THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Wednesday, January 31, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other acts, met this day at 4:15 p.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
The Chair: Welcome honourable senators and members of the public who, thanks to the magic of cameras, are following the proceedings of the Standing Senate Committee on Legal and Constitutional Affairs this afternoon. The committee is beginning its consideration of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other acts.
Today, we will start our first day of hearings on the important Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and make consequential amendments to other Acts.
It is my privilege today to welcome the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney of Canada, and Mr. Bill Blair, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada and to the Minister of Health. Welcome to you, Mr. Blair. I know it’s your first appearance in the Senate, so we will be mindful of making sure that this experience will prove profitable to you.
Of course, we have other members of the team for the Minister of Justice.
I want to welcome François Daigle, who is the associate deputy minister, and Carole Morency, who is very familiar with this committee and is the director general of the Criminal Law Policy Section at the Department of Justice.
We also have Mr. Greg Yost, counsel in the same Criminal Law Policy Section of the department.
Welcome, minister. You are familiar with the procedures.
We invite you to make your opening statement. Afterwards, we will have a free exchange with my colleagues around the table. Go ahead, Minister.
Hon. Jody Wilson-Raybould, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, senator, and thank you to this honourable committee for having me back. It is a pleasure to be back to speak to our legislation, Bill C-46. As you mentioned, senator, I am pleased to be joined by my parliamentary secretary, Bill Blair, and, of course, our officials.
Bill C-46 speaks to our government’s commitment to keeping Canadians safe on our roads and highways. There are too many tragic stories resulting from impaired driving, which are entirely preventable. These stories speak of lives that have been lost, damaged and forever changed by the reckless actions of impaired drivers.
The bill proposes significant legislative changes to address both drug and alcohol-impaired driving. It represents one of the most comprehensive reforms in this area of law in almost 50 years.
I am proud to have been able to bring these proposed reforms forward, and I am hopeful you will be convinced not only of their importance but also of the pressing need of the passing of this legislation.
There are two main parts, as senators will note, of Bill C-46. With respect to drug-impaired driving, Part 1 of the bill proposes two major reforms. First, it would give police new tools to better detect driving under the influences of drugs by authorizing police to use approved oral fluid drug screeners. Second, it would create three new criminal offences of being over a prohibited blood drug concentration within two hours of driving.
The first offence would be a summary conviction offence for low levels of drugs alone on a precautionary public safety basis. The second offence would be a hybrid offence for drugs alone. The third offence would be a hybrid offence for drugs in combination with alcohol.
The draft regulations setting the proposed blood drug concentration limits have been recently published in Part I of the Canada Gazette. I will outline the proposed levels for THC, but the draft regulation addresses other drugs, including GHB, cocaine and methamphetamine.
The public comment period has recently closed, and I am in the process of considering the final approach.
For the summary conviction offence, the prohibited THC level would be at or over 2 nanograms per millilitre of blood. For the first hybrid offence, it would be at or over 5 nanograms. Finally, for the third hybrid offence, the prohibited level of THC would be 2.5 nanograms in combination with 50 milligrams of alcohol per 100 millilitres of blood.
The current scientific evidence clearly sets out that specific legal drug limits or limits for drugs is more complex than for alcohol. The proposed limits reflect the best scientific evidence and were informed by the experiences of other countries. The Government of Canada has received its scientific evidence on issues relating to drug-impaired driving for more than 30 years from the Drugs and Driving Committee of the Canadian Society of Forensic Science.
In my view, there is convincing evidence to support our proposed approach in Bill C-46. The Standing Committee on Justice and Human Rights agreed with our assessment. I would specifically direct your attention to the DDC’s report on drug per se limits. In that report, the DDC outlines scientific considerations for the legal limits of various drugs. It would not be prudent to delay this initiative, in my view, in the hopes that science will provide different or new conclusions. We will continue to invest in and monitor scientific developments in this area and will be responsive to any changes.
Part 1 of the bill would come into force on Royal Assent, as it is necessary, as soon as possible in order to deal with the drug-impaired driving that is currently occurring on our roads. The most recent Juristat from Statistics Canada indicates that the rates of drug-impaired driving are increasing. Police reported that incidents of drug-impaired driving almost doubled from 2009 to 2015.
With respect to the reforms related to alcohol-impaired driving, I am convinced that the Part 2 reforms will increase deterrents, facilitate the investigation and prosecution of impaired driving, and reduce delays in the courts.
As the committee noted in its recent report Delaying Justice is Denying Justice, impaired driving is among the most litigated areas of the criminal law. Additionally, these Criminal Code provisions are challenging to interpret and implement.
A key objective of the bill is to create a more comprehensive and modernized legislative framework. As such, Bill C-46 proposes to repeal the entire transportation regime of the Criminal Code and replace it with a new part that is more clearly drafted and organized.
It also proposes some significant policy changes, most notably authorizing mandatory alcohol screening. This would permit a police officer to demand that a driver provide a preliminary breath sample without first needing a reasonable suspicion that they have alcohol in their body. The police would be authorized to demand the sample only where a lawful stop has occurred and where they have an approved screening device at hand. I believe that mandatory alcohol screening is likely to have the biggest impact in deterring impaired driving.
This has been the experience of other jurisdictions when they implemented this power. For example, in Ireland, when they adopted mandatory alcohol screening in 2006, it was credited by the Irish Road Safety Authority with reducing Irish road deaths by 40 per cent in the first four years after implementation and nearly 25 per cent in the first year alone. Other jurisdictions are having similar success.
This is why I believe that Canada must move toward this model of enforcement. We must take all efforts to prevent and detect impaired driving.
I am aware of the racial profiling concerns that have been raised. I want to be clear that mandatory alcohol screening does not change the responsibility that law enforcement has to ensure fair and equal application of the law. Additionally, the Standing Committee on Justice and Human Rights amended the preamble of this bill to ensure it clearly articulates that all investigative powers must be exercised in accordance with the Canadian Charter of Rights and Freedoms.
Other key proposals of the bill relate to issues of proof of a driver’s blood alcohol concentration and changes to the over 80 offence and Crown disclosure. In addition to facilitating the investigation and prosecution of impaired driving, these proposals will create trial efficiencies and reduce court delays, which is again consistent with the recommendations from this committee on delays.
First, Bill C-46 proposes to make it easier to prove a driver’s blood alcohol concentration by providing that it will be conclusively proven if the Crown can prove beyond a reasonable doubt that certain conditions are met that indicate the approved instrument was operating properly. This reflects the fact that these approved instruments are scientifically sound. We can be confident that when they are operated by a qualified technician in accordance with the guidelines of the Alcohol Test Committee, they produce reliable, valid results of the driver’s blood alcohol concentration. This would result in trial efficiencies, as an accused person would no longer be able to delay a trial by challenging approved instrument results that decades of experience show are scientifically sound.
Second, Bill C-46 proposes efficiencies with respect to the disclosure obligations of the Crown. The bill would clarify that only material that is scientifically relevant is required to be disclosed. This would eliminate the opportunity for unnecessary debate over irrelevant evidence and the need for producing irrelevant disclosure.
Finally, Bill C-46 proposes to eliminate the bolus drinking defence and limit the intervening drink defence. The bolus drinking defence refers to situations where a driver consumed alcohol just before or during driving and claims they were not over the legal limit while driving. It was only later, after all the alcohol had been absorbed, that they were over the limit. The intervening drink defence refers to situations where a driver consumed alcohol after drinking but before providing a breath sample at the station.
It is clear that both of these defences encourage risky behaviour and undermine the integrity of the justice system, as a driver is intentionally interfering with the breath testing process. Eliminating them would create more efficient trials.
In the time I have available I am not able to go through all of the elements of this bill, but I draw your attention to the legislative backgrounder and the Charter statement that provide, in my view, more valuable information as you embark on your study.
In conclusion, to quote the Chief Executive Officer of MADD Canada, Andrew Murie, in a letter to the honourable senators on November 28, 2017, wrote that Bill C-46 represented a powerful step forward in the fight to stop impaired driving, that it would have a tremendous impact on the reduction of impaired driving, and that it would make Canadian roads safer. I could not agree more. I believe the impact of this bill will be important in terms of protecting Canadians from the tragedies that we’re seeing as a result of impaired driving.
Thank you, honourable senators, for the opportunity to make those remarks, and I look forward to your questions.
The Chair: Thank you very much, Minister. Senator Boisvenu, the deputy chair of the committee, will ask the first question.
Senator Boisvenu: Welcome, Minister. Since we don’t have much time, I would appreciate you keeping your answers brief.
Is it true that the bill before us enables you, by regulation, to establish sentences for those who have exceeded the allowed limit of 2 nanograms to 5 nanograms? Does the bill currently give you the power to establish sentences by regulation?
Ms. Wilson-Raybould: That’s not true, senator.
Senator Boisvenu: That’s not true.
So Parliament will still have to amend the Criminal Code to establish sentences related to this bill.
Ms. Wilson-Raybould: Are you talking about the penalties in this bill or the levels? You’re talking about the penalties.
Senator Boisvenu: Yes.
Ms. Wilson-Raybould: The penalties are articulated in the legislation and then in the Criminal Code.
Senator Boisvenu: My other question is about minimum sentences. For a decade, victims groups have been calling for us to establish minimum prison sentences for those who cause a death when driving while impaired.
The bill would establish a $1,000 fine as minimum punishment. Let’s put ourselves in the shoes of a victim’s family or Mr. Blair, a former police chief who spent his whole life dealing with victims’ family members. Don’t you think that a minimum fine of $1,000 is a step backwards in terms of what the Criminal Code already stipulates for an individual who caused a death while driving impaired?
Ms. Wilson-Raybould: Thank you, senator, for the question. It is definitely an important one, without question. I have had the opportunity, as has my parliamentary secretary, to meet with countless victims who have lost loved ones as a result of impaired driving. We have had many conversations.
One of the main purposes of Bill C-46 is deterrence. I have had many conversations with MADD Canada and recognize that sentences have been imposed by judges in the country which recognize the seriousness of impaired driving causing bodily harm or death. Recently, we have had sentences that have been handed down for impaired driving causing death in the range of 10 years. I have confidence in our justices across the country to recognize the seriousness of the impact of impaired driving on our roads, particularly where it caused bodily harm or death and to administer or impose sentences in accordance with that.
Senator Boisvenu: Minister, when impaired driving causes a death, do you really think a $1,000 fine is enough to deter people from driving inebriated?
Ms. Wilson-Raybould: I believe sentences that have been imposed by justices on individuals who drive while impaired and cause the death of an individual have been significantly high. I recognize that those judges will continue to administer or deliver sentences that are in accordance with the facts that they have before them.
Senator Boisvenu: Here is my last question. Why not take the average of sentences handed down in Canada over the past 5 or 10 years and at least impose a prison sentence?
Ms. Wilson-Raybould: I have to say that we are not necessarily changing things now. The $1,000 fine currently in the Criminal Code, to be very honest with you, was an oversight in the terms of the drafting. An amendment was made in the other place to put that back in, but I don’t believe anybody in this room could imagine that there would be the imposition of a $1,000 fine for an individual who, when impaired by alcohol or drugs, caused the death of an individual. That is a minimum. The maximum is life. Judges have reflected the severity of these crimes in terms of the sentences that they’ve imposed, most recently in a case called Muzzo, where a 10-year penalty was imposed on the driver who caused the death of an individual.
Senator Dupuis: Minister, thank you for agreeing to appear before the committee.
My first question is about clause 320.12, which recognizes that operating a conveyance is a privilege and not a right. That is a worthwhile element being introduced into the Criminal Code. It’s not really seen elsewhere in other pieces of legislation. I’m trying to understand how that recognition is expressed, since this clause introduces a sort of an interpretative introductive section. Subclause 320.12(d) stipulates that an evaluation conducted by an evaluating officer is a reliable method of determining whether a person’s ability to operate is impaired by a drug. A bit further in the bill, under subclause 320.31(6), a new presumption on drugs is created. Why use a recognition and declaration section when a presumption is created that nonetheless reverses the burden of proof?
Ms. Wilson-Raybould: Are you speaking with respect to the declaratory statement that driving is a privilege and not a right?
Senator Dupuis: Yes, about that one, as well as about the fourth paragraph. In other words, by introducing that new section in the act — which is still exotic compared to other ways to legislate — a presumption is created that reverses the burden of proof. The clause follows something of a declaratory clause, and I am trying to grasp the intent or the goal of introducing that in the bill. I thought that, if I was wondering about it, I was probably not alone.
Greg Yost, Counsel, Criminal Law Policy Section, Policy Section, Department of Justice: First, the declaration shows Parliament’s confidence in the evaluation procedure. Of course, in a given case, the evaluating officer is subject to a cross-examination to determine whether they followed the twelve steps of the process.
The presumption is based on the fact that, after an hour, following the 12 steps, a drug was detected that, according to the evaluating officer, impaired a person’s ability. The only rebuttable presumption is that the drug identified as having impaired a person’s ability was in their body at the time of their arrest, when the police officer found evidence that made them believe that the individual’s ability was drug impaired. This is a time-related presumption more than anything else. The drug was in their body at the police station and was impairing them then, so it is presumed that the same was true on the side of the road. Obviously, the individual may present evidence that something else could have caused the symptoms, but they are alone in having that knowledge.
Senator Dupuis: Based on your answer, the presumption can be rebutted.
Mr. Yost: Certainly, yes.
Senator Dupuis: Here is my question. If we look at tests for alcohol content that seem to be better defined, very clear tests are used. Elements such as expert testimony can be recognized, and there is no need to provide evidence. Is this presumption not introducing an additional burden for the individual being accused of operating a conveyance while impaired by a drug, including a financial burden for that individual who may have to pay an expert to obtain evidence to show that this was not the case?
Mr. Yost: As things currently stand, the person would appear before the court today on the basis of the evaluation carried out by the evaluating officer. The evaluating officer would have to have followed all the steps, including the analysis that detects the presence of a drug. That has been sufficient in a number of cases — perhaps in hundreds of thousands of cases — for a conviction. Nevertheless, a few judges have said they found it very interesting that an individual would have those substances in their body. What happened on the side of the road? That presumption is being created. The individual does not have to prove something at 51 per cent certainly, but only raise a reasonable doubt.
The Chair: Honourable senators, I remind you that the majority of you have asked to speak.
I will now ask you to be to the point. We have the minister before us and we will have to adjourn by 5:15 p.m. because a scheduled vote will take place in the Senate Chamber. I invite senators to take that into consideration.
Senator Carignan: Welcome, Minister. I will get straight to the point. Bill C-46 was introduced on the same day as Bill C-45. It was introduced as a bill whose particular goal was to address the concerns related to the legalization of marijuana in relation to impaired driving. Oddly enough, when we consider the bill, we realize that it provides for random testing for alcohol, but not for drugs. That surprised me. Can you explain to us why a bill related to the legalization of marijuana does not contain any random testing measures for drugs?
Ms. Wilson-Raybould: Thank you for the question. I know, senator, that you’re very knowledgeable in this area and have certainly taken a vested interest in it for some time.
I will say, with respect to alcohol-impaired driving, that mandatory alcohol screening has been introduced. The reason there isn’t mandatory drug screening is that the science around drug-impaired driving and the recognition of levels of impairment within an individual is not as advanced or as exact as alcohol-impaired driving.
Having said that, we are closely following the science in terms of drug-impaired driving. We take, as a base position within this legislation, a very precautionary approach that any level of drugs in a body is impairing. We’re going to continue to ensure that we work with the Drugs and Driving Committee as the science further develops. We have made provisions to enable us to follow that science and make any necessary amendments that would be required.
Senator Carignan: With all due respect, your answer worries me, as courts will read what is being said today and, in the same bill, you are introducing a “per se” limit, an offence with a limit of 5, or 2 to 5, depending on whether alcohol is involved. If science is not advanced enough to create random testing to detect drugs, how can you simultaneously create this kind of an offence?
Ms. Wilson-Raybould: We have benefited extensively from the scientific research that the Drugs and Driving Committee has undertaken and has provided in terms of the testing. We are working with them to develop devices that will enable us to take oral fluid screens of an individual on the roadside. We have introduced within Part 1 of this bill various ways that law enforcement can discern whether or not there is impairment with an individual from the oral fluid screening device, to the drug recognition evaluation, and ultimately to having a blood sample that would conclude the per se level or levels of the drug impairment within an individual.
They are allied with other jurisdictions. The U.K., for example, has the 2-nanogram limit. In the United States in Oregon there’s the 5 level. There’s scientific evidence with respect to the 2 to 5 that reflects a level of impairment where individuals should not be getting behind the wheel of a car and driving. Again, I underscore it’s our view that when taking any drugs at any level you shouldn’t get behind the wheel of a car.
Senator Carignan: Quickly.
The Chair: I will call you back up in the second round, Senator Carignan.
The officer of the department will, of course, have an opportunity to be heard again.
Senator Pratte: My concern is related to potential weaknesses, and it’s not unrelated to Senator Carignan’s questions. Impaired driving is mentioned four or five times in the preamble. The objective of the bill is to get at impaired driving. I am wondering what will happen the first time a driver is arrested and is found to have, let’s say, a little over 2 nanograms of THC and he feels that he was not impaired.
He tries to go to court and say, “Listen, I may have been over 2 nanograms, but you have no proof that I was impaired.” I know that according to the act being over 2 nanograms you do not have to prove that he was impaired. It’s an offence. Still, he could try to go to court and say, “Listen, this bill is supposed to go after impaired drivers and I am not impaired and there’s no proof that over 2 nanograms is impaired.”
There are situations possible, according to the act, where a police officer could ask for both a blood test and a drug recognition evaluation. If the officer asks for both, you could have a situation where the blood test shows that the driver is under 2 nanograms, but the drug recognition expert has found that he’s impaired, or the opposite. What happens then? The driver could go to court and say, “Listen, you have two contradictory results.” What happens? I wonder if there are some weaknesses there that could be, shall I say, exploited by a driver. I’m a bit concerned about that.
Ms. Wilson-Raybould: I appreciate the question and it does pick up from Senator Carignan’s questions. I will say, and this reflects back to the previous question, that drug-impaired driving on the roads is a problem now that we have to do something about. In preparing Part 1 and Part 2 of this bill, we have done everything possible to ensure that we prevent this from happening as much as possible and put in place the measures to act as a deterrent.
In terms of law enforcement’s tools, we’ve sought to provide law enforcement with additional tools in order to be able to detect whether an individual is drug impaired. It’s recognized in Part 1 of the legislation that there are a number of ways that a law enforcement officer is able to make that determination, ending with a blood test at the police station.
Your scenario would have to be considered on a case-by-case basis, but we are leaning on the best scientific evidence in this regard with respect to setting the per se limits that have been stated to cause impairment in an individual who has consumed drugs.
We have invested significant amounts of dollars to bolster the drug recognition evaluation that law enforcement individuals can undertake in addition to the blood test. This is all looking to bolster the tools that law enforcement officers have and to provide them with the necessary training to do their jobs. Ultimately, at the end of the day, if a case makes it into a court it would be the determination of the judge to weigh all of the evidence and the obligation on the Crown to present its case.
Senator McIntyre: My question is a follow-up to questions already raised by Senators Carignan and Pratte. It has to do with the reliability of breath testing equipment as opposed to drug screening devices.
The reason I am asking this question is because over the years both the scientific and legal communities have recognized the reliability of breath testing equipment mainly because the Alcohol Test Committee, better known as ATC of the Canadian Society of Forensic Science has been responsible for ensuring that breath testing equipment used in Canada meets the strict specifications.
Is the science behind the contemplated drug screening devices solid enough at this point to go forward with the changes proposed in Bill C-46? Could you please explain?
Ms. Wilson-Raybould: As I indicated in previous answers, we are proceeding based on the best scientific evidence that we have. With respect to the devices that law enforcement would use, these drug screeners would not be approved unless there was confidence that they were able to perform their function. They would not be provided to law enforcement officers if that were not the case.
We’re confident, based on the work we’ve done and continue to do, leading up to legalization and hopefully the passage of this piece of legislation, that we will have the technology to enable law enforcement officers to do their jobs and comply with the act and the tools that are contained therein.
Senator Batters: In this Bill C-46, as has been touched on a little today, your government will allow random breath testing for alcohol but does not provide a similar procedure for random drug testing.
When you were asked about this in front of the House of Commons Justice Committee, at two different times you responded that for drug testing “the science continues to evolve.” Today, in response to one of my colleagues’ questions, you said that science is not as advanced, not as exact.
Minister, given that drug testing has not sufficiently evolved at this point, in your own words, why is your government legalizing, not decriminalizing, the most widely used illegal drug?
Ms. Wilson-Raybould: Driving while impaired, including drug-impaired driving, is a problem on the roads right now. We are working incredibly hard, within our government, with our partners in the provinces and territories, and in the work we’re undertaking, to be able to detect individuals that get behind the wheel of their car after having consumed drugs is addressed appropriately based on scientific evidence, based on the Drugs and Driving Committee that has been providing us with scientific advice, as I said, for decades.
We have put in place, in terms of Part 1 of this bill, additional measures including the oral fluid devices that will be provided to law enforcement officers. The Drugs and Driving Committee has confirmed to us that they’re confident they will be ready to enable law enforcement officers to be able to detect the per se limits that are contained within the legislation and again provide an additional tool for law enforcement officers to discern whether an individual has been under the influences of drugs.
Senator Batters: Minister, this Senate committee recently concluded an excellent 18-month study on criminal court delays. Despite that study and the dire consequences that result from the criminal court delays in Canada, your government continues to delay in fixing this critical issue, including 63 judicial vacancies that still plague our justice system.
Our court delay study found that the huge number of impaired driving charges, as you alluded to, right now is an absolute glut on the criminal justice system. Last May, when we were in Halifax, the Halifax police chief told me that he was highly concerned about the drastic impact your government’s plan to legalize marijuana would have on an already very stressed court system.
Given the court delay crisis in Canada right now where people charged with first degree murder have had their cases dismissed, why are you, as the justice minister, exacerbating this already massive court delay problem?
Ms. Wilson-Raybould: Thank you, senator. There are a number of questions and statements in there. Without getting into detail about the appointment of judges, I am very proud of the appointment process that we have put in place, last year alone appointing more judges than anyone in the last two decades.
In terms of delays I want to say, as I have before, before this committee that I really appreciate the work you have done and the reports you have provided with respect to delays in the criminal justice system. This is a huge concern of obviously all of yours and a huge concern of mine.
I will say, with respect to what was stated in your report and what I said in my opening comments with respect to impaired driving, this is one of the biggest prosecuted areas in our courts. A number of measures are contained within Bill C-46 that will significantly address or seek to address delays as we broadly look to rewrite the impaired provisions in the Criminal Code from disclosure to the blood alcohol concentration and how that can be proven, to acting as a significant deterrence by putting in place mandatory alcohol screening.
The measures we’ve put in place, and I haven’t named them all, will contribute greatly to a reduction in the procedural challenges, the disclosure requests, and proving the qualifications of a drug recognition evaluation expert. The number of measures we’ve put in place will contribute toward a reduction of delays, I will add again, particularly around mandatory alcohol screening and the deterrence measures I believe we have been told exist in Bill C-46, particularly in Part 2, that will contribute to the reduction of those delays. I take delays in the court system very seriously.
Senator Eaton: Thank you, minister. It is nice to see you again. I understand from your answers to Senator Carignan and Senator Pratte that the science for drugs has not caught up with the science for alcohol testing. Really, the only people we have are what they call drug recognition expert officers.
I am a Torontonian. I sm thinking of the cities of Toronto and Vancouver, big cities across Canada. I am also remembering that FETCO came before the Finance Committee, when we were looking at the budget, to say how they were very worried about people like pilots and long-distance truck drivers. If it’s not you, perhaps Mr. Blair knows more about this. How many experts do you hope to have trained and what is their training? Do you foresee sometime, minister, that there will be random testing at airports or truck depots or in schools?
Ms. Wilson-Raybould: I appreciate the question. My colleague, Minister Goodale, the Minister of Public Safety, will be appearing before your committee tomorrow to speak more in detail in terms of the drug recognition evaluation and the significant amounts of money that our government has invested to ensure that law enforcement officers are trained in DRE, in the amount of $161 million. This is a good process and 12-step procedure. I only have to look to my left to know that I have a parliamentary secretary that is very familiar with drug recognition evaluation.
I would invite him to speak on the importance of the DRE, how it’s operating, and the investment we’ve made in it.
Hon. Bill Blair, M.P., Parliamentary Secretary to the Minister of Justice and Attorney General of Canada and to the Minister of Health: Very briefly, law enforcement leaders have been urging the government to support drug recognition expert training here in Canada. With the current training that’s available, the officers have to go to the United States for accreditation. We’ve listened to that and we’ve been consulting closely with the Canadian Association of Chiefs of Police to develop in Canada a drug recognition training program that will be available in both official languages. That money has been available.
Senator Eaton: In places like Colorado and Washington, have they developed good screening techniques for drugs?
Mr. Blair: They have developed some screening techniques. They use oral fluid test kits there, and throughout the U.S. they use drug recognition experts who are accredited currently by the International Association of Chiefs of Police, which is an American-based organization.
We want to make sure those courses are affordable and accessible to all Canadian police services and available in both official languages. That is why we’re investing with the RCMP in developing a made-in-Canada drug recognition expert training program. There are currently approximately 600 officers trained as drug recognition experts across the country.
Canadian chiefs have told us they need as many 3,000, so we’re making the resources available to get that training done.
Senator Gold: I want to talk about alcohol a bit, if we can. In your speech in the house on October 27, you noted correctly that mandatory alcohol screening is most effective when all drivers know they will be tested. I think that’s part of what underscored some of the evidence from the other jurisdictions, because the introduction of random screening or mandatory screening was accompanied with publicity.
Can you talk a bit about how you’re to implement this information campaign? Has it begun? In particular, how will you roll this out with your partners in the provinces in rural communities where there are fewer resources available in terms of law enforcement and where there is also some risk, I would suggest, when the local officer knows everybody around? Are you concerned about a risk on the one hand of profiling? For instance, we know that a black Chevy belongs to so-and-so. Will someone get a pass because it’s just Joe and he doesn’t live too far away? We know he’s pretty good even though he has a drink or two.
How will it work, so Canadians know it will be applied effectively and fairly?
Ms. Wilson-Raybould: First of all, in terms of Part 2, the alcohol segment of Bill C-46, we have put into the bill a 180-day or six-month coming into force, recognizing we’re making substantive changes to the Criminal Code. We are looking to provide, implement and invest the resources we’ve committed to law enforcement for training, for the devices and supporting our colleagues in the provinces, territories and municipalities with the ability to gain access to these resources and to make decisions about how they want to move forward. We will support that work.
In terms of mandatory alcohol screening and the question around racial profiling, Bill C-46 in Part 2 does not give law enforcement officers any other powers. A mandatory alcohol screening can be administered based on a lawful stop. Perhaps my parliamentary secretary can speak to this as a former law enforcement officer and chief of police. I have confidence in our law enforcement officers that they will abide by the laws and will be provided with the necessary training required to ensure they follow the laws as they’re written.
Again, the mandatory alcohol screening, throughout the world in almost 40 different jurisdictions, has been proven to reduce the numbers of death and injury on the roads. I am sure that Minister Goodale might have something to say tomorrow with respect to the work he’s doing with law enforcement agencies across the country and within the provinces and territories among his colleagues.
Senator Boniface: My interests are quite different from those of Senator Gold’s. I was interested in the awareness campaign around driving. The Colorado experience was that they didn’t do a significant one around driving. Consequently, they had the results they did. I am interested in what that campaign will look like and how much will be spent around that. I know some have started. I am wondering how you intend to match it up going forward with the coming legislation.
Ms. Wilson-Raybould: In terms of communications and education, as you’ve stated, senator, this work has already begun, for example by social media and otherwise, in many different forums to reach many different audiences. Our government initially made a $9.6 million investment and topped it up with over $36 million that will continue the public education campaign being led and driven by my colleague, the Minister of Health, around highlighting the reality of the impacts of drugs as we move toward the legalization of cannabis in the regulation.
Both Minister Goodale and I, in working with civil society and our partners in the provinces and territories, continue to consider this public education and communication as a necessity for us as we move toward legalization and ensure that the provisions contained in Bill C-46 are known to as many people as possible. We’ll continue that campaign.
Senator Pate: Thank you very much to all of you for coming and for all of your work on this, as well as to Senator Boniface for sponsoring the bill.
All of us here want to see a reduction in and hopefully an elimination of any kind of impaired driving, but we know that laws basically set a standard for the behaviour we expect of people. For that reason, this law is a step in the right direction of saying this is a standard; namely, that we don’t want to see impaired driving.
We also know from witnesses before the Justice Committee, as well as ample evidence and decisions from the Supreme Court of Canada, that it’s not mandatory minimum penalty that in actual fact reduces behaviour. It’s education. It is the certainty of people being caught, as you spoke about as well in one of your comments on this, minister.
Given that, why is there a decision to actually put in place more mandatory minimum penalties or to persist with mandatory minimum penalties? Also, how do you reconcile that with subsection 718.2(e) of the Criminal Code and other provisions that call for less restrictive measures?
I was going to ask about the education, but you answered that when Senator Boniface asked about it. I am happy about that. I am interested in treatment options because we know that those who have the greatest resources often can avail themselves of the treatment exemption to the mandatory minimum, but those who don’t can’t because of limited options.
Basically, how do you justify the mandatory minimum? What will put in place to ensure that those who can get an exemption have access to it in a way that doesn’t exacerbate existing discriminatory approaches within the system?
Ms. Wilson-Raybould: Thank you, senator, for the questions. You and I have had a number of discussions around mandatory minimum penalties. It’s no secret of mine or our government that we are looking at mandatory minimum penalties, their utility, and what amendments potentially could be made.
In the case of MMPs with respect to impaired driving, we have benefited from Supreme Court decisions in Nur and Lloyd that speak to the constitutionality of certain mandatory minimum penalties.
With respect to impaired, there is not the broad spectrum of ways in which impaired driving can be committed. There is not the diversity of the reasonable hypotheticals we’ve seen in other cases that render a mandatory minimum penalty, as the Supreme Court says, unconstitutional. Mandatory minimum penalties in the impaired driving reality actually have been seen as acting as a deterrent. We have a fine on a first offence, and then the second offence would result in a brief term of imprisonment.
We very seriously considered MMPs with respect to impaired driving. We talked with stakeholders, including MADD Canada, who are more focused on the actual deterrence and strongly advocated for the mandatory alcohol screening but not looking at doing or taking measures to amend the mandatory penalties or include more mandatory minimum penalties that would result in perhaps significant other amounts of litigation. We feel that law enforcement and the justice system working together and mandatory minimum penalties with respect to alcohol or impaired driving have worked.
In terms of your other question around the ability for treatment, we have made provision in Bill C-46 to enable a judge not to impose the mandatory minimum penalty if an individual has gone through treatment within a respective jurisdiction. Judges would be able to exercise their discretion if the individual had successfully completed a treatment program.
Senator Pate: Would that be expanded? It’s still only if there’s no bodily harm, though, no harm to someone. Is that correct?
Ms. Wilson-Raybould: Yes.
The Chair: If I may jump into the conversation at this stage and ask a question before I go on to second round.
As you have realized, there are still lingering questions around the table in relation to the scientific base on which the drug testing will be made. Would you table with this committee the study or evaluation by the department in relation to those instruments and techniques so that our members would be more convinced at this stage that the capacity that exists, as you have referred to, is reliable and is a sound base for this bill? Could you table with this committee the analysis and evaluation of the technology that you might have been able to gather in the drafting of this bill?
Ms. Wilson-Raybould: We would be happy to table the reliability of the devices and the pilot that has been commissioned by Public Safety.
The Chair: We will have another question, very quickly, from Senator Carignan, before we have to adjourn. I hear the bell ringing.
Senator Carignan: We don’t have much time, but I would like to follow up on Senator Dupuis’ question about the notion of privilege compared to the notion of right. You are introducing the principle that it is a privilege to have a driver’s license. So far, so good, but the bill does not only apply to people driving automobiles; it also applies to airplane pilots and train conductors. If they lose their driver’s license, they lose their job. It is not just a matter of privilege, but also of the right to employment. Has your department looked into the impact of changes to the burden of proof for someone who would lose their job?
Mr. Yost: The current situation prohibits anyone who has been found guilty of drug or alcohol-impaired driving from operating a conveyance, whether we are talking about a simple train conductor or a pilot. Some people lose their job for those reasons, and that will still be the case with the new legislation. We simply facilitated the evidentiary process when it comes to drug impaired driving.
The Chair: Thank you very much, Madam Minister. I understand that you will make your officers available later on in the course of our study, and we’ll be happy to welcome them back to this table.
(The committee adjourned.)