on self-policing. There continue to be occurrences in which impaired individuals are not identified or prevented from operating an aircraft, and the board therefore believed that more needed to be done to mitigate this risk and issued its recommendation.
[Translation]
We would be happy to answer any questions you may have about our mandate, our investigation process, or our recommendation on the need for a comprehensive substance abuse program in the aviation industry.
[English]
However, we will not comment on matters outside the scope of our mandate, such as the proposed legislative changes in Bill C-46 or any aspects of the criminal responsibility associated with the operation of a conveyance while impaired.
[Translation]
The Chair: Thank you, Ms. Fox.
We now give the floor to our deputy chair, Senator Boisvenu.
Senator Boisvenu: I’d like to welcome our guests and thank you for your presentation. In 2017, a Sun Wing pilot was arrested in the cockpit for having been found drunk. It could have been much more dramatic if he had flown the plane. Were you consulted when Bill C-46 was being drafted? Did the government consult you about the monitoring aspects or any other aspects?
Ms. Fox: No, we were not consulted by the government.
Senator Boisvenu: Yesterday we saw witnesses from the transportation sector in the sea, air, rail and trucking sectors. In their opinion, one of the drawbacks of this bill is that random testing will only apply to alcohol and not drugs. They believe that, in these sectors, they should have the right to do random testing of employees in high-risk positions, mainly those who operate trains, planes et cetera. Has your board ever made a similar recommendation in the past? Or do you think that this is a recommendation you would make as part of Bill C-46, namely that this sort of preliminary monitoring or random testing be allowed for employees with high-risk responsibilities to the public, such as the transportation of people?
Ms. Fox: One of the recommendations we made after the accident that took place in British Columbia was to create a comprehensive program to evaluate the presence of alcohol and drugs. We didn’t specify what type of testing would be done, random or other types. We do know that to be effective, and to avoid situations where people’s job skills are affected by drugs or alcohol, you need a comprehensive program that includes education, supervision with some form of testing or other, and support programs for people who suffer from specific conditions.
Senator Boisvenu: These means could perhaps include random testing.
Ms. Fox: Yes, random testing could be part of it, but we didn’t stop there.
Senator Dupuis: Hello, Ms. Fox and Mr. Laporte. Thank you for being with us today. I just want to make sure I understand your presentation this morning. You were saying that you were responsible for air, sea, rail and pipeline safety.
Ms. Fox: That is correct.
Senator Dupuis: In terms of safety, you’re recommending that the Department of Transport, in co-operation with the aviation industry and Canadian employee representatives, establish measures, which you have explained. Does this recommendation only apply to the aviation industry?
Ms. Fox: When our board makes a recommendation, it has to be supported by evidence. In this case, our recommendation came after an airplane accident occurred and an investigation was conducted. Therefore, the recommendation was for aviation. However, when we do make a recommendation, the department has 90 days to respond. When it responded, it recognized that such challenges exist for other means of transportation as well. It therefore intends to examine rail, sea and aviation transportation in general. It intends to review its policy to determine how to deal with this challenge for other means of transportation.
Senator Dupuis: If I understand correctly, the government is about to review the issue for the entire sector that you cover?
Ms. Fox: Yes.
Senator Dupuis: Is that the reason why at the end of your presentation you said that you were not here to make comments on Bill C-46, because that bill is not the bill which is relevant in dealing with the issue that you have raised?
Ms. Fox: It is partly for that reason. But it’s also because our mandate is not to assign blame or to determine civil or criminal responsibility. Making comments about the Criminal Code would be outside of our mandate.
[English]
Senator McIntyre: Thank you, Ms. Fox, for your fine presentation. As you have indicated, what is needed is a comprehensive substance abuse program which would include mandatory testing, so my question is this: Will that program include complementary initiatives such as education, peer support, employee assistance and rehab?
Ms. Fox: Our recommendation to Transport Canada is to work with industry and employee representatives to develop the requirements for a comprehensive program that would include all of the elements you mentioned. The type of circumstances that we have encountered in our investigations is, more frequently, where we have long-term substance abuse issues as opposed to someone having a few drinks or taking something else. We felt that because there are comprehensive medical standards and protocols for people not to use drugs or alcohol when operating an airplane or vessel, it needed to be broad, and it’s up to Transport Canada as a regulator to develop the program. We will then assess whether that addresses the underlying safety deficiency.
Senator McIntyre: Will the program also consider and balance the need to incorporate human rights principles with public safety?
Ms. Fox: Again, we made that as part of the recommendation, but we don’t enforce our own recommendations. We make a recommendation to the government, in this case Transport Canada, the Minister of Transport. The minister responds with how they are going to address this. They have indicated that they are looking at it from a policy perspective, about what can be done to have a comprehensive program that would include testing and other things, like education and awareness. They have already indicated they are going to commence an awareness campaign in 2018, I believe in the fall, but it’s really up to them how they work with industry and employee representatives. We wanted to make sure that our recommendation included that need to balance privacy issues with the need for public safety.
Senator McIntyre: It’s all part of your recommendation, but it’s up to the federal government to put this into action.
Ms. Fox: That is correct.
Senator Pate: Thank you both for your testimony. In addition to the recommendation you mentioned in your opening comments following the April 2015 crash and breakup, are there any other comments or recommendations you would make regarding how to reduce incidences involving impairment in a proactive way rather than retroactively? I’m curious whether you have stats on the number of drug or alcohol impairment-related occurrences, and whether this is a significant problem in marine, rail and air transportation.
Ms. Fox: Since we were created in 1990 — I’ll go to the statistics first, senator — we have investigated 24 occurrences that could be accidents or incidents where we have cited alcohol or drugs as a finding. To be clear, that doesn’t necessarily mean it was causal to the accident or the incident, but it played some role. Maybe as a risk.
Also that does not only involve alcohol and drugs such as cannabis or opioids. It can also include impairment caused by over-the-counter prescription drugs. Overall, it’s a fairly rare occurrence for us to find in our investigations. That being said, it does exist out there, and that’s why we felt following three investigations that we did between 2009 and 2015, including the occurrence in North Vancouver, that it was time for the board to make a recommendation with respect to a comprehensive substance abuse program in aviation that would include testing, but we are not prescriptive about what type of testing, whether it should be screening that is done prior to issuing a medical certificate, preemployment testing or random testing. We do know that some companies already do for-cause testing or post-incident testing.
Senator Pate: Any other comments on how to deal with this proactively? I think you have addressed a bit of that, but do you have any other comments?
Ms. Fox: Not really. We had issued a previous concern following the sinking of the Queen of the North in B.C. because we identified cannabis use on that particular vessel, so at that time the board issued a concern specific to cannabis use on the Queen of the North. Since then, our only recommendation has been this one, which is a comprehensive substance abuse program in aviation for anybody, not just pilots, but anybody who is considered to be operating in a safety-sensitive function.
[Translation]
Senator Pratte: I would like to have a clarification. When you talk about 24 investigations where alcohol or drugs were determined to be possible factors, was this for all modes of transportation?
Ms. Fox: Yes. In fact, there were 15 for aviation transport, six for marine transport and three for rail transport.
Senator Pratte: A certain number of airline companies already have policies in place. Especially when carrying out tests after an incident or when somebody is hired. Are you aware of measures already in place within the aviation industry?
Ms. Fox: No, we do not have a bigger picture of the situation. If we believe that drugs or alcohol were a factor in an incident, we analyze what the transporter has in place to prevent this risk.
Senator Pratte: Based on the accident investigations that you conducted, do you have any indication as to whether the companies involved in the accidents had test programs that were insufficient or non-existent?
Ms. Fox: I can answer in two ways. First, many airline and rail companies must have a safety management system to manage the risks within their operations. The use of drugs or alcohol certainly represents a risk. Consequently, they must ensure they have programs. Depending on the size of the operation, some programs are very well developed, while others are less developed. In the accident that I mentioned earlier, the captain had a blood alcohol level of 0.24 per cent after the accident. In the report, it is mentioned that this employee was thought to have had an alcohol abuse problem. The company evaluated this pilot while in flight and concluded that the pilot respected the performance standards. The company claimed that they would follow the situation closely. It was after this that the accident occurred. We had observed that there were no means of reporting this incident to the company’s senior managers. In that particular case, communication within the company did not work well.
Senator Pratte: In the United States, they have random testing. Have these programs been tested? If so, do they work better than those that exist in Canada?
Ms. Fox: Following this accident, we analyzed programs that exist in the United States, the United Kingdom and in Australia. The United States and Australia have programs for random testing. However, it is difficult to determine their efficiency. They do not have statistics that would show the number of times they caught someone before they took control of an airplane or before working in a critical safety-sensitive position. We are not in a position to say whether it is effective, but they have very few accidents. They did conduct comparisons before and after these programs came into force. They observed a decrease in accidents with drug or alcohol as factors.
Senator Pratte: Thank you very much.
[English]
Senator Gold: I’m happy to see you again, albeit wearing a different hat. Thank you for all the good work you do.
I appreciate very much the respect you are showing for your mandate and the limits to what you are testifying, and we have limits as well. We’ve had both testimony and questions about workplace safety generally but also with regard to transportation.
Our job is to study this bill and, where appropriate, amend it, but I understand you are not proposing any amendments to this. The other thing we can do as a Senate committee is attach observations to our report. Would you recommend that we attach an observation with regard to the need for a comprehensive drug planning program in the transportation area?
Ms. Fox: Certainly, any such support would be welcome in the context of proactive safety management of risks associated with operations, but as I said, we stay away from the criminal side. Our job is to find out what happened, why it happened and what needs to be done to prevent it from happening again.
The desire of the board is to reduce the risk of impaired individuals engaging in safety-critical functions. Our recommendation was specific to air, but that applies generally across the modes for which we are responsible to conduct investigations.
Senator Gold: Thank you.
[Translation]
Senator Maltais: Welcome to you both. In Canada there are many small airline companies with planes that have four six, 10 or 12 seats. In just a few days, the fishing season will begin. This represents a large clientele for these small carriers. They are present during the fishing and the hunting seasons. Are there checks for these companies? When I take a flight with my family, is somebody able to guarantee that the pilot is not under the influence of cannabis, alcohol or other drugs? When I write my $2,500 check, is there a guarantee I will be safe?
Ms. Fox: It is difficult to get that guarantee. I have been a pilot for a number of years. Based on the civil aviation rules in Canada, a pilot cannot under any circumstance consume alcohol eight hours prior to taking control of an airplane. Transport Canada may even increase this limit to 12 hours. Canadian law prohibits a pilot from taking control of an airplane while under the influence of any substance that can affect their skills.
Now, as I mentioned earlier, that depends on the integrity of the pilot in following the rules. Outfitters are operators who must respect Canadian regulations from Transport Canada. The department is not always there to supervise them. It is operators who must ensure that pilots respect the law. Transport Canada, as the regulatory body, does inspections and checks, but it is not there every moment of every day. It has to rely on airlines to ensure that regulations are followed.
Senator Maltais: Have there been cases involving small airlines where planes have crashed and people have died because the pilot was under the influence of cannabis?
Ms. Fox: Yes, we have done investigations into this type of accident, including one in the North. It involved an airline in Yellowknife where the pilot took the controls of a plane when he was under the influence of cannabis. The pilot died and there were other deaths.
Senator Maltais: Thank you very much.
[English]
The Chair: Ms. Fox and Mr. Laporte, thank you both for your contributions this morning. It was helpful as you assisted us in providing a broader picture of the reality of your industry and, of course, your roles towards the responsibility of the Canadian government in relation to maintaining safety.
We will welcome the next panel to the table. It’s my pleasure to introduce to you Mr. Gary G. Kay, President, Associate Professor of Neurology from Georgetown University, on behalf of Cognitive Research Corporation. Good morning, Mr. Kay. And from the Altasciences Clinical Research, Mr. Graham Wood, Chief Research and Development Officer.
Welcome gentlemen. The floor is yours. You know the procedure. Each one of you is invited to make a presentation, and after that, of course, we will have an exchange of questions around the table.
Gary G. Kay, President, Associate Professor of Neurology, Georgetown University School of Medicine, Cognitive Research Corporation: Thank you, chairman, and thank you to the committee for giving me the opportunity to present to you.
I would consider myself to be a transportation psychologist. I have been working in modes of transportation, including aviation, which you were just discussing, for the last 30 years, involved in the program of returning pilots back to flight status after treatment for alcohol or drug abuse. We have an extensive program in the U.S. for doing that.
My background is that I am the president of Cognitive Research Corporation. That’s a CRO, a contract research organization. These are companies that actually support the conduct, the planning and the data transmission on pharmaceutical, nutraceutical or device trials submitted to the regulatory agencies that are responsible for approving and labelling of substances; also I am an associate professor of neurology at Georgetown, where I was founder of the neuropsychology division.
I have been working in drug-impaired driving for more than 20 years, and I had a lot to do with the original evaluation of a drug, an antihistamine that is non-sedating, and finding out that common over-the-counter drugs that people don’t even have a feeling of impairment with could actually cause significant impairment equal to 0.07 blood alcohol — a drug you can commonly buy at the pharmacy or at the grocery store right now that will cause marked impairment of driving.
I am consultant to the National Highway Traffic Safety Administration, consultant as well to the Federal Aviation Administration and also the Federal Motor Carrier Safety Administration. As well, I have consulted to the Department of Justice and the U.S. Food and Drug Administration.
In terms of the comments I prepared ahead of time, I don’t have an easy button, unfortunately, and I don’t have a quick story to tell effectively, and I don’t have good news perhaps, and I’m standing between you and lunch, all of which doesn’t sound very good. The point is that our current state of knowledge regarding particularly the impact of cannabis as one drug that you’re dealing with in Bill C-46 is really insufficient for establishing an allowed threshold. I know that’s not exactly what your role is threshold-wise. Actually very important to me is informing the public, the potential user of what will now be a recreational substance, and informing law enforcement as to the relationship between the amount of exposure, the magnitude of the impairment, the nature and severity of the impairment caused, and duration so that somebody can modify their behaviour and take those things into consideration.
I have listed some of the established facts about cannabis, some of which are still controversial, some of which there are differences in opinion on, and basically we know that cannabis does increase the risk of crashes. We know that when combined with alcohol that magnitude is even greater. We know that tolerance for cannabis does develop in different ways across different people, and we know, sadly, that the active ingredient, Delta-9 THC, is actually not a very good predictor of impairment, which would have been great had we the same kind of situation as with alcohol, but we do not.
We don’t currently have a simple, accurate test for behavioural impairment. If we are going to be collecting a sample, we need to find ways to find out what would actually tell us about acute use as opposed to the fact that the drug is simply present, and we need perhaps to develop other methods for actually measuring the impairment as opposed to the presence of drugs.
And so solutions, number one, if there is anything that Bill C-46 can do which aims in the direction of public information, helping people understand the impact that cannabis can have on their driving, that will be key, and developing anything that Bill C-46 can do to harmonize the way in which the samples are evaluated and collected and the timing of those collections is so important.
But my reason for wanting to come to speak to you was the key thing that I think is the utilization of a standardized, validated study method to develop. We actually have methods for evaluating the impact of drugs on driving. I brought and made available two documents; one is a document which is standardized protocol developed for the National Highway Traffic Safety Administration that looks at drug-impaired driving across substances, including both medication and illicit drugs. This is a standardized protocol, and that protocol was accepted and has been incorporated into the U.S. Food and Drug Administration’s guidance — just published in 2018 — for evaluating the impact of drugs on driving. I can describe, if you’re interested, more aspects of what is in that protocol and how we approach any drug, including cannabis.
We are currently involved in conducting a cannabis study under that protocol demonstrating the validity not just with cannabis but also with a common anxiety drug, alprazolam. We can provide more information about that.
In terms of a bottom line for my introductory comment, I’m recommending to the committee that you support research that applies scientific rigour and the kind of methodology that is common to studies that are required and submitted to regulatory agencies like your Health Canada for evaluating drug safety and efficacy. We need to study driving under the influence of cannabis using the same methodology and rigour applied to the study of pharmaceuticals.
The U.S. National Highway Traffic Safety Administration has developed a protocol for use with medications and illicit drugs; as I said, that protocol has been incorporated into U.S. FDA guidance.
Finally, in my view we are talking about drugs. Regulations have been developed to address the safety of drugs. What if these regulations were to be applied to non-pharmaceutical cannabis as cannabis becomes available as a non-pharmaceutical product? Clearly, for these products current information is insufficient for regulatory authority to approve. You couldn’t make approval or a label. The label would indicate “do not drive” and for how long. With this amount of cannabis, when it is safe for you to resume driving? When would you not be in violation of the law? And when would it be safe for you to resume driving?
Without this information I feel that the public, law enforcement and you as legislators are being ill-informed, and I suggest that cannabis products require testing and labelling in the same way that we treat pharmaceuticals.
Graham Wood, Chief Research and Development Officer, Altasciences Clinical Research: Thank you very much for inviting us to speak today and also thank you for taking the time to really carefully examine this important issue of how to address driving while impaired, because obviously it is a big issue regardless of legalization of marijuana. We feel it is a big issue that definitely needs to be addressed. And the important thing we want to focus on today is providing the data to make a good, informed decision on what will be the cut-off level and what will be the best way to detect when someone is impaired when operating a vehicle, flying an airplane or piloting a boat.
I will give background on what we do at Altasciences Clinical Research. I will give a summary of our proposal. I believe you should have the full proposal as well, and I will briefly discuss what the data we’re proposing to collect will do and what it will not do. Obviously there are limitations. It will not answer everything. As Dr. Kay said, there is definitely no easy button for this.
I will give a little background on Altasciences Clinical Research. We are a clinical pharmacology-focused contract research organization. The pharmaceutical companies come to us when they want to get a product on the market, and we do usually the first testing in humans. The first time a drug is ever given to humans, we start with it and follow it through with the drug companies, conducting the testing for them.
A huge part of that is understanding the blood levels of the drug, and how those blood levels affect the benefit of the drug as well as the adverse effects. Obviously, with cannabis and other drugs, the adverse effects we are talking about today are how they affect cognition and the ability to drive.
We are actually one of the world leaders in doing driving simulation studies. We use simulators invented by Dr. Kay, and we use a cognitive testing platform that captures the same platform used by the pilots in North America to test their cognition. We use those on the participants in whom we test the drugs so that we get a really good picture of how they are driving on the simulator, plus their cognitive tests on the hand-held devices.
We have also been doing research into cannabinoids and cannabis for over 10 years now. Across our company we have run 30 different studies with cannabinoids or cannabis. Our clinical facility in Montreal actually has run 16 of these studies and dosed well over 1,000 different participants with cannabis. We actually have the facilities to test. We have specially designed smoking rooms so that people can smoke it and it clears the air quickly so our staff don’t get affected.
We have the bio-analytical method. There were discussions earlier about roadside detection and sending samples off to the toxicology labs. We not only have the methods to look at THC, which is obviously very important, but we have methods for about four other cannabinoids as well as the terpenes, so we can look at a good profile of all the different psychoactive ingredients within cannabis. Focusing solely on THC is, I think, a bit of a problem because that’s not the only ingredient that matters within cannabis.
Now, a brief summary of our plan. The clinical program we have designed to measure the impairing effects of cannabis is really set up, as Dr. Kay said, to suit the pharmaceutical industry. This technique has been used for a good number of drugs. A good example is medication for insomnia. When you take it at 8 p.m. and you wake up in the morning and drive to work, will you still be impaired? These are the tools that we propose to use to look at cannabis.
Among the things we will be able to look at, one of the clear ones is the blood levels of THC, cannabidiol and some of the other cannabinoids and their metabolites, which are also very important. We will look at what blood levels cause impairments.
We will also be able to look at the interaction of THC plus the other compounds, such as the interaction with alcohol. Good research is showing it is additive, so it does make the impairment worse. There is some research showing it is actually synergistic so that instead of one plus one equals two, it’s actually three or four. It compounds the impairment, so it’s really important to understand that.
The other thing that has been brought up today is the tolerance. If you are a chronic user of cannabis and you take a certain dose, and then someone else who has never used cannabis before takes exactly the same dose, what is the difference in the cognitive effects? There is good research showing there is definitely a difference. How much that affects driving, though, is not really clear.
The other things we want to look at are other components that are in it. Cannabidiol is one of the other chief components in cannabis. It counteracts some of the effects of THC. We need to look at that to understand. As I said before, it is not just the one component that matters, but all of them together and how they interact to produce that impairment.
The plan has two parts, each with three different clinical studies, so it’s six clinical studies in all. If you look at some of the literature that’s out there, the number of people exposed in each study has usually been 12 to 18. A lot of what we do when we do it for the pharmaceutical industry is usually 60 to 80 people who are exposed per study to give us a better data set to pull from.
Usually, for pharmaceuticals we actually only have to do one or two studies on them. Because cannabis has so many different components and is so complex, that’s why we feel the extra studies are needed to grasp all the different aspects of impaired driving for cannabis.
The Chair: Can you try to wrap up? My colleagues are anxious. I have a long list of questions.
Mr. Wood: That’s a perfect place to stop.
[Translation]
Senator Boisvenu: Thank you to both of you for your explanations, which we only wish could have been longer. I think that is what will be at the heart of the matter legally, that is to say the issue of the soundness of the evidence in court. You both arrive at almost the same conclusion, that the rate of THC cannot be the only element to consider to establish proof beyond a doubt, in court, that the person has committed a crime.
In Bill C-46, the level is set at 2 or 5 nanograms. In your opinion, if police use this number, do we not risk seeing, in the courts, many science-based challenges to prove that the person was not intoxicated, according to the values defined in Bill C-46?
[English]
Mr. Kay: I would say yes, you would be facing a great number of challenges. What we can say with 2 or 5 nanograms as a per se limit would be that with that concentration you could say that the person has consumed. You don’t know how impaired they are. We can definitely tell you that at those limits we don’t know how impaired they are. I think in the courts that would create quite a problem.
If you get up into 7 to 8 nanograms, then you would at least be able to say, with respect to some aspects of driving, you are comparable to a BAC of 0.05 to 0.08, which we do know is relevant for crashes; the crash increase is there. But if you are down at 0.05 to 0.02, I couldn’t tell you that, when they are at that level, whether their driving would be impaired. It varies so much across individuals, as you heard, related to issues of tolerance and such.
I think the legal challenges will be considerable. As you heard yesterday from the DREs, that would be a critical part of what you would need to gain any kind of conviction, I would assume.
[Translation]
Senator Boisvenu: Your proposals are largely based on studies or analyses to be done in the medium term. How long will it take to have enough scientific knowledge to be able to set a legally unassailable THC level? What is the timeline, a year, two years of research?
[English]
Mr. Wood: The studies that we are proposing we could have completed within 18 months. However, back to just having a THC level by itself that can’t be contested, we don’t know if we are ever going to be there. We might have to start looking at the other components of cannabis, like cannabidiol plus the metabolites, but even there, as with the tolerance issue, we can determine exactly for a given person what TLC level will cause impairment for them, but because of tolerance it will not be the same for every person. It will be very hard to say this one level.
Back to your first question, the 2 nanograms is definitely very low. There have been papers out there with chronic users who, two to three weeks after last use, will be above 2 nanograms. It will be hard to use that to say the person was impaired because they were above 2 nanograms. The studies we are proposing are to get a much better idea of what the level should be.
[Translation]
Senator Boisvenu: In the meantime, marijuana will be legalized this fall. We want to avoid this type of legal challenge because we will not win. We want to take proceedings out of the courts. If we fill the courts with legal challenges, we will not be any further ahead.
What attitude, what approach should we take? What instructions shall we give to police officers to tell them how to manage impairment, so they can go to court without running the risking of the evidence been challenged, if the notion of two or five nanograms can be contested? What approach should we then take?
[English]
Mr. Kay: The best approach to answering your question empirically would be to say we have three types of rules currently in the U.S.: We have zero tolerance — basically any level; we have the two to five, and you would find Nevada at the lower; you have the five in places like Washington; and in Colorado you have an odd one where it’s five but with relative impairment.
I think looking at what has been the experience of the courts in those jurisdictions shouldn’t be that hard to find out. I think that would probably be your best information to go by in terms of the least way to negatively impact your court system come this fall. I don’t have the answer, but I think there is a solution to finding your answer.
[Translation]
Senator Dupuis: Mr. Kay, if I understood your last answer correctly, there is a whole range, from zero tolerance to 2 to 5 nanograms to 5 nanograms and impairment. It has been the case in a few states in the United States for a few years, if I understand correctly.
My question for both of you is the following: Mr. Wood, you spoke to us about around 30 studies, 16 of which were done in Laval, in Quebec. How can you compare the results you obtained from drivers who had used cannabis rather than alcohol or other drugs, like opioids? What can you tell us about the results of studies that you have already conducted? I understand that you are proposing a research plan to us, but you say that you have already done 30 studies, including 16 in Quebec. What do you already know from the results obtained during your studies to date?
[English]
Mr. Wood: Only a small number of the studies that have been carried out so far have focused on the cognitive effects. So a lot of the research we do is focused on the safety aspect as well as giving the information about how quickly you absorb the drug, how quickly you eliminate it, so you know how to do the treatments.
In terms of the studies we have done that have looked at cognition, it’s only been a small number, so we don’t currently have sufficient data to really to give the answer, which is why we would like to go beyond that and be able to do the studies using those driving simulators to collect the data that we think is needed.
[Translation]
Senator Dupuis: If I understand, you’re telling us that the scientific data is not there. What I’m trying to understand is how other organizations have been able to give themselves very specific per se limits, that is, either zero tolerance, or 2 to 5 nanograms, or 5 nanograms to incapacitation. How do you think they were able to make those decisions?
[English]
Mr. Kay: I don’t know the history of how they came to the 5-nanogram threshold. I know that’s used by many of my colleagues in their research. I think if you look at what occurs pharmacologically, if you smoke cannabis, you get rapid levels within the first 10 minutes, as you have heard no doubt, and then over the course of an hour, that drops by 90 per cent to a lower level, so people are within that 1 to 10. That would help us narrow down our answer as well; people know that by the time that they get to the point of testing and collecting the sample they are in the 1 to 10 range.
The other thing is in terms of a reliable detectable level, I think people were limited at one point to about 1. Now you’re much lower than that. Part of it was based on laboratory science. Another part was based on what the samples showed by the time people actually collected those samples.
The sampling is so critically important as to when you obtain that sample.
Mr. Wood: I’m not sure what scientific evidence they base that on. There are good publications, one using a driving simulator at the University of Iowa, probably the most realistic simulator there is. In their publication, they said from 8.5 nanograms per millilitre is equal to 0.50 BAC, and I think 12 nanograms is equal to 0.08. That is probably one of the best publications because they’re using a simulator and actually collecting blood. A lot of others, they have given someone a dose of cannabis, either smoked it or ingested it, and then just assumed that with the dose everyone is going to have the same blood levels. What we have done with smoked cannabis, the difference is huge. We have people who can’t inhale at all and don’t really get any exposure. We have other people who have a few puffs and they get huge exposure. So it has been very hard to review the literature and really compare it.
The best study there is suggests it is quite a bit higher.
Mr. Kay: Even that best study looked at 18 people — very small — and what they found was an effect on weaving but not an effect on leaving the lane, so lane excursions were not affected. They found an effect on speed, but the effect was not that they were going faster; they were driving slower. One of their interpretations was that people with cannabis had an awareness of being high and were trying to compensate for that by slowing down. They knew their reaction times weren’t as rapid, so they slowed down their driving.
Senator McIntyre: Thank you both for enlightening us on the cut-off limits and on the issue of cognitive testing to detect impairment on the road.
I have a very simple question. Currently, as we speak, between DREs, drug recognition experts, blood tests and drug detection devices, which system of testing is the most efficient to measure road impairment?
Mr. Kay: Well, I would say that in terms of those three, I think the DREs probably have some of the best data for showing impairment related to the drug. Some of their publications are rather impressive with respect to demonstrating sensitivity and specificity of what they are able to do.
You need these things in concert. Presently, as Dr. Wood pointed out, we need some better measures when looking at the samples we collected to actually make an assessment that the person was impaired. So, with regard to relating the level that we can find to impairment and especially acute impairment, we don’t have that at this point, but I think it’s possible we will get there.
I think what we know right now is that the person was exposed to the drug, but we can’t tell you when, and we can’t tell you how much. But those things together, I think, are really important. I think that’s the combination. In the future, what we would love to see, and California is working on this, funded by the State of California, is a tablet-based neurocognitive test. Cannabis has big effects on the brain and therefore on thinking. Is there a fairly simple test that a law officer could have with them that they could conduct and use as a test that would screen for impairment right now in an ability related to driving? That would be helpful.
Senator McIntyre: Mr. Wood?
Mr. Wood: I concur. I think the DREs are currently definitely the best method. I think it’s important to have the blood levels as well. As we heard earlier, the totality of evidence. You have the blood levels. You have the response to DRE. I think roadside cognitive testing is also definitely a very good way as well. Something that can be done quickly right there and really get some measure of impairment, and then hopefully that’s enough evidence that it can’t be challenged.
Senator Gold: This is really fascinating. Thank you for being here. I just want to make sure I understand a few things, so a few points of clarification, then a question.
As I understand it, in Bill C-46 the per se tests are not assuming impairment. I mean it’s a separate category of offences. Since the 1920s, it has been an offence to drive impaired by drugs. We test it and prove it in certain ways. This is an additional category of offence, so I think that’s important to keep in mind.
And the other point is that, regrettably, cannabis use in driving is a current and devastating problem in Canada and elsewhere. The statistics are hard to come by for reasons we discussed in the committee, but it’s a real problem on our roads and has been for a while. It’s not going to get better. It might get worse with legalization — we hope not, with education — but it’s a real problem today.
I want to understand the science a little bit better. You mentioned, and we’ve heard before, that when you smoke cannabis — and maybe the times are different if you ingest it differently — it’s in the blood quickly but moves through the fatty tissue quickly and then drops off dramatically.
When you talked earlier about the 2 or the 5 nanograms being too low for real impairment, as you understand it, that is in the moment. But what about two hours after the fact? From a scientific point of view, if two hours after a driving incident, one is found with 5 nanograms in their blood, what does that tell you about potential recency of consumption? What does it tell you about what it might have been like two hours before?
Mr. Wood: The problem is that it tells you almost nothing because there is huge person-to-person variability. It depends on how you took it. If you smoke it, you’ll go up to 100 nanograms within five minutes, and then you’ll be back down below 10 nanograms 30 or 40 minutes later.
Senator Gold: But if you’re at 5 nanograms two hours later, what might that tell you?
Mr. Wood: If you ingested it, your peak can be up to four or five hours later. If I test you and it has been two hours, and it’s at 5, it could be because it’s actually gone up, because you’re still absorbing it from your GI tract. That’s versus someone who smoked it, where it’s definitely purely on the way down. It’s very different.
With alcohol, one of the beauties is that it’s very easy to calculate. It is very reliable; it’s not perfect, but it’s reliable. For THC, it’s almost impossible to determine exactly when it was consumed and how much was consumed. It’s very difficult because it varies so much between people, between modes of administration, et cetera.
People are also looking at the metabolites. The longer it has been in your system, the higher the metabolites. If I just smoked, what will mostly be in my system is THC. An hour after smoking, the other metabolites start coming up. People are trying to look at maybe the ratio of the act of the parents, the metabolites, will give better results. It’s an area of active research, but it is a problem that has not been solved.
Senator Gold: May I follow up with a question?
The Chair: Very quickly.
Senator Gold: Moving from blood to a saliva test being piloted here, but which I gather is used in industry, we heard testimony to the effect that certain threshold levels in saliva do tell us something about recency of consumption — that there is a window within which one can safely say that if you hit, say, 15 nanograms or whatever the right number is, in saliva, that tells one that there has been ingestion within a window of time in the relatively recent past. Can you comment on that? Is that accurate from a scientific point of view?
Mr. Wood: If it’s sufficiently high enough, then you can probably come to that conclusion. Down in the 5 nanogram range, no. That’s like —
Senator Gold: But at 25, for example?
Mr. Wood: It would be very difficult to have 25 and not have consumed recently, unless you ate it. Like I said, when you eat it, the absorption is really slow, so you could actually be on your way up. They pull you over, you’re not impaired, they test you an hour later and you have it at 25. Then you’re actually impaired. It could keep going up after four hours.
Around the 20 to 25 nanogram range is a very good indication that it was recent. Is it definitive? No.
Senator Gold: Thank you.
Senator Batters: I keep wondering at this committee on these bills if I am ever going to have a day when I’m not completely surprised by something I hear from the witnesses. I have just heard something else: the fact that with edibles, the impairment rate would rise over time — lots of problems here.
I can’t remember which of you did, but one of you responded to Senator Boisvenu — it was Mr. Kay, I believe — that the limit of 2 to 5 nanograms per millilitre of blood will be difficult to prosecute in court. I was wondering if you could tell us more about that and the science behind that particular circumstance.
Mr. Kay: It’s to the extent that the defence would challenge the meaning of the presence of 2 to 5 nanograms, saying that specifically by itself does not indicate impairment. In fact, they could say, “My client smoked cannabis a month ago.” There is data from the National Institute on Drug Abuse in the U.S. where they studied chronic users, and they kept them there for a month. They were still finding pretty high levels of THC when they were testing these folks.
That could be a challenge. I think the only way to survive that challenge is to have great findings from the DRE — well documented — and the observations of the law enforcement officer who did the arrest about what they observed in the person’s driving. Without that, I think you would have a hard time.
Again, looking at the experience of the courts, the prior question is really important. I can think of a document that I would be happy to share with the committee that was across the United States looking at how they set these limits and perhaps some of the courts’ experiences. I’d be happy to share that with the committee as well.
Senator Batters: That would be very helpful.
The Chair: You could send that document to the clerk of the committee, Mr. Kay. Thank you.
Senator Batters: I would appreciate that. Thank you very much for coming. It’s been very helpful.
Senator Pratte: To follow up on Senator Gold’s question, my understanding of how it will work is that when a driver is stopped, he or she will first have to pass a saliva test at the roadside with a screening device. The threshold of this screening device will be 25 nanograms. Of course, that won’t be used in court at all, but it will be used as a threshold for a further blood test if the driver doesn’t pass that first screening test.
You have just mentioned, Dr. Wood, that over 25 would indicate recent cannabis use. Would over 25 be a good indication of impairment?
Mr. Wood: Yes. I don’t think I’ve seen any research that had someone at 25 who wasn’t impaired.
Senator Pratte: I think it’s the government’s point of view that the combination of failing the first screening test — although not evidence at court — and then failing the test between 2 and 5 would be a good indication that the driver was impaired at the moment of driving.
Mr. Wood: Yes. If that 25 test is reliable, then it is an indication that it’s most likely very recent. Then I guess the backup is the blood test later.
The problem is that correlating that 25 with the blood test is very difficult, but now you have two pieces of evidence, one showing that it looks like it was recent and the other more definitive test showing you the exact blood levels. Then, with the observations of the police officer, it is fairly robust evidence.
Senator Pratte: For a little science lesson here, you mentioned a couple of times in your presentation that there is research on a possible alternative ratio, which would be a ratio of THC to metabolites. Would you please explain to us laypeople what metabolites are?
Mr. Wood: When you ingest cannabis, the active ingredient most people think about is THC. Then your liver actively breaks the THC down into 11-hydroxy, which is still an active component, and then further breaks it down into things that can be eliminated in urine or eliminated through your bile. It’s kind of the breakdown process of the drug THC, and your body gets rid of it through the metabolites.
Senator Pratte: How would that make it a more reliable ratio than a THC-blood ratio?
Mr. Wood: First, it will give you an idea of how recent it was, because obviously very recent is going to be almost all THC. As time goes on, you’ll get more metabolites. Also, as I said, some of the metabolites are active. So if you just focus on THC and not on other — which actually will get higher THC levels eventually. If you just focus on this but the metabolites are higher and it’s active, you still have — it gives a better totality of evidence.
Senator Pratte: Thank you very much.
The Chair: Senator Batters, you had a supplementary question on that very point, but quickly, of course.
Senator Batters: Yes, it’s very quick. Just with respect to the initial roadside screening, what we have been talking about here is an oral fluid screening. That will only detect presence and not any sort of level of impairment, correct? The oral fluid?
Mr. Wood: From what I have seen put out on the drug swipe as one of the things being tested, it will have a cut-off level that it will detect presence within the saliva. I have seen that the correlation of saliva to blood is not bad, but they definitely need to work on that. Does that mean definitely impairment? No.
Senator Batters: Thank you.
Senator Jaffer: Thank you very much to both of you for coming here. I have to admit to you that I was really looking forward to hearing from you both, and you haven’t disappointed me, except I think I’m more confused now.
I have been a criminal lawyer in the past. I have represented people who have been said to have been impaired. If I were still a lawyer, I would have a field day with this. You know this, but I’m just saying this to myself now. There is no certainty here, right?
I’m asking you a question but also thinking aloud. We are going to try to say somebody was impaired where at least with the roadside testing, the alcohol testing, there is a semblance of scientific — even those, as you know, have tremendous problems. At least there is a semblance of some kind of surety, right? You know all the issues around alcohol. In B.C. alcohol testing is not even taken seriously anymore.
We will have this bill, but what task are we putting on the police services? How are they going to put forward when a person is impaired?
Mr. Kay: I think you are putting such a burden, so much reliance upon your DREs. You have some of the best of those in B.C. I have worked with one of your DREs there.
I think you’re going to need tremendous numbers. I think their testimony — you were once a defence attorney. You would know that they are considered credible, and they have data to back themselves up. I think in the absence of other things we have been talking about, you will be highly dependent upon your DREs at this time point.
Senator Jaffer: My follow-up question is about uniformity. Yesterday we heard from the Toronto Transit Commission, and their cut-off level for workplace testing, if I understood them, was 10 nanograms. This departs from other companies where it’s lower. Then this bill talks about 2 nanograms and 5 milligrams per millilitre of blood set by regulation.
There is no uniformity as to what is impairment. That’s another challenge, right? I’m sure lawyers will bring it up in courts. What I’m trying to say is I think we know it’s 0.08 for alcohol. We can take that. Am I correct?
Mr. Kay: For alcohol, 0.08 —
Senator Jaffer: — is a given. When I look at this and study it, I don’t have a so-called given. Maybe I’m wrong and not reading it correctly. Maybe the two of you can correct me.
Mr. Kay: I can speak about alcohol because I’ve been very involved in that. Richard Compton, head of NHTSA, did a lot of the key research on establishing what our levels are. We came down in the U.S. from 0.10 or even higher to 0.08 now. I think NHTSA would love to see it go to 0.05 because legitimately, based on very strong evidence, you could show that’s where you start increasing crash risk, at that 0.05 mark. Some countries in Europe have gone to 0.05. I understand there is some sympathy for that point in Canada as well, thinking about 0.05, but that is based on solid evidence of where crash risk occurs.
Now, on an individual basis, there are people who could perform just fine at 0.05, but we take it based upon the idea that we can’t test every individual out there, but this is a level at which we can say crash risk is increased.
When I’m studying drugs for the Food and Drug Administration, some of the studies we have actually done with Altascience, studying various sleep medications and antidepressants, what the FDA wants to know from us is what percentage of people are actually performing worse than 0.05? It might be that 80 per cent were below, but what they really want to know what is the frequency with which people are over 0.05? That will be the basis for them with respect to the safety of this drug and with informing potential users of the medication and also prescribers about how long they should notify their patients to wait or whether they should or should not drive when taking this drug. Very important information.
Senator Jaffer: Then the added challenge is if somebody has taken other prescription drugs. Where is the impairment? That’s an added challenge to assess this, isn’t it? Am I correct?
Mr. Kay: You’re absolutely correct. Just briefly, what your Canadian public needs to know about the substance is what is the crash likelihood? Am I really at risk if I do this of having a crash? They need to know. What are the legal consequences if I do this? They need to know if they will feel impaired, because with a lot of the drugs I study, people don’t feel impaired; they think they are perfectly fine to drive. One of the last questions we ask before they get in the simulator is, “Do you feel safe to drive right now?” And often they will say, “Oh, yeah, I’m fine,” and they will crash seven minutes later. So that’s a big issue.
They also need to know how long after I use the drug before I can resume driving and I’m safe to drive. The next question is exactly what you said, Senator Jaffer, which is this question about what if I have taken other drugs? What will the impact be? What impact would other factors have? These are important, like my experience of taking the drug, my experience in driving. If I’m a new driver, there may be different effects. What about my age? There are differences with some drugs with respect to age, people’s weight and gender. Males and females metabolize drugs sometimes differently. Lastly, if I have other health problems, might that impact how cannabis is going to affect me?
This is what the Canadian public needs to know before they get in a car and drive after using the substance.
Senator Jaffer: Can you tell them?
Mr. Kay: No.
Senator Jaffer: Thank you.
Senator Pate: Thank you both for coming. My head is swimming a bit. I had a whole bunch of questions, but in the end, if you were in our seats, what recommendations would you be giving to the government with respect to this legislation?
Mr. Wood: We have heard from many different people that definitely more research needs to be done and evidence collected. Does that help with this particular legislation? It will eventually, once we have had time to collect the data. As of now, to say we can set a per se limit I think is very difficult. Like I say, it would be very easy to challenge it.
Once there are more data and more DREs and maybe roadside cognitive testing, it will become much easier to enforce it, but it will be difficult right now.
Senator Pate: That would be the same whether we start today or we start in six months or a year, correct?
Mr. Wood: There have been no large studies. The study we keep referring to was only 18 people who were, I believe, all chronic users. There have been no big studies to really look at this and to really understand.
We do have a routine. When new drugs are coming to the market that may affect it, we test and do these studies to make sure we can understand a lot of what Dr. Kay was talking about, such as how long before you drive? We do that for drugs, for pharmaceuticals. We can do that for here as well, but it will take time.
Are we going to end up that it’s very easy, as easy as alcohol? It’s probably going to be a tiered approach where there are different things that add to the evidence, but it is possible to definitely get more data to really help in that decision.
[Translation]
Senator Boisvenu: Let me pick up where Senator Pate left off. This kind of information strikes a chord with us because we are dealing with a bill which could go off the rails, legally speaking, and create victims. At the end of the day, our responsibility is to make sure that there are no further victims. Based on what you said in your statement, you can’t compare a blood THC limits and blood alcohol limits, because there is too much volatility in the factors which have to be taken into account.
This bill was designed for pot smokers and not for those who ingest cannabis, correct?
We have to adopt the safest approach, Mr. Kay. Regardless of the type of vehicle you drive, there should be zero tolerance as long as there is no scientific evidence to allow us to monitor and control those who smoke up or ingest cannabis. Shouldn’t that be the case?
[English]
Mr. Kay: Sadly, I think most of what you said I agree with. We are really ahead of the science.
Senator Pate, I would say that we do have a lot research that has been done. It didn’t happen overnight. We understood alcohol and the messaging for alcohol for people took years to develop. We are not there with all other drugs. The National Transportation Safety Board actually came forward and made recommendations, as we heard from your equivalent of NTSB here today, about the different modes. People need to be informed about other drugs. They need to know which drugs are safe, which are impairing. This is critical.
Bill C-46 doesn’t just deal with cannabis. It deals with drug-impaired driving. For drug-impaired driving, we are talking about even over-the-counter things which impair people. We need to put proper labelling.
When we had the NTSB meetings, which are also available from 2001, those recommendations basically said we need to give better labelling on products, whether over-the-counter or prescription products or, in this case, a recreational product. When you go into a High Times cannabis store in Toronto in a few months and buy your cannabis cigarette, do you know what you are getting? Do you know what the concentration is? Do you know when it is safe to resume driving? If you are a responsible citizen of Canada, will you know when it is safe to get back in your car and drive? I would say we don’t know.
Senator Gold: Without repeating, which I’m about to do, the point is that the per se offences are not surrogates for impairment; they are additional offences for impairment to send a strong message to Canadians that you are at risk if you smoke and drive.
From a public policy point of view, our concern, of course, as Senator Boisvenu said, is not to create victims but is the public health and safety of Canadians, especially those who are driving or who find themselves in an environment where somebody is driving having consumed cannabis.
People have been consuming cannabis and driving and wrongly believing they have been driving just fine for decades in this country. It is really a social problem. From a policy point of view, what is the best response? It is our responsibility as legislators to deal with this current problem.
You mentioned research. I couldn’t agree more. I’m a former academic. Bravo. Education regarding risks, absolutely. The science isn’t fully there yet, but we know from our Drugs and Driving Committee that cannabis use impairs cognitive ability relative to driving. Would it not be a responsible legislative response, at this point in time, faced with the carnage on our roads, to send a strong signal to Canadians, with per se tests and all of that, that it’s not safe to smoke or consume and drive? There will be challenges but, from a public policy point of view, I would like your opinion on that summary of how I see things.
Mr. Kay: Absolutely. Per se is basically prophylactic. People know that one of the risks is not just crashing. They may think, “I’m a great driver when I have smoked cannabis, but I don’t want the legal liability of getting caught.” If you set a low limit, a low 2 or 5 or even 1, then in fact you are saying to people, “I don’t care how impaired you are. We don’t want you driving and using cannabis, or you are going to have to wait a long time.” That is unfair to frequent users because, as you’ve heard, their levels are going to be at that level when they have not acutely been using the drug.
I would say that is a really good label, I was thinking about earlier today, for this cannabis product in the store that you just bought to just say, “Use Uber.” That would be fine. You don’t want them to drive.
Mr. Wood: I agree. I think having a per se rule or cut-off does make sense. If the cut-off has good science backing, it is great for the public. You can get a personal Breathalyzer. If you can get a personal THC sampler, to see when you’re below, that would be a great way to inform the public and would help.
Mr. Kay: Senator Boisvenu, I do think there is a legitimate basis for higher per se levels of 7 to 8 because that does relate to aspects of driving from driving studies that are worse than a 0.05, where you know there is a crash risk. If I had to go to court and defend that per se limit, I would say that’s a defensible per se limit.
Mr. Wood: I agree.
The Chair: Thank you, gentlemen. It was very helpful. I’m sure you have given each and every senator food for thought at this point in time. Thank you for accepting our invitation and for contributing to our sitting this morning.
(The committee adjourned.)