THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Thursday, February 1, 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 10:30 a.m. to continue its study of the bill.
Senator Serge Joyal (Chair) in the chair.
The Chair: Honourable senators, welcome to our meeting this morning.
We also welcome the members of the public, who have the opportunity to participate remotely in our deliberations. We are continuing our study of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts.
It is my pleasure to have welcomed you, minister, this morning and also to welcome the officers that accompany you.
We welcome Kathy Thompson, Assistant Deputy Minister, Community Safety and Countering Crime Branch, from the Department of Public Safety and Emergency Preparedness, and Kevin Brosseau, Acting Commissioner of the Royal Canadian Mounted Police. Welcome everyone.
Mr. Minister, you know the procedure well. We invite you to make an opening statement, and we will then have an exchange with the honourable senators on this committee.
The floor is yours, minister.
The Honourable Ralph Goodale, P.C., M.P., Minister of Public Safety and Emergency Preparedness: Thank you, Mr. Chair and honourable senators. It is a pleasure to join you this morning to discuss Bill C-46. As you know, that is legislation aimed at better addressing the long-standing public safety concern of impaired driving.
I’m very pleased to be joined by the officials that you mentioned, Mr. Chair: Kathy Thompson, the ADM for Community Safety in Public Safety Canada, and Kevin Brosseau, RCMP Acting Commissioner.
This bill is part of a series of measures taken by our government to combat alcohol- and drug-impaired driving, which have been longstanding public safety concerns. These phenomena are by no means new, but they are deadly.
Bill C-46 will put in place a regime to combat impaired driving that will be among the strongest in the world. It is one element of a comprehensive strategy that also includes awareness campaigns and a significant investment of new resources.
As you know, Part 1 of the bill proposes a robust approach to counter driving while under the influence of drugs. First, it authorizes a police officer, with reasonable grounds to suspect that a driver has drugs in their system, to require that driver to provide an oral fluid sample. This is in addition to the current authority to administer a standardized field sobriety test.
A positive reading from a roadside oral fluid drug screener would then help establish reasonable grounds to believe that an offence has been committed. Once an officer has that belief, they can either require a blood sample or a detailed evaluation by a drug recognition expert. Taking a blood sample as soon as possible is key because certain drugs leave the bloodstream quickly but continue to have an impairing effect.
The legislation would also create three new offences for having prescribed levels of a drug in your blood within two hours of driving, with penalties varying based on the type of drug, the levels of the drug in the blood, or the presence of a combination of both drugs and alcohol.
In order to ensure that Canadian police officers have the technology they need to enforce laws against drugs impaired driving, important work has been done recently on the science and testing of roadside screening technology.
Between December of 2016 and March of 2017, the Toronto Police Service, the Vancouver Police Department, the Ontario Provincial Police, the service de police de la Ville de Gatineau, the Halifax Regional Police Service, and RCMP detachments in both North Battleford, Saskatchewan and in Yellowknife participated in a groundbreaking pilot project to study oral fluid screening devices in the Canadian context, including the dead of winter.
Officers were trained in the use of two different roadside drug screening devices that test saliva for the recent presence of certain drugs. These devices were selected based on previous testing and their successful use in other jurisdictions. Motorists and passengers were asked to submit voluntarily a saliva sample.
The results were publicly released in June of last year. Overall, the officers involved reported that the devices were easy to use in various weather conditions, temperature and lighting. Devices are now being further evaluated against technical standards from the Canadian Society of Forensic Science so that they can be officially certified for use. As I indicated, there is very positive experience with this equipment in other jurisdictions like Australia, France, Spain, the United Kingdom and others.
Last year, to support law enforcement across the country and to help them enforce the new regime, we announced a new federal investment of $274 million. This includes funding to train officers in how to recognize the signs and symptoms of impaired driving and in how to deploy roadside screening devices.
Part 2 of Bill C-46 would allow for random roadside breath testing to screen for alcohol. This would permit law enforcement officers to require a breath sample of any driver that they lawfully stop. Such a system has already been instituted in Australia, New Zealand and throughout much of Europe, and it has been shown to measurably reduce the number of collisions and deaths on the road.
The bill would also enact new and higher fines and stronger penalties to ensure that people who make the dangerous and potentially deadly choice to drive while under the influence of alcohol or drugs face the serious consequences that such an offence deserves.
At the same time as we move forward with these important legislative amendments, we know that tougher legislation must be accompanied by enhanced public awareness to ensure that Canadians, especially young Canadians, are aware of all the dangers of driving while impaired.
For example, last spring we launched a social media campaign aimed at young drivers and their parents. That campaign garnered 11.5 million impressions, that is the number of times the content was actually displayed, and more than 75,000 engagements such as likes, comments and shares. More recently, we launched a public awareness campaign on television, online and elsewhere such as in movie theatres and so forth, to spread the mention that driving under the influence of cannabis is extremely dangerous. Too many Canadians still need to hear and comprehend that message.
I will end with this more personal note: When I discussed this issue at a committee on the House of Commons side, I mentioned that I approach it not only as Minister of Public Safety but also as the member of Parliament for Regina-Wascana.
In 2015, according to Statistics Canada, Saskatchewan had the highest rate of impaired driving of any province. Among metropolitan areas, Regina’s impaired driving rate is third in all of Canada, and Saskatchewan is the province where impaired driving has decreased the least over the course of the last 30 years. Too many families in Saskatchewan and across Canada mourn loved ones lost to impaired driving. Too many lives will never be the same. Impaired driving is a leading cause of criminal death in our country and it is totally preventable.
So I feel a deep personal sense of urgency to move forward with these much-needed reforms and I’m sure that sentiment is broadly shared among Canadians. I’m grateful to have the support and encouragement of organizations like MADD Canada, Young Drivers of Canada, the Canadian Automobile Association and the Canadian Association of Chiefs of Police, among others.
I thank you for your attention and I look forward to discussing the legislation.
The Chair: Thank you very much, Mr. Minister. Our first senator to ask a question this morning is the deputy chair of this committee.
Senator Dupuis: Thank you for being with us today, Minister Goodale. You talked about major investments of $240 million over five years for all sorts of things. I am particularly interested in one of these investments. I would like to know which plan will ensure that police forces, be they national, provincial or Indigenous, and customs officers, receive equivalent training nationwide. Also, will they be trained to use devices that have been selected and approved, regardless of whether it is a small town in the Northwest Territories or a large city in Ontario?
Mr. Goodale: That is obviously our objective. We have been working very closely with provincial governments, as well as law enforcement agencies across the country, to develop and implement the training plan. As you point out, a significant portion of the funds identified are aimed at training.
There are two types of officers that need to be trained. First, there are those who do the field sobriety testing at the roadside. The training now includes more than just the physical test that used to be the standard pattern but also the appropriate use of the new screening devices. Officers need to know how to properly deploy them.
A second type of training is aimed at increasing the number of drug recognition experts, the people who are pre-qualified to provide expert testimony. They obviously don’t operate at the roadside. They are back in the detachment. That’s where a person suspected of impaired driving would be taken for the drug recognition expert to do their work.
The broad objective over the course of the next couple of years is to essentially double the number of trained officers we have deployed right across the country. If my memory serves me correctly, there are approximately 7,000 who are the field sobriety trained personnel. The objective would be to substantially increase that number and, as I say, appropriately distribute it across the country. The objective is to double the number of the DRE experts.
The current location of the training is primarily in the United States. This is what the funding is for, to make sure people can access that training. At least one province, and perhaps others, have indicated an interest in establishing their own training capacity in Canada, which would have the advantage of making it much more convenient and probably less expensive to get the necessary training.
To your point about making sure the quality of the officers’ work, whether they are in a small rural area or a downtown metropolitan area, our goal is clearly to ensure that quality is even right across the country.
Senator Dupuis: I have another question to ask you to follow up on your answer. I understand the objective of doubling the number of agents to be trained. However, what is the training plan, and how will it be developed? I’m thinking of experts from Quebec who are invited to give this training in the United States. What efforts will be made here to find existing expertise? We know that there are many experts in specific fields, but these experts may not currently be in contact with one another. I’m wondering if efforts will be made in this regard to coordinate expertise that we have here, which is fragmented and applicable to very specific fields. If they are able to train Americans, I imagine that they are able to train people here in Canada.
Mr. Goodale: There is a great deal of ongoing discussion right now, and it is in the process of being intensified over the next number of days, actually, between my officials, the people working in Kathy Thompson’s area and all their provincial counterparts. They are looking exactly at the question of where the expertise can be best utilized and how we can both fairly and cost effectively allocate those available dollars to make sure we get the training done appropriately, up to high standards and by maximizing the utilization of Canadian resources.
That very topic, senator, will be actively under consideration by federal and provincial officials in the days immediately ahead.
Senator Boisvenu: Mr. Minister, welcome. Thank you for being here. We know that road deaths have significantly increased in most states where marijuana was legalized, particularly when young people are involved. I find it rather unwise that the government wants to legalize this drug in the middle of the summer, when we know road accidents are at their highest across Canada. In the last year, most police forces have significantly pressured the government to delay the implementation of this bill to ensure that all police forces are well equipped and well trained to conduct efficient roadside checks. In your opinion, Mr. Minister and Mr. Brosseau, what percentage of RCMP detachments currently have evaluating officers who are available 24/7, and who have been trained to test for drugs?
Mr. Goodale: I’ve just checked with the deputy commissioner on the availability of those particular statistics, senator. Kevin Brosseau does not have them with him today, but he can provide them to the committee. They are available. We will dig them out and make them available to the committee.
Senator Boisvenu: Since you have a plan to legalize marijuana, are you not concerned by the current lack of specific data on the training of RCMP officers, given that they will be tasked with conducting roadside checks? Right now, you have no specific data on the number of RCMP evaluating officers who would be available 24/7. To me, it seems that this would be the first thing that the Department of Public Safety or the RCMP should be aware of when it comes to officer training.
Mr. Goodale: The information I discussed with provincial attorneys general and provincial ministers of public safety last fall with respect to the availability and the current deployment of testing officers was the following: 3,380 field sobriety trained officers distributed across the country. That is not exclusively RCMP; it’s RCMP and other police forces. Approximately 3,380 were trained in that particular expertise. Our goal is to double that number, as I mentioned in my remarks.
With respect to the drug recognition experts, the current number, again as we discussed with provincial ministers some months ago, is approximately 550. The number varies, as you would understand, because more are being added all the time. It is approximately 550, and our goal of the training is to double that number distributed across the country.
Senator Boisvenu: Mr. Goodale, you mentioned earlier that your province has the highest mortality rate for alcohol- and drug-impaired driving. I have had many discussions with many victims and families of victims. They are shocked to realize that, under the current bill, the minimum fine for cases of accidents resulting from impaired driving causing death is $1,000. We had based this penalty — to my knowledge — on hit-and-run cases. It is as if we are creating a sort of parallel between hit-and-run and homicide. The same fine would apply: a minimum fine of $1,000.
As an MP from your province, you have shown sensitivity towards these mortality rates. How can we accept that drivers causing death, who take the life of a loved one, receive a minimum fine of $1,000?
Mr. Goodale: The Department of Justice looked at the issue of the penalties very carefully, senator. They looked at all the past experience and precedents. As you know, in Bill C-46 the penalties are increased and some new offences are created to make the enforcement of our laws more effective.
On balance, what is produced in the legislation is the government’s best judgment about what is appropriate and effective in the circumstances. Obviously, this matter is under consideration by both houses of Parliament. The House of Commons has passed the measures. The Senate is considering it now. If the Senate is of the view that a different set of penalties would be appropriate, it is open to the Senate to make that suggestion.
The analysis done to date by the Department of Justice in consultation with the provincial attorneys generals has resulted in the framework of penalties that is put forward in Bill C-46. In a number of respects, those penalties are increased from the status quo.
Senator Gold: Minister, thank you for coming today. I believe one of the real challenges with educating Canadians about drugs in general, but cannabis in particular, is a belief among many younger and older adults that there really isn’t a problem having a joint and getting behind the wheel of a car. I have heard it said and read it said that, “Gee, I actually think I drive better. I’m able to concentrate.” We know that’s not true, but it’s a widely held view, especially among habitual smokers.
Could you describe a bit more the content of the educational programs, whatever the media may be, and how you hope to get through to those Canadians who have fairly well-entrenched views? We’re not talking about 15-year-olds, important as that is. We’re talking about people who may have been consuming cannabis for decades and driven without incident, one hopes. How are we to avoid turning them off from the government messages the way a generation or two ago was turned off by reefer madness and the scare tactics that were promoted?
Mr. Goodale: We have worked very hard at this very issue. You’re quite right. There are some people who hold the tragically mistaken view that they’re either not impaired or in fact they drive better as a result of consuming drugs.
We worked with advertising professionals to craft the messages and to test them in the marketplace in terms of their acceptability and their effectiveness. This will be an ongoing process because obviously the communications campaign, in many respects, has only just begun. It will accelerate more and more as we go forward. The whole point is to break through that cloud of naivety and deliver strong, emphatic and compelling messages that get the facts into the hands of young people, their parents and families.
We’ve had very good cooperation from Mothers Against Drunk Driving, from students against drunk driving, from the Canadian Automobile Association, from the Canadian Association of Chiefs of Police and from the Young Drivers of Canada. They have all assisted us in assembling, testing and promulgating the messages.
In many respects, they have taken steps to add to those messages with their own communication plans, which is very helpful. It has to be a flat-out, across-the-board effort to make sure that we get this knowledge into the hands of those who need to know. When there is other chatter on social media, for example, that says, “Oh, don’t believe all of that stuff,” and there are countermessages coming all the time, we have to be proactive in responding to those countermessages as well.
In a fragmented media context, sometimes you feel like you’re playing Whac-A-Mole in keeping up with all of the disinformation, but it is important that we persist in this. We have a budgetary commitment of a substantial number of new resources to communicate.
We are communicating two types of messages. One relates to public safety, particularly road safety, and the other set of messages relates to public health. Obviously, Health Canada is overseeing the health messages, and Justice and Public Safety are overseeing the public safety messages. We are very grateful for all the private sector and NGO cooperation as well as provincial governments. I must commend a number of the provinces across the country that have very active communications campaigns of their own/ Yhey’re all mutually reinforcing. We are trying our very best to keep everyone informed about the message content so all of this can result in a stronger and bigger output and outcome.
I have one interesting statistic that’s pretty telling. Of the drivers who are unfortunately killed in crashes, about 33 per cent test positive for alcohol after the fact and 40 per cent test positive for drugs. That’s today, right now. This problem isn’t one that will suddenly burst upon us in the summer. The problem exists right now, today.
Senator Eaton: Before the Senate Finance Committee, when we were looking at the budget, FETCO came. They represent the employees in transportation and communication. They feel there is a huge risk unless some form of random testing is implemented.
What have you thought of doing about our pilots, our train engineers, our school bus drivers and even our teachers? How can we be sure they’re not going to be high?
Mr. Goodale: There are important considerations and decisions of our courts under the law as to whether or not random testing is or is not appropriate. There are some provinces that want to test this further in terms of what jurisprudence would support. The considered judgment at this point is not to enforce random testing. I understand the concerns of those in certain sectors. Primarily in the areas under provincial jurisdiction, because that’s where it would fall, the government will need to consider very carefully what further tools may be necessary.
Senator Eaton: As you know, there is a transportation bill presently in front of the Senate, which is advocating the use of black boxes for train engineers, just the way they have in planes. Some people feel it’s a terrible lack of privacy; but when you think of what happened in Lac-Mégantic you kind of wonder whether you shouldn’t be considering some form of random testing, for instance, for pilots or long distance truck drivers. It’s kind of a frightening thought, actually.
Mr. Goodale: The issue of public safety in public transportation conveyances is a subject matter that is a major preoccupation for Minister Garneau, as Minister of Transport, and his counterparts across the country. They have considered these issues. Specifically, with respect to the one you mentioned, I would need to defer to Minister Garneau in terms of the response to that because he would be the minister responsible for it.
I understand, though, your deep concern about the situation in Lac-Mégantic, but to the best of my knowledge there were no impairment or drug issues at play in that very tragic set of circumstances.
Senator Eaton: Perhaps I am misunderstanding. You can randomly test for alcohol. Am I correct? Police can stop somebody during a RIDE program and randomly test them.
Mr. Goodale: In a roadside testing program that is recognized.
Senator Eaton: Will you be able to do that for drugs?
Mr. Goodale: In the case of drugs you need to have some reasonable ground to suspect, not believe, that an offence is being committed.
Senator Carignan: I have many questions. I could have continued in this direction and given the example of aircraft pilots. I am concerned with the fact that we can test them when they get off the airplane, but not when they get on it. I will leave this as a comment.
My question is on the degree of preparation and the amount of training drug testing experts have. Yesterday, the Minister of Justice told us that most of the bill would come into force in the 180 days after it was passed, and six months after Royal Assent. We expect that it will not come into force until next fall. However, you want legalize marijuana on July 1. So, cannabis will be legal in Canada, and the bill targeting drug-impaired driving will only come into force in the fall. As a result, there will be a gap. The explanation is that time will be needed to train people and experts in drug recognition, and that it will take six months to do so.
You said just now that 550 drug recognition experts have currently been trained here. I have in front of me the minutes of a meeting of the International Association of Chiefs of Police. In the minutes of a meeting of the association’s technical committee, held in San Diego on October 14, 2016, an RCMP representative mentioned 503 drug recognition experts in Canada. So, in 14 or 15 months, we only have 50 more drug recognition experts. How can you tell us today that you intend to double the number, to train 500 in six months, when it took 14 months to train 50 additional ones? Is that not dreaming in Technicolor?
Mr. Goodale: No, senator, obviously the objective is to accelerate the program. That’s why we put the $274 million forward and why we are working very carefully with the provinces to develop the right distribution of those funds so that police officers under all of their jurisdictions and ours, federally, can receive the training that we need.
I believe you indicated that the conference was in 2016. The effort that we have made in the last year is to accelerate that whole program.
Senator Carignan: If you have accelerated the pace and you have only trained 50 additional ones, I have a hard time seeing how you are going to double the number in six months. I take for granted that you are going to make the necessary effort.
In terms of the training, we also learn in this report that the rules have been amended for Quebec, because, at the École nationale de police, drug recognition experts were being trained with actors rather than with people who have used drugs. In October 2016, the school agreed to train part of the group with actors and another part with drug users. In your plan to establish sites across Canada where drug recognition experts are to be trained, will those sites use people who have used drugs in Canada, or actors, during the training?
Mr. Goodale: Senator, the particular project that you refer to was a pilot project, specifically designed for Quebec, to test out how this would work and whether we could do it successfully. For the most part, as I understand it, people in real life circumstances are used, but we’re testing this pilot in relation to Quebec to see if this can also be a valuable way to accomplish the training. It’s under evaluation.
Senator Carignan: I invite you to be careful with the pilot project. According to the regulations currently in place governing the training of drug recognition experts within the meaning of the Criminal Code, those experts have to be trained under the rules of the International Association of Chiefs of Police. If you conduct pilot projects with actors and you have trained drug recognition experts with actors, when that did not conform to the rules of the association, you will end up with a number of drug recognition experts who have not been trained according to the rules.
I am not convinced that their evidence in court would be valid. I invite you to be particularly careful about that.
Mr. Goodale: I always listen very carefully to any advice about being prudent. I hear your point, sir.
Senator Pratte: Minister, thank you for being here. I am in favour of the legalization of cannabis, but I do have some concerns, one of which is on drug impaired driving. My concerns arise from the very robust and concerning data coming out of Washington State and Colorado.
For instance, the latest data that I received last week from the Washington State Department of Transportation shows that in the last three years they have tested drivers involved in fatal crashes. Even though the percentage of drivers tested has remained the same, at about half of the drivers involved in those types of crashes having been tested over the years, the number of drivers who tested THC positive has doubled from 2008 to 2013. It was at about 35 or 36 drivers and then it doubled to 74, 82 and 79 drivers last year. The data coming out of Colorado is about the same.
Have your staff or the RCMP looked at that very concerning data out of Colorado and Washington State and tried to understand what is going on? Even in those states they are wondering what exactly is going on there. There may be some lessons to learn from what is going on in those states that have legalized marijuana.
Mr. Goodale: Indeed we have examined the experiences in other jurisdictions, including several states in the United States and some other countries, to make sure that we benefit as much as possible from the experience elsewhere. The reality, as all of the data shows, is that legal regimes from the past have been ineffective at keeping cannabis out of the hands of our kids and preventing the black market and so forth. All of those problems exist in spades.
Simply defending the status quo will not solve the problem, which I think you indicated in your first sentence probably contributes to your view that the legalization regime is the right way to go to be more effective than the failed regime that we presently have.
That having been said, we obviously have to put the financial resources into detection, deterrence and appropriate law enforcement. We are doing that. We will continue to do that in collaboration with our provincial partners. We will make use of every bit of data and information that we can collect to be as effective as possible.
The problem we’re trying to deal with is not a problem that suddenly springs into existence in the summer of this year. The problem already exists at a very serious level. As I indicated, the statistics would tend to show that of those who die in automobile crashes, 40 per cent are already testing positive for drugs.
Kathy Thompson is more familiar with the exact statistics you referred to, and I would ask her to comment on your question.
Kathy Thompson, Assistant Deputy Minister, Community Safety and Countering Crime Branch, Public Safety and Emergency Preparedness: We are following those statistics closely. To be honest, it’s a bit difficult to obtain clear information. There is dome information that seems to indicate certainly that the rate of fatal injury crashes has increased significantly when legalization has happened. There are other data out of Colorado, for example, that seem to indicate a reduction in drug impaired driving. We are also trying to understand and reconcile the data.
We have met with officials in a number of jurisdictions, as the minister has said. One of the lessons learned that they have communicated to us is to start your communications before the legalization, and so that is the angle that we have tried to work very hard.
Senator McIntyre: There is no question that with the coming legalization of marijuana Canadians are concerned with road safety. That said, I note that your bill allows for mandatory breath testing but does not allow for mandatory drug testing. In other words, the bill is creating two regimes: one for alcohol and one for drugs.
Why is this? Is it because the drug testing devices, as opposed to the breath testing devices, are not accurate or not reliable enough?
I will go even further. In your opinion, is the scientific evidence supporting the use of drug testing screening devices strong enough to withstand court challenges?
Mr. Goodale: I believe it is. I think part of the difference here is the different role that the testing device plays in relation to the two offences. In testing for alcohol with the so-called Breathalyzer, the collection of a reading at .08 per cent is the commission of the offence itself. If the device shows that reading, presuming the test was administered properly and all the due process features were applied, that proves the offence.
In the case of drug testing, the use of the oral screening device is to move the process the officer is going through from reasonable grounds to suspect there is an offence, to reasonable grounds to believe there is an offence, and therefore require a blood test or the more elaborate procedure that is gone through by a drug recognition expert. The device plays a different role in relation to drug testing as opposed to alcohol testing because the science is different. Because it plays a different role, I think it will be found to be valid and legitimate for the role that it plays in the process.
If a person is stopped and the officer notices that there is a smell in the vehicle or sees that there are red eyes or slurred words and so forth, the officer might well form the suspicion that drugs are involved. With that suspicion he can ask for, under the new law, an oral test. If the oral test, properly conducted at the roadside, comes back positive, the officer may well have reasonable grounds to believe that an offence is being committed. It’s moved from a suspicion to belief. Once the belief is formed, the officer then has the grounds to take the next step, which is either an examination in front of a drug recognition expert or a blood test. That is the definitive proof in relation to drugs.
Senator McIntyre: I want to come back to my final question. Are those devices strong enough to withstand court scrutiny? Are you satisfied with that?
Mr. Goodale: Yes. The science will undoubtedly evolve in this field as it did some years ago with respect to Breathalyzers as well. We wanted, first of all, to know if the equipment could function in Canadian conditions. We tested it through seven different police forces across the country. The results of that came back extremely favourable with officers saying, “Yes, it’s usable. It works in a roadside setting in all weather conditions, lighting conditions, temperatures and so forth.”
Now we are going through the final verification of the precise devices with the certification by the forensic standards organization.
Senator Batters: Minister Goodale, we are both from Saskatchewan. I actually live in your riding of Regina-Wascana. I have heard ongoing significant concerns about your government’s legalization of marijuana plan from a large number of your constituents and from people across Saskatchewan for the last two years. As you mentioned in your opening statement, Saskatchewan does have the highest rating of impaired driving in Canada. It’s a massive problem.
There are some portions of Bill C-46 that are designed to decrease impaired driving. Some provisions our Conservative government originally introduced. With this question, I am not looking for another recitation of those. I want to ask you instead about the Trudeau government’s decision to legalize marijuana rather than decriminalize it.
We need to be clear about that, because mistakenly many Canadians think that you are only decriminalizing it when in fact you are intending to legalize it. As Public Safety Minister, do you think that legalizing marijuana will be more effective in decreasing impaired driving in Canada, and in our province of Saskatchewan, than only decriminalization of marijuana?
Mr. Goodale: I believe the legalization route is the right route to go because it brings with it the greater prospect of dealing with the two troubling issues that triggered this conversation in the first place: The global statistics from the UN and other organizations saying that Canadian teenagers were the heaviest users of marijuana in the Western world. Other statistics showed that an estimated $6 billion to $7 billion in illegal profits flow to organized crime every year because of the illegal sales of marijuana.
As we all know, young people sadly know exactly where to find the sources. They are readily available. The current regime, in place now for about 90 years, has been an abject failure. It has not kept marijuana out of the hands of our kids and it has not kept illegal profits out of the hands of organized crime.
The decriminalization route does not eliminate the black market. The black market continues under that particular approach. The end result is that you don’t solve the problem with a decriminalization approach. You would transform the problem in certain way, but you wouldn’t get rid of it. That’s the objective: Be more effective at keeping marijuana out of the hands of our kids and be more effective in stopping the flow of illegal cash to organized crime.
Senator Batters: I note that your answer didn’t really directly address my question, which was talking about the specific issue of impaired driving and the massive problem that it is.
I will also go on to say that your government has said that there is no safe amount of drugs to consume before driving. Your Justice Minister has admitted several times that roadside drug testing is at this point not fully evolved, not exact, not advanced.
Minister Goodale, as Canada’s Minister of Public Safety, why is the Trudeau government legalizing the most widely used, illegal drug, marijuana?
Mr. Goodale: Because if you delay the solution, you simply delay and perpetuate the problem.
Senator Batters: Are you saying that legalization is a solution, that this will be the solution to impaired driving?
Mr. Goodale: It will be more effective than the regime that has failed for the last 90 years. That is a consensus that has developed even among people of the views of a Newt Gingrich, for example.
Senator Batters: Why do you think the only other country in the entire world is Uruguay that has legalization as its approach?
Mr. Goodale: I would cite such civilized and advanced places like Colorado, Washington, California, New York state and many others that are moving in that direction that have been convinced by the logic that the present regime has failed. You can perpetuate failure or you can try something that has a better chance of success.
The considered view of the government, and we are certainly accumulating the evidence to demonstrate a majority of Canadians, is that the approach we are adopting in Bill C-45and Bill C-46 has a better chance of succeeding than what has failed for 90 years.
Senator Pate: I thank you for being here, minister, and I want to commend you for the public education and social media campaigns you have talked about. You know, as is on the government website, the impact in terms of impaired driving. We know long term that most experts in this area will say that it’s not the mandatory minimum penalties or the sentencing regimes but the education regimes that go along with the standard of setting a criminal law standard of behaviour that we expect really has the most effect.
I appreciate the comments about some of this area. I appreciate your mentioning that the committee could also look at the penalty provisions and amend those. I want to specifically ask you about the treatment provision option that is provided and what kinds of resources are being looked at, particularly within the department that you are responsible for, both in terms of what will aid prosecutors in providing that option, why you actually looked at putting the discretion in the hands of prosecutors instead of judges, and what kind of options will be available.
You are undoubtedly aware of those individuals who are seeking the treatment options. In particular you would be aware within your riding of the overwhelming representation of Indigenous peoples and those vulnerable to the impact of mandatory minimum penalties. What kinds of options are being made available? What kinds of changes would you be interested in seeing, if at all, to those sentencing regimes to make the treatment options more available to those who will not be impacted or deterred by mandatory minimum penalties?
Mr. Goodale: Senator Pate, you raise a very important set of questions. I would like to suggest that there will be Justice Department experts at the table in the second hour of the hearings today. I think it might be more valuable if I deferred the analysis of those questions to the experts from the Justice Department who can speak more knowledgeably in response.
Senator Pate: With respect to section 29 of the Corrections and Conditional Release Act, which is the provision that allows for treatment for individuals already in custody, for those who are jailed for this, will there be specific provisions or resources put in place to ensure exchange service agreements will allow for those kinds of treatment options?
Mr. Goodale: I am always working at the significant challenge of more resources for the parts of the criminal justice system that I have responsibility for. We made some progress over the course of the last couple of years. We have more distance to go. Where those alternative approaches are tested and demonstrate a higher level of effectiveness and positive outcomes, that is certainly an area that the government is anxious to pursue.
Senator Boniface: I would like to focus on a question around funding for police. Particularly I am interested in whether you have specifically earmarked funding for First Nations police services.
I know some of the money is going to the province and the province will distribute as they deem appropriate, but, as you would know very well, with the 52-48 split between federal and provincial funding I want to be assured that the First Nations police services will not be lost in that federal-provincial shuffle as it takes place.
Mr. Goodale: This is an area that is being negotiated, quite literally as we speak, between the Government of Canada and the provinces. You may also have noticed a few weeks ago that I announced a new improvement in the funding level for the First Nations Policing Program for the 450 communities where this program currently exists across the country. Over the next five years that money will make a very substantial difference in the number of officers, in the salaries for officers, and in the security and safety of those officers as they go about the work that they are asked to do.
As I have stated on a number of occasions, and I think virtually every provincial minister has reinforced, our goal is to ensure that policing services in indigenous communities across the country are to the same standard, the same quality, and with the same resources as would exist anywhere else in the country. A discrepancy cannot be justified.
Senator Boniface: Thank you for the announcement as well because I know this area fairly well in terms of what they have struggled with. I want to be assured as they start coming up to that equal level in terms of resourcing and not in terms of service delivery. I think they do the best job they can do. It’s important to understand that those officers, like everybody else, end up in court being questioned on how they do. They need to have the same level of training.
It’s a bigger climb in some ways, so I want to be reassured that they don’t get lost in the exchange that take place on such an important piece of legislation for the safety of the officers who are out there but also for the safety of the communities.
Mr. Goodale: That is a very powerful reminder, senator, and I thank you for that.
The Chair: On that, minister, perhaps I can propose a question at this stage before I adjourn the meeting for you to leave and keep your officers with us, what kind of consultation did you have with the representatives of the Aboriginal community before you came forward with that bill?
Mr. Goodale: Having checked on the detail of it, the fundamental consultation was conducted by the task force chaired by former Minister McClellan in preparing the whole plan with respect to the approach to cannabis.
As well, there was additional outreach by my department. Ms. Thompson, can you possibly mention the groups that we were in touch with?
Ms. Thompson: A lot of the engagement is being coordinated through Health Canada. As you all know, Justice, Health and Public Safety are working very closely on initiatives around the legalization of cannabis. Public Safety has outreached and is engaging with FNCPA, First Nations Chiefs of Police Association, with the Indigenous and impaired driving committees of the Canadian Association of Chiefs of Police and with CPG, the police governance boards.
The Chair: Mr. Minister, I remind you that you have committed to provide additional information in answers to Senator Boisvenu’s questions in relation to the number of officers that would be available 24 hours in the various positions they hold across the country, and, of course, the other information that you have committed to provide the committee with.
We are thankful that you will be making those figures and reports available to us.
Mr. Goodale: We will deal with that as rapidly as we can, Mr. Chair.
The Chair: Of course, many members around the table have additional questions. I have a list of four other senators who wanted to be on the second round.
Thank you for making yourself available. We will see you next week in the house for further discussion in relation to that.
The Chair: Honourable senators, we will continue our session this morning with the officers of the Department of Public Safety. I want to reintroduce some of them to you that we have heard from already this morning.
Now we welcome Kathy Thompson, Assistant Deputy Minister, Community Safety and Countering Crime Branch, Kevin Brosseau, Acting Commissioner of the Royal Canadian Mounted Police, and Rachel Huggins, Manager, Policy and Development, Serious and Organized Crime Strategies Division, Community Safety and Countering Crime Branch.
We are also joined by Mr. Greg Yost, Counsel, Criminal Law Policy Section, Policy Sector, whom we heard from last night with the minister, and he is
Honourable senators, I still have a list of senators that I will follow.
I would like to invite Senator Dupuis to continue the discussion with the witnesses.
Senator Dupuis: My question goes to the RCMP representative. Thank you for joining us, Mr. Brosseau. I am interested in the pilot project on random tests. Do you have any data or have you paid any particular attention to racial profiling? You probably know that racial profiling is a concept that has been recognized by the Supreme Court as part of Canadian law. So it is a legal concept that is already established. Furthermore, the Ottawa police conducted a project on racial profiling. In choosing random highway tests, have you looked at the types of tests to conduct, for example, when road blocks are announced in advance rather than random tests, which would bring with them a greater possibility of racial profiling, as experience shows? What do you foresee in the pilot project? Do you intend to gather data on the issue if Bill C-46 is passed?
Kevin Brosseau, Acting Commissioner, Royal Canadian Mounted Police: Good morning. I will be answering in English, because I cannot always find the right words.
Senator Dupuis: No problem.
Mr. Brosseau: First, we definitely have considered it, but currently we will not collect race-based data with respect to police checks with the RCMP.
That has been a long discussion because we believe that that may give rise to even more questions and subjectivity of the police officer on the ground or at the roadside to determine or guess from a perspective of race.
What I can say is that, just like with all of our discretionary exercises of authority, whether it be on the roadside, the ability to arrest, whom to check or address, our police officers are governed, first, by the Charter of Rights and Freedoms and, second, by a bias-free policing policy internal to the force that drives our training and standard operating procedures.
Those say, first and foremost, that you need an articulable reason to talk to or check on someone. And second, your actions have to be governed by the Charter, which ensures that people have to be treated equally and not disparagingly, focused on race or otherwise.
All of those considerations are what, in fact, drive the manner in which we will interact with mandatory roadside testing for alcohol.
As you know, we already do roadside stops where we interact with people during the holiday season through road check campaigns where thousands of vehicles are checked. But it points to and recognizes, of course, certain communities where that could be an unforeseen consequence of the manner in which we train, the judgment decisions that are being made and the level of supervision and oversight throughout the organization. It ensures that profiling does not occur and that particular communities are not targeted, consciously or unconsciously, so that equal application of the law is, in fact, how we will govern ourselves.
Senator Dupuis: I have an additional question. I fully understand that what you are telling me should happen, in theory. In practice, this is not what we see on the ground. I am not saying that all police forces engage in racial profiling, absolutely not. We are aware of that. We know that officers receive training. If you intend on setting up random roadside checks, what will change in the training, evaluation, and monitoring of front-line people, police officers, that is, to ensure that what we observe — possibly involving a minority of officers — does not become a wider approach of random checks, that happens to be legally justified?
Mr. Brosseau: That’s a very good point. I will review the ongoing training with respect to this issue to ensure that those points are reinforced.
Starting at our training academy in Regina and all through those aspects with respect to ensuring Charter compliance in particular so that services are being delivered properly and not disproportionately through racial profiling or otherwise, I can say today they are in fact happening.
It’s a point I will take back to my organization to ensure, whether it’s an attitude or an unconscious bias at play, that is addressed explicitly in our training curriculum associated with this provision in particular.
The Chair: Maybe you could provide us with examples of the manual or the instructions that are given to the officers in training in relation to racial profiling. I think that would be helpful for all the members around the table.
Senator Dupuis: This includes any material to discuss the systemic aspect of discrimination. I am not only talking about officers who demonstrate prejudice in performing their duties. We must also be sure to apply sanctions when there is non-compliance in that aspect.
Senator Boisvenu: I have some questions for our guests. Ms. Thompson, if I understand correctly, the number of accidents caused by impaired driving due to marijuana use has decreased in Colorado. Is this true?
Ms. Thompson: Allow me to clarify. I was trying to say that it is a bit hard to obtain data and interpret it. What we are seeing in Colorado — and we saw it in Washington too — is that the number of fatal accidents increased by approximately 30 per cent. There are also reports from Colorado on the number of infractions committed…
Senator Boisvenu: I am talking strictly about road accidents causing death.
Ms. Thompson: The first part of my answer is yes. In fact, according to the data, there was an increase…
Senator Boisvenu: A very significant one.
Ms. Thompson: … according to them, of approximately 30 per cent.
Senator Boisvenu: Mr. Brosseau, last week, a high-ranking official from the Service de police de la Ville de Montréal (SPVM) told Quebec media that organized crime is catching up with the legalization of marijuana. According to Colorado data, organized crime has not disappeared from the marijuana scene.
We know that Liberal government’s premise for legalizing marijuana is to remove organized crime from the market. However, as we have seen recently in Quebec, of the 84 licensed marijuana growers, 35 of them have investments in tax havens, which boils down to illegal money. Police chiefs across Canada agree that is it utopian to believe that legalization will decriminalize the marijuana market and remove organized crime from it. Are you one of the only police chiefs in Quebec or Canada to state the contrary, that legalizing marijuana will remove organized crime from the production and distribution of marijuana?
Mr. Brosseau: Given the involvement of organized crime in the illicit cannabis market, we do not expect the legislation will eliminate the presence of organized crime in the cannabis market. It will reduce it but it will not eliminate it.
To your question, I have not surveyed police chiefs around the country to see where they stand on that, but I have certainly heard those statements being made.
It is important to know from my perspective that certainly illicit markets and organized crime are constantly evolving, frankly one step ahead, seemingly, at times. It’s difficult and too early to determine or predict what the eventual role of organized crime will be in the marijuana or cannabis market once it becomes legalized.
Senator Boisvenu: Let me turn to you again, Mr. Brosseau, because you are on the ground and you can see what is happening with organized crime. It would have been logical to first decriminalize marijuana to give provinces and police forces the time to adapt, and then to legalize it. This would have ensured that the provinces and police forces have all the necessary tools and training at their disposal to make this major change in Canada. Do you not believe that we should have gone forward in two steps? First, we decriminalize marijuana so that young people are not penalized for life with criminal records, which could clear the bottleneck of all those cases from our courts and, then, second, we legalize marijuana.
Mr. Brosseau: The question from a process perspective and the decision to decriminalize or legalize first are best left to the minister and the government. Certainly, we are in the process and will be ready to the extent we can, given the amount of time we have to prepare.
Would additional time be beneficial? More time is always beneficial to provide police time to train and plan. That’s what we do. Given the amount of time we have, we will be prepared with the resources we have to be able to respond.
Senator McIntyre: Mr. Brosseau, will police forces across the country be ready to apply the new impaired driving regime? More specifically, will they have received the necessary training, and will they have access to the equipment to test for drugs? Please explain.
Mr. Brosseau: It’s important, first of all, to remember that impaired by drugs is already an offence and it’s being enforced and prosecuted today.
We have certainly stepped up training significantly over the past few months. We have already rolled out a “drugs that impair” course, which is part of the standard field sobriety training. That is being rolled out, delivered and available, importantly, online. That same training is available to police officers no matter whether they are with the RCMP or whatever police service they belong to. That is really important. It is important that the training be relatively universal and clear.
Another part that I focus on as well is that the proactive engagement and prevention piece is very important so that police are in fact ready, given the messaging that is going out around engaging communities and prevention of impaired driving rather than simply from an enforcement perspective.
With respect to the devices and the timing of the devices, I will defer to my colleague Ms. Thompson, who will be able to tell you that.
Ms. Thompson: I will make a couple of points with respect to training and devices. As Deputy Commissioner Brosseau said, the first part of drugs that impair has rolled out. It was pilot tested in Halifax before Christmas.
We are coordinating RCMP and Public Safety very closely with provincial and territorial colleagues to ensure that we coordinate and roll out consistent training and make it available to police colleges and academies. That’s the first part. We are also partnering with CPKN, the Canadian Police Knowledge Network, which is very professional at rolling out online training. We are using the train the trainer approach so there is consistent training across the country.
We are also working together with our counterparts in provinces and territories with their trainers to put together some training modules on Bill C-45 and Bill C-46 and the new offences. They will be available. If a province or a police college wants to develop their own, they can. We’re trying to have national consistency, coordinated efforts and a reduction in duplication and overlap.
That is happening across the country with respect to the training. That is on the training for the SFSTs. There will also be training for those that have already trained in SFST as a refresher. They are already trained on alcohol impairment. Now we need to get them trained up with respect to drug impairment.
The minister talked about our targets for training. The idea is to get this training to go back, retrain those who are already SFST trained and train new officers to build up the capacity. The idea is to eventually build these into the basic core training so that officers, hopefully within five years, will get this as part of their basic training.
With respect to the devices, the standards for the oral screening devices to be approved for use in Canada were developed by the Canadian Society of Forensic Science, the Drugs and Driving Committee and published on November 1.
Following that, there was an invitation to manufacturers to submit their devices for a paper review, and that has happened. The devices will now be tested by National Research Council in a laboratory. Those results will be fed back to the DDC. The idea is that once the DDC feels that the devices meet the standards they have developed, there will be a recommendation to the Attorney General and the Attorney General, through ministerial order, will identify which devices are suitable for use in Canada and meet Canadian standards that have been developed.
Once that happens, Public Safety and RCMP will work with whatever manufactured devices have been approved to have a regional and national training with those manufacturers for law enforcement across the country. We hope to have those devices available in late spring.
The Chair: Late spring?
Ms. Thompson: Correct.
Senator McIntyre: I have a question for Mr. Yost. I would like to draw your attention to section 320 of the act. It calls for less disclosure and less need for expert witnesses.
Will the changes proposed in those sections make trials faster or will they increase delays, at least in the short term, as the constitutionality of the new rules most likely will be challenged in the courts?
Greg Yost, Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice: It is our anticipation that this will speed up trials a good deal. Perhaps it is not so much the trials themselves as the pre-trial applications for further disclosure. There have been ongoing disclosure wars ever since the St-Onge decision. Most have been favourable to the government; some haven’t been.
The Alcohol Test Committee put out a position paper on what was required scientifically to be satisfied that a particular test had produced reliable results. The items listed in the disclosure are the ones that the Alcohol Test Committee says are appropriate for a scientific evaluation as to whether this was a proper test.
Instead of just going on a fishing expedition and throwing anything they can think of at the court, we expect that will bring an end to it, particularly when we have established conclusive proof of BAC and they will have to explain in writing why this is relevant. If the necessary conditions of an air blank test, a calibration check and two tests 15 minutes apart are in substantial agreement and have been satisfied, we find it difficult to see. Defence counsel have a great deal of imagination. They will probably take a run at it, but we expect it will in due course simplify the prosecution a great deal.
Senator McIntyre: I can see the concerns of defence counsel regarding the limitation of the disclosure required in impaired driving cases and the evidence required to establish guilt in such cases. Can you explain what the changes will mean in practical terms?
Mr. Yost: In practical terms, the changes will mean that the provincial governors general will decide what they will disclose. It’s made quite clear that this does not affect any other disclosure. They will continue to get all the police reports and such, but they will not have access to maintenance records from 15 years ago. They will not get access, we would imagine, to the original invoices to purchase a machine.
I have seen applications for those. I have seen lists of over 150 items that have been fought. Now these get fought out. They take forever in the courts. Unfortunately, these are pre-trial issues and they don’t become binding on one or the other. We are attempting to get a standard across the country which, on the basis of the advice of the Alcohol Test Committee, is all that is required.
After the amendments in 2008 which made it possible to file the printout from the approved instruments, the government delisted all of the instruments, which would not provide printouts, that showed the results of all of the tests when they were done, and all of that stuff. Put those two together and we believe that the accuracy of the test will be required.
Senator Pratte: My question is regarding subsection 320.28(2) on the evaluation and samples of blood and drugs. I am wondering why the act would give discretion to the peace officer to either require the person to submit to the drug evaluation by the drug recognition expert or require a blood sample.
The reason I am wondering this is twofold. First, if the person goes to drug evaluation by the expert, the expert cannot send a person to have a blood sample taken before the evaluation. That person is the expert but cannot require the driver to have a blood sample taken before the test is completed. However the police officer who is not an expert can. There seems to be a discrepancy here, which looks somewhat strange to me. The simple police officer can say, “Okay, driver, go and get a blood test,” after having a roadside test and having a suspicion, but the expert cannot do the same thing.
I alluded to the second reason yesterday with the minister. Since the police officer can require both the blood sample and sending the driver to the drug recognition expert, it seems to open the door to a contradiction between both the results, which could be problematic in front of a court.
I am wondering why the option is there. Why not simply provide that the police officer sends the driver to the drug recognition expert or decide to have the blood sample taken?
Mr. Yost: First of all, there are two different offences. There is impaired by a drug and there is being over a blood drug concentration. There are a certain number of drugs for which a blood drug concentration will be prescribed by regulation. That draft regulation is already out there.
The police officer at the side of the road with a drugs roadside screener could have a suspicion. He could have pretty good evidence that the person was impaired. The person could be smelling of marijuana, could test positive for marijuana and all the rest of it. If the guy can’t walk a straight line or he can’t do all kinds of things, the police officer could be convinced that he committed an impaired driving offence and is over the limit on the amount of THC allowed in blood. In that circumstance I would expect the officer to proceed directly to a blood sample.
However, there are a lot of impairing drugs out there for which there is not a blood drug concentration. There may be situations in which the police officer says, “There seems to be a lot more going on here than I am trained to figure out at the side of the road, so I’m also going to send you to the DRE.”
By going through those steps he may decide that the guy is under the influence of a central nervous system depressant, for example. There are seven families. He will conclude by getting a bodily sample. If blood has already been taken, he doesn’t need to do that. He will get the results. He makes his call.
It is not necessarily contradictory to say that a person is underneath the blood drug concentration limit and is still impaired. We have had cases with alcohol where a person is under 0.8 per cent but doesn’t handle alcohol very well. They can be inexperienced, but we have had convictions for people who were under 0.8. It’s not that easy. These days virtually every province has a 0.5 limit. I suspect often the police officers prefer to proceed administratively by taking their licence away because they are not quite at 0.8. We have had convictions like that. Those are not necessarily contradictory.
Senator Pratte: Just to surf a little bit on your answer, because of the scientific uncertainty as to these thresholds of THC concentration, is the act on this point more vulnerable to challenges?
Again, as I said yesterday, the preamble says that clearly the goal is to limit or to reduce impaired driving as far as possible. Since there is scientific uncertainty as to the link between those thresholds of 2 nanograms and 5 nanograms and impaired driving, is the act vulnerable to a challenge where a driver could say, “Well, yes, I may be at 6 nanograms but you cannot demonstrate scientifically that I was impaired. I’ve been consuming marijuana for 10 years for medical reasons and you simply cannot demonstrate that I was impaired even though my level is 6 or 3 nanograms.”
Mr. Yost: We certainly expect challenges on just about everything. That’s the way the situation is these days. The science with respect to drugs is not now and probably never will be as good as the science with alcohol because drugs are consumed in different ways. THC, for example, is absorbed more into fatty tissue than into the blood. There are all of these problems.
Nevertheless, the government has received from the Drugs and Driving Committee its report on drugs. If you look at the THC section, it will start by saying that marijuana is an impairing drug. You do not take THC. People do not smoke joints to be better drivers; they do it to get high.
You have to have suspicion of a drug in the body, that there is something there. Before you can proceed to the blood test, you need reasonable grounds to believe that an offence has been committed.
While we expect there will be challenges, this is definitely proceeding down a new path. It is the best tool that technology has given us so far. The levels that are being set are basically in accordance with levels that have been set around the world by those countries that have established blood drug concentrations. It is 2 nanograms in the United Kingdom and 5 nanograms in Colorado and other places. The government’s decision on a precautionary basis is to have the 2 to 5 nanograms level to send the message that you don’t mix marijuana and driving. At 5 and above, the government is satisfied this person has used a lot and is committing a serious offence.
That’s the background on the science, as best I know it. You may be hearing from the Drugs and Driving Committee that know it a lot better than I do.
The Chair: Thank you, Mr. Yost. I think your statement raises further questions, but it’s not my position to ask them at this stage.
Senator Carignan: My question is about resources. I’d like to go back to the minutes of the meeting of the International Association of Chiefs of Police. They noted that in 2015, there were 1,400 drug recognition expert assessments, and in 2016, there were approximately 1,800. There are 500 drug recognition experts, and so we are talking about three to four assessments per year per expert. That is not a large volume. However, if we want to double the number of experts, that will take us to 1,000, and it is reasonable to assume that there will be more assessments and more laboratory tests. What have you planned regarding resources for laboratory tests, analyses and medical personnel?
The bill says that a qualified physician may take a blood sample. If we increase the volume and do blood tests, we need physicians, and we have to find them. This means that the individual has to be taken to the hospital, and very quickly. I also read a few studies indicating that blood THC levels drop dramatically over one hour. So, first we must do these blood tests as quickly as possible if we are to conserve the evidence. Secondly, we must also avoid illegal detention, that is to say that we must not detain the person over a long period of time; an hour or an hour and 15 minutes according to the jurisprudence. There are two reasons for this: first, there are the Charter provisions on illegal detention, and all of this must be done within an hour or an hour and 20 minutes, and the evidence has to be conserved because the blood THC level goes down very quickly. What have you planned to increase laboratory resources and quicker access to qualified doctors given the increase in the volume?
Ms. Thompson: I thank you for that question, which in fact contains several. As for laboratory workers, we have a plan. We are still finalizing the process, but I can say that this will depend a great deal on the resources allocated to the RCMP to ensure that there are laboratory workers available to police services throughout Canada, at least in the beginning. We are also thinking about whether the private sector could perhaps play a role in this in the years to come. We will have a better idea of the figures.
As for medical personnel, yes, it is true that under the former system, a qualified doctor had to be involved. However, other experts like phlebotomists would now be allowed to take blood samples. That is a provision in the bill which will greatly help alleviate the pressures you referred to. We hear from our colleagues in the provinces and territories that small communities in some regions are also considering some very innovative solutions, because, as you said, there is pressure. The bill would give them a little flexibility to call on people who are closer and who could do blood tests.
Senator Carignan: The minister said that the objective was to double the number of drug recognition experts. I spoke to police officers. There is one drug recognition expert in a municipality of 45,000 residents. In Nebraska, for instance, which is next to Colorado, an equivalent municipality may have five or six such experts. Cannabis is not legal there yet. Do you really believe that the simple fact of doubling the number of experts will be enough? We tend to talk about remote areas and the fact that it will take time because of distance, and that is true, but the problem also arises in cities and towns because of traffic congestion. You have to move the person, and if there is a traffic jam, you can lose 30 minutes even if the distance is short. In order to not be considered arbitrary under the Charter, there is a time limit on detention. I think we are going to lose a lot of cases if we simply double the number of drug recognition experts.
Ms. Thompson: A few points have been raised that I’d like to address again, such as the matter of prevention, raised by Mr. Brosseau. Prevention will be very important, and that is why we talked about communication and the awareness campaign we are conducting at this time. Prevention is very important. You’re quite right; we don’t want everyone caught in traffic jams with cases. So, we will try to focus on prevention as much as possible, and we have. We did that with alcohol. It took several years. We know it’s possible to do the same for drugs, and cannabis in particular.
As for resources, as the minister mentioned, we work very closely, almost on a daily basis, with our provincial and territorial colleagues to determine the capabilities and the gaps. We want to fill those gaps and ensure that we have good capability throughout Canada, thanks to the funds allocated to this. These funds will make it possible to increase the number of drug recognition experts and the number of police officers trained to administer the standardized sobriety test. We are deciding where these officers will be assigned so that we are well equipped everywhere in Canada, and we are putting the emphasis on…
Small urban and rural and indigenous communities.
It’s important that there be capability in those locations as well. We work with them to see where we can make the best investments, but as Mr. Brosseau said earlier, there is already an offence in the Criminal Code. This was criminalized in 1925. And so the expertise, experience and resources are already there. Some of our colleagues in the provinces and territories have said that they also intend to invest. I don’t think anyone will depend entirely on the federal investments. Our colleagues are also examining the possibility of making investments at the provincial and territorial levels. We expect this training to be incorporated into the curriculum; an officer will be given this training in college. That said, we have to backtrack and retrain those who were already trained, and we have to train other officers quickly. Over time, we expect that this will be a part of the basic curriculum.
Senator Pate: All of you have heard my questions. Mr. Yost, yesterday you heard my questions of the Minister of Justice. You also heard my questions of the Minister for Public Safety.
I want to particularly focus on section 320.23. How do you see the objectives of the Act being furthered by the restrictive application of this provision to only certain individuals? Why do you see this as something that should focus on the consent of the prosecutor as opposed to the judge? What impact do you see this as having on vulnerable communities, such as Indigenous communities, those who are indigent and might not be able to access treatment?
Mr. Yost: I will begin with the rules, if I can put it that way, that are set out in section 320.23. It’s actually based upon the existing subsection 720(2), court-supervised programs:
The court may, with the consent of the Attorney General and the offender and after considering the interests of justice and of any victim of the offence, delay sentencing to enable the offender to attend a treatment program approved by the province . . . .
All that we’re really doing here is adapting that to the impaired driving field by insisting that there be a prohibition while the person is taking this treatment so that he isn’t driving around and we don’t know if it’s going to work.
Of course, the other thing is that we are establishing that it’s not actually going to be a discharge if the person reoffends. There will be a previous conviction and the person will be subject to the higher penalty. That is what is being done here.
What we have currently, the so-called “curative discharge provision,” is rather unusual in that it comes into force if a province asks for it. It has been there since 1985, and thus far Ontario, British Columbia, and Newfoundland and Labrador, and Quebec have not asked for it to be proclaimed. More than 70 per cent of the Canadian population doesn’t have access to it at this moment.
Discussing this with the provinces that have it, they had two serious concerns. One was that it was a discharge and it wasn’t a conviction. The other one was that there was no control.
They said, sort of colloquially, that it’s a rich man’s defence. A person who has a good lawyer and says, “I’ve been accepted into the Betty Ford clinic for 60 days could take advantage of it.” We want control over the kind of program. My understanding is that every province already has treatment programs for alcohol addiction and drug addiction.
That’s what is there. I can’t say, however, that I have any idea what impact it will have on vulnerable communities. Since it’s no longer a restrictive sort of thing without any structure around it, I would like to think it would be made available to those who need it; but it’s a decision of the provinces as to what kind of programs they will offer and the entry criteria, et cetera. I can’t answer that question directly.
Senator Pate: In light of the objectives, as both ministers have articulated, to eliminate or as best as possible to reduce the harms of impaired driving, and given that we know the incidence of individuals with significant treatment requirements in those areas, was there any discussion that could be made available to us or research done on why you didn’t look at broadening those provisions if we are really trying to prevent this situation in addition to the public education issues?
Mr. Yost: I’m actually not aware of any research that has been done on the effectiveness of the curative discharge provision that exists today in reducing recidivism.
This is intended to foster treatment before the person gets around to injuring or killing somebody, but I don’t know what the result is actually going to be in the future. Perhaps it should be part of our three-year report: another item to add to the list of things we should be reporting on when we come back before Parliament, assuming the bill gets passed.
Senator Eaton: I have been listening to your testimony for two days. We heard a lot of testimony because cannabis was a big part of the last budget bill.
I have a very simple question. We talk about the lack of or the need for training twice as many certified drug recognition experts amd infusing federal-provincial laws. Science seems to be running behind the legislation to catch up with the legislation. There is a lack of random testing for things like truck drivers and pilots, yet we have somebody like FETCO that represents these people being very worried about that.
Why have you imposed the arbitrary date of July 1 when this all must be in place like a neat package when it’s all going to roll out? I find extraordinary that you can’t push this back for another year to make sure that you have the 3,000 drug experts, that you have thought about the random testing and that you have given science a little more time to catch up. Is there a real reason why it has to be done by July 1?
Ms. Thompson: It’s really a decision that the government has made with respect to the rollout. Deputy Commissioner Brosseau spoke to the readiness of law enforcement. We are doing everything we can to ensure that we will be ready.
Senator Eaton: Madam Thompson, we have heard nothing from law enforcement except how much more they still have to do. We have heard nothing from municipalities that says they are ready.
If you tell me this is an arbitrary decision, I accept that; but to say that everybody says they are ready when everybody comes before us in various panels and says they are not ready, I find stunning. I’m sorry.
Ms. Thompson: I think there is a lot of work that is underway right now to make sure that we will be as ready as possible for the summer timelines that have been given for Royal Assent of the regulations in the Act.
A lot of it is underway now. I think the minister alluded to discussions that are happening. I mentioned that we are literally in communications daily with stakeholders. Some of the training has already rolled out. A lot more of the training is going to roll out very shortly.
We’re working with a volunteer committee of the DDC, but they’re working very hard to have those devices reviewed and forwarded to the Attorney General to be approved this spring. There is a lot of work currently underway and there is a lot of activity in the system. There is no doubt.
Senator Eaton: I am sure you’re all working hard, but the date seems very arbitrary.
Senator Gold: I have a question for Mr. Yost. A large number of Canadians are able to use cannabis for medical reasons and within that category many are using it for bona fide medical reason; perhaps not all, but many are.
Have you given some thought to the dilemma that it poses for a user who uses it regularly for medical reasons, which is her or his constitutional right? Even if they take CBDs mostly, there are some THCs to help the CBDs work. It will stay in their system for quite a long time. They are faced with a dilemma. They may not have consumed for a few hours but because they’re habitual users it may be in their systems. They may not be impaired either because they’re habitual users. They have the terrible choice of either not being able to take their medication or not being able to drive a car.
Have you considered this to be a problem and, if so, what solutions have you envisaged to accommodate the privilege of driving with the right to take your medication?
Mr. Yost: This has been a subject of a great deal of consideration. Part of the problem is that the authorization to use marijuana is very different from the usual prescription. The doctor doesn’t say to smoke three joints of 7.3 per cent THC with meals per day; you can have 90 of them, which is for one month and we’ll talk about it later.
It is now and always has been a crime to be driving while impaired by a drug whether it is illicit, prescribed or over the counter. The issue is whether you are impaired.
On the question of the so-called body burden, the level of a THC that is in a person’s blood who is a regular user, the scientists have me completely confused about absorption into the body fat, then release for some reasons I don't understand occasionally into the blood and where your level will be.
I can only say that the legislation is based upon a suspicion of a drug in the body. The officer is going to have to have that suspicion before the officer can even ask for a sample of an oral fluid.
If you have taken your THC in a different way than smoking it, it is very interesting that how much you will have in your oral fluid doesn’t correlate at all with how much it is in your blood. This is another complication in trying to figure this out.
If the police officer has developed some reasons to believe that this person may have a drug in his body and the person turns out to be positive. That’s where you get to another one of our problems: the lack of a correlation between concentration in the oral fluid and concentration in the blood. If the officer has reasonable grounds to believe that an offence has been committed, that’s when he can go to the blood test. That’s when we will find out, after a laboratory analysis, whether the person is above 2 or above 5 and a charge will be laid.
It’s not a perfect system but it’s difficult to figure how to work this out for people who have been using. That’s the situation right now on the roads, of course. People have marijuana in their systems. They have an authorization. They can still be charged with drug impaired driving.
The difference is the blood drug concentration. Our level of detection at the side of the road proposed by the DDC is 25 nanograms and the U.K. uses 10. We will have people who recently used a fair amount of cannabis, I believe, to get in at 25, but you might want to explore that with the Drugs and Driving Committee more than with me.
Senator Gold: My hypothesis was that people were not impaired but might still fail the test per se because they had 3 nanograms or something, under circumstances where they had the 3 nanograms because three hours before they ingested one way or the other their medication. By definition they are not impaired, but they broke the law because they are taking a prescribed medication.
I pose it as a dilemma. I appreciate your comment that it’s not easy to figure this one out, but I can only anticipate court challenges around these issues. I was curious as to what options you may have been considering and those that you might be able to share with us.
Mr. Yost: I would have, but this was a consideration that went into whether we would support random testing for drugs. Then you are likely to have somebody who is just pulled over for no bad driving or no nothing whatsoever. If they’re a medical user, they could be found to have it and the whole process would begin. It’s not like alcohol where the approved screening device gives a reliable reading of their blood alcohol concentration.
That was one of the factors that went into why not go with random drug testing and put it on the basis of reasonable suspicion followed by reasonable belief.
Senator Gold: If I understand that is a filter to eliminate some category of non-impaired medical users. Only those where there is a suspicion of impairment would have to take the saliva test and then perhaps the further test.
Mr. Yost: It’s a suspicion of a drug in the body. Maybe it wouldn’t be a good idea to have your medical marijuana in prominent display as you’re driving along because that might give you the suspicion that the person has it, but yes.
Senator Boniface: I will defer my question to a further panel.
Senator Boisvenu: I’d like to know if you can provide some specifics.
For instance, Mr. Brosseau and Ms. Thompson, can you tell us how many drug screening devices are available? How many trained screening officers are in place as we speak? How many RCMP posts will not have these devices by July 1? And finally, Ms. Thompson, what is the projected increase in the marijuana consumption-related mortality rate on our roads for the coming year? Since you are legalizing this substance, you must certainly already know the impact cannabis consumption will have on road accidents.
So those are the four things I’d like to know. Could you send us that information over the next few days?
Senator Dupuis: Ms. Thompson, I found what you said about the experience the government acquired by creating a standard for alcohol very interesting.
Do you have data on the projections or analyses you carried out on the implementation of a new drug-impaired driving standard, with references to the government analysis on the related data? If you have that type of data, we would like to have a look at it. Thank you.
Ms. Thompson: We do not have any analysis from Public Safety. However, we do have analyses done by the Canadian Society of Forensic Science Drugs and Driving Committee. It will be our pleasure to convey this document to the clerk of the committee.
The Chair: If there are no other questions, I will thank you, Ms. Thompson, Commissioner Brosseau, Ms. Huggins and Mr. Yost.
I bet that Mr. Yost will stay in the room sometime during the next hearings to be of help to us if there is any specific question.
Mr. Yost: I have heard an unfortunate rumour that I’m back for two hours of cross-examination next week.
The Chair: You will be most welcome.
Thank you very much for your contribution. We appreciate your co-operation. We look forward to receiving this additional information.
(The committee adjourned.)