THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Wednesday, February 7, 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 to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs, studying Bill C-46.
Welcome. Today, our committee is examining Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts.
It is our pleasure this afternoon to welcome François A. Daigle, Associate Deputy Minister.
Mr. Daigle, welcome.
Carole Morency, director general and senior general counsel with the Criminal Law Policy Section, Policy Sector, of the Department of Justice, is a regular witness of the committee. Welcome, Ms. Morency. Greg Yost, counsel with the Criminal Law Policy Section, Policy Sector, of the Department of Justice is with us. We had the pleasure of hearing from you last week, as well.
As honourable senators will remember, last week I had to adjourn the meeting because there was a vote called in the Senate Chamber, and we were in the process of having an opportunity to have an exchange on this bill with the representative of the Department of Justice, and it is my pleasure to open this session this afternoon.
Senator Boisvenu: Welcome to our witnesses. I understand that we have two hours with the witnesses, Mr. Chair.
The Chair: Yes.
Senator Boisvenu: My first question is for the three witnesses. Parliament has set the legal limit for consumption, which is 80 mg of alcohol per 100 ml of blood. Why is the new limit of two to five nanograms not in the legislation when this was done for alcohol?
Greg Yost, Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice: Bill C-46 proposes that these limits be established by regulation. This is done in other countries, as there are dozens of drugs around the world. So we have already set rates, and we expect there will be more in the future. Going back to Parliament every time we want to make a change would be difficult. Also, it is normal here in Canada, particularly with the Controlled Drugs and Substances Act. The schedule determining the rates is established by regulation. Amendments to the regulations can be made in the light of evolving science.
Senator Boisvenu: These limits are set out in their criminal codes in most states in the U.S. and in other countries. It was not determined by regulation.
Mr. Yost: England does it by regulation.
Senator Boisvenu: In the United States, it is in the legislation.
Several U.S. states have established levels. I admit that I have never checked whether they do it by regulation or whether they include it in their legislation. I do not know how they decided to proceed.
François A. Daigle, Associate Deputy Minister, Department of Justice: Whether in the Criminal Code or by regulation, the limits that will be established will have the same force of law. They will be applied when arrests are made. The science of alcohol levels is pretty fixed. These rates have been used for a long time. We have very specialized tools. With regard to drugs, especially THC, we have a scientific report that was used as a basis. In terms of these rates, the tools are not as specialized as science, which is constantly evolving. We rely on what is in place. Over time, we will learn more about these impaired driving rates. The regulations allow us to make changes as we become better informed.
Senator Boisvenu: It’s not unanimous with respect to marijuana. Will being in the regulations rather than the act make prosecution easier?
Mr. Daigle: It makes no difference. If the regulation sets a rate of two or five, this will be a rate for the offence. With respect to prosecutions, it will be the same thing whether the rate is set in the Criminal Code or in the regulations.
Senator Boisvenu: If science brings us to other conclusions, will you amend the regulations?
Mr. Daigle: We could amend the regulations. The Governor-in-Council may, in the light of science, ask the government to change the rate through the regulations.
Senator Boisvenu: The courts often use experts, including mental health experts. When a driver is stopped with a statutory rate arrives in court accompanied by two experts, this gives rise to disputes.
Mr. Daigle: It is a consequence of science and not a consequence of the fact that it is included in the regulations rather than in the Criminal Code. If the science is not accurate, there may be disputes. Ultimately, Bill C-46 proposes using strict levels of two and five nanograms per millilitre of blood. These rates will be taken into account for infractions.
Senator Boisvenu: Screening will be mandatory for alcohol and not for drugs. What is this logic based on? Is it because our police officers will be less prepared, less equipped, and that screening will be more “random” when they are better trained to screen for drinking and driving? I am trying to understand.
Mr. Daigle: Partly, yes.
Senator Boisvenu: On the one hand, we have mandatory testing and on the other, we don’t.
Mr. Daigle: I will ask Mr. Yost to explain the process of roadside arrests for alcohol and drugs, which are quite different.
Senator Boisvenu: I understand the process. According to the logic you have just expressed, it is because we are not equipped in the same way to detect one substance in relation to the other.
Mr. Daigle: We have two different tests and different tools. A breathalyzer, using the driver’s breath, can produce accurate results quickly. The proposed drug test, which takes a saliva sample, will detect whether or not drugs are present in minutes. This test is done at the roadside. Then, if the result is positive, there are different options. The person can be taken to the police station for a blood test, which will determine the level of THC or other drugs in the blood. So this is not a process that lends itself easily to arrest.
Senator Boisvenu: Do you think that can have an impact on driver behaviour, distinguishing between the two?
Mr. Daigle: I do not think so.
Senator Boisvenu: I am thinking of young people aged 18 and 19, especially in the summer, who are a little wilder.
Mr. Daigle: I think what young people will understand by looking at advertising campaigns today…
Senator Boisvenu: There are not many.
Mr. Daigle: There will be more advertising. They will become aware of the danger of driving while intoxicated. They will also understand that they could be screened and subjected to mandatory arrest at any time. So it will have a big impact on drivers who are used to driving after a few beers.
Senator Dupuis: Mr. Daigle, can you continue the explanation you had started to clarify for us? You had explained the first step for alcohol and drugs. We must go further. So, there is a second step in testing for drugs.
Mr. Daigle: It seems to me that it is worthwhile to understand the process for both tests.
Mr. Yost: With alcohol, we have an approved screening device that has been around for almost 40 years. We obtain a result that indicates certain rates. WARN indicates a blood alcohol level between 50 mg and 100 mg, which has consequences at the provincial level. FAIL indicates a blood alcohol level above 100 mg. It says 100 rather than 80 because it is very likely that the offending driver, when taken to the police station, will contact a lawyer, which will provide time for the alcohol level to decrease. This gives us some leeway. If the driver in question has failed the test, a breathalyzer test is requested. This device gives completely reliable results. We conduct two tests, which gives us conclusive results.
A saliva sample is taken for drugs. It’s only the presence at a certain level, the so-called cut-off levels, which is in the criteria set by the Drugs and Driving Committee. It is not known if the person’s blood alcohol concentration is indeed over the limit, namely, 25 mg for THC. In addition, there is no scientific possibility, even knowing the concentration in saliva, to know the concentration in the blood.
As for the roadside police officer, it will depend on the officer’s observations, if there are any doubts as to the person’s conduct, if the officer suspects that the person has used cannabis because of how his or her breath smells. If there is sufficient evidence to suspect that a person has been driving while impaired by THC after testing with a drug-testing device, the officer may request a blood test, and may also directly charge the driver with impaired driving.
In 2008, the drug recognition expert program was added. If such an expert is available — it is a matter of resources — the expert can be asked to evaluate the offending driver. The expert decides whether or not the person has been driving while under the influence of drugs. The drug recognition expert will make a decision at the end of the 12 steps. The last step is to take a bodily substance. Bill C-46 will facilitate blood screening, which is better than urine samples. The request can be made and, based on the results, the Crown Attorney will decide whether there is sufficient evidence to uphold the charge and go to trial. That is a summary of how we intend to proceed.
Senator Dupuis: Can you clarify the issue of reasonable grounds to suspect compared to reasonable grounds to believe?
Mr. Yost: Reasonable grounds to suspect are based on a number of factors. Police representatives know more about how to recognize at the roadside people who have been drinking. I attended a presentation of about a hundred slides on how to recognize the signs of cocaine use, its effects, and so on. Sometimes you can see it in the eyes, sometimes it’s something else. Currently, there are two ways to proceed: immediately file a complaint or file an application for a drug recognition expert. The bill provides the opportunity to request a blood test immediately if the officer is satisfied that a drug is present. Obviously, the courts decide whether the officer’s request is justified or not. The police officer must have fairly substantial evidence before requesting a blood test.
Senator Dupuis: Thank you. I will come back in the second round.
Senator Sinclair: I have a couple of questions, and if the chair wishes, I can go on second round with regard to the latter ones.
One has to do with the evaluating officer provision. It appears to be a new position created by this bill, in terms of the role of the evaluating officer and the authority given to an evaluating officer. I wonder if you can talk to us a bit about the question of the number of evaluating officers that are likely to be required and how many of those will likely be available for indigenous communities.
Mr. Yost: I’m afraid that I’m not the best person to answer to that. Minister Goodale was here and I believe I heard the number was that there are 550 now. The RCMP runs the DRE program. They would have up-to-date numbers as to how many there are and, of course, the minister was speaking of the intention, if I recall correctly, to double the numbers.
How they will be distributed and how many will be in indigenous communities is a matter that will be worked out presumably through Public Safety’s program to assist the public and police forces, including indigenous police forces, but I can’t predict that, I’m sorry.
Senator Sinclair: I want to talk a little bit about the issue of the plan to communicate the potential risks of driving while impaired by alcohol or a drug. I understand from the last presentation that was made by the ministers with us that there is a plan to roll out a media campaign to advise, particularly young people about the risks with the consumption of alcohol and drugs and combining that with driving.
I wonder if you have any information about the extent to which any of that effort relating to a media campaign or communications plan is going to be concentrated on communities in Northern Canada, particularly communities where there is a high concentration of indigenous youth or young people who are, as we know, ones likely to be seriously affected by the easier availability of cannabis.
Mr. Yost: Again, senator, I can’t answer that question. My only connection — and perhaps others have a different one — with the advertising campaigns is text is sent to us to make sure it is legally accurate. The messages, et cetera, are developed by communications experts. How they’re planning to spread it out, that’s an issue perhaps for Public Safety, but certainly not for me, I’m afraid.
Mr. Daigle: I think we can confirm that the minister said last week that Budget 2017 provided for $9.6 million in education and awareness and a further $36.4 million over the next five years for that.
We can go back and find out exactly how they’re planning to roll that out. I do know they are ensuring that they’re going to roll this out throughout the country and will pay particular attention to Canada’s North and indigenous communities to make sure those messages are out, but we can probably go back and provide something further on this.
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice: Just to reiterate, some of the remarks made yesterday in the Senate by the ministers spoke very much to the concerns you’ve highlighted, which is the need for a significant amount of education for young persons and those who young persons will naturally seek out for assistance in this type of area -- parents, school, teachers, coaches -- all part of the broader education plan.
I believe when he was here last week, Minister Goodale spoke specifically to some of the work they’re doing now through their funding to roll out education and public awareness generally about the combined use of drugs and driving, and the Don’t Drive High public campaign on TV right now.
We can certainly undertake to provide some of the news releases on that. I believe Minister Goodale also referenced the additional funding announcement that he recently made about First Nations policing. I think his comments were also that he continues to be in discussion with his provincial-territorial counterparts at the official level in terms of how to roll that money out in a way that meets local needs as well.
Senator Sinclair: I appreciate that, and I assure you that I’m well aware of the fact there’s a campaign going on. But it seems to be targeted towards Southern populations. Given the fact that Northern communities still rely a lot upon satellite TV reception from the United States, and in addition require that communication be done in indigenous languages, particularly so they can get advice and direction from the adults in the community, many of whom are still unilingual speakers in their traditional languages: I wonder if you might also look into the question of how much effort is going to be made to target the media campaign towards those communities, recognizing those unique issues at play.
The Chair: If I may add some factual information, yesterday the minister spoke about a $46 million campaign, but never mentioned that it’s over five years. So one would expect that at the beginning there would be a massive information spread, but the way that the $46 million has been, in fact, divided is for a five-year period. I just want to put that on the table for any one of you to think about.
Senator Pratte: Among the concerns is the difficulty of informing cannabis consumers how to meet the THC concentration standards before driving a car. So the 2, 2.5, 5 nanogram levels will be clear, but the way to determine if someone is under these thresholds is much less clear. For alcohol, people who have a glass of wine every night know that if they do not drink a glass of wine on Friday night, they can drive their cars on Monday morning without any problem. People who have a joint regularly, but who decide to stop on Friday night, aren’t certain to be under the two nanograms on Monday morning. It’s quite possible that they will exceed two nanograms. It’s not clear. Public health authorities are currently unable to tell consumers how to behave to meet the thresholds. This makes it difficult for consumers and for public health actors. We can tell people that they can drink a maximum amount of wine based on certain data, but this is not the case for cannabis.
I was wondering about the possible legal impact of this problem. In a court challenge, could this uncertainty have an impact? Could consumers say they behaved perfectly reasonably by having their last joint on Friday night, and get stopped by a police officer on Tuesday afternoon, be at three nanograms? They will then end up with criminal records, and their professional careers ruined because of this perfectly arbitrary standard.
Mr. Daigle: I will ask my colleagues to respond, but as the ministers said last week and again yesterday, the best way is to make sure you do not drive if you have used cannabis. It is also known that the device that will be used to take a saliva sample can detect the presence of THC six to eight hours after consumption. It is clear that we will never be able to say that, after two joints and three hours, you will be okay, that you can take the chance, and that there will be no problem.
Ultimately, Bill C-46 and the regulations provide for determining the level. People will understand that two nanograms means that it is a precautionary approach, that cannabis will cause impairment, that precautions must be taken and that if the level is more than two nanograms, a person could be found guilty and be liable to a summary offence.
Ms. Morency: I would add that Dr. Douglas Beirness testified before the Justice Committee. He is with the Canadian Centre on Substance Use and Addiction. He spoke to the same issue on September 19:
I dread the day somebody comes to me and says, “How much cannabis can I smoke and still drive”, because the only answer to that question is none. I don’t believe that there’s any amount of cannabis that you can smoke, and at some point not be above two. Because the level of THC rises so quickly, you will rise above two at some point, and you will come back down at some point, too. There really is no amount of cannabis that we can recommend that a person could smoke and still be below the limit and be unimpaired.
I believe the committee may be hearing from him or other experts well positioned to speak to that. It is a challenge, and I guess it’s a choice. People can consume, but they can also make other arrangements and not drive.
Senator Pratte: I want to make sure I understand what you are saying: when the advertising says not to drive if you’re high, people who want to drive should never use cannabis. It’s not just not having a joint two days or two hours before. The message that the legislation and the government are sending is that people who want to drive a car should never use cannabis.
Mr. Daigle: It is not because someone had a joint that next week, that person will still be impaired. As I said, the test will detect the presence of THC six to eight hours after consumption. The police officer must first stop the car and have reason to believe that the driver has been driving while impaired. If the person thinks that he or she is really not impaired, and hasn’t smoked for two days, the police will not go there.
This is not to say that you can never drive a car if you have smoked a joint, but rather that if you want to smoke cannabis, think twice before driving. It is known that the tool used to detect THC in saliva can detect it up to eight hours after consumption.
Senator Carignan: My question is along the same lines. There is the offence of impaired driving and the offence of driving with THC. The minister determines the THC level by regulation. If the minister changes, the offence may change, which is strange.
Mr. Daigle: It is not the minister…
Senator Carignan: It is the Governor-in-Council, that is what I said, the minister.
I have read several studies, including one from the American Automobile Association conducted in partnership with the International Association of Chiefs of Police. According to this study, there is no correlation between impairment and THC levels. I have seen other studies that show that there are as many people with less than five nanograms who were impaired as people with more than five nanograms. So, there is no correlation between the two. It depends on the genetic background, weight and consumption habits.
Do you think that can withstand the Charter test, namely, setting an arbitrary level without proportionality with the fact that the faculties are reduced or not?
Mr. Yost: First, there has already been a government statement on Charter considerations. It is in the public documentation on our website.
It is clear that the science is not as good for drugs — THC in particular — as it is for alcohol. Still, jurisdictions around the world are trying to take action to reduce the rate of death caused by impaired driving due to THC.
The government has taken into account the advice of the Drugs and Driving Committee. They analyzed five nanograms and two nanograms. Each has its advantages and disadvantages. The representatives of this committee will be appearing before you next week. Around the world, I have never seen a regulation that accepted a level higher than five nanograms. Some jurisdictions have two nanograms as an impairment threshold, while others use only one. This is the same message we are trying to convey. One or two is the same message. Do not complicate it.
Senator Carignan: I found a nuance, and that had escaped the testimony that has been given so far.
We were told, for example, that Colorado was setting the limit at five nanograms. In Colorado, it is not the offence that is five nanograms, but rather a presumption of impairment at five. It’s completely different from creating an offence at five.
Where in the world is there a five-nanogram offence and not just a presumption, as in Colorado?
Mr. Yost: It is a two nanogram offence in the United Kingdom. According to the European Union, it is an offence at one or two nanograms in seven European countries. In New Zealand, the offence consists of presence with poor performance in roadside tests. In Victoria, Australia — and in other Australian jurisdictions, I believe — it’s only the presence in your oral fluid that is the offence. There is no measurement of the blood level. They took another direction.
Senator Carignan: Exactly, it’s an entirely different direction. In most cases, tests are used to demonstrate impairment. So, is it a combination of both: presence and impairment?
Mr. Yost: I’m certain this is not the situation in Victoria because they have mandatory testing for drugs. So it is in no way based on impairment.
I do not know exactly in Europe how blood samples can be requested to determine that the THC level in a person’s blood is in excess of one or two nanograms. I do not know if it’s based on roadside testing or if they have mandatory testing.
The government’s goal, through Bill C-46, is to establish two levels of offence. The first level would lead to a less serious offence, and would be for a person with two and five nanograms in the blood. This offence would be punishable by a fine of up to $1,000. It is a base offence to protect the public from a real danger. The second level would lead to a sentence comparable to that for alcohol-impaired driving.
Since we do not know the ratio between the amount of substance detected in the oral fluid and the blood of a person who smoked cannabis four days ago, for example — it may be found in the blood, but not in the oral fluid — it would not be detectable by roadside tests.
Senator Carignan: If I may, I have a study in front of me that shows that the level of THC in the blood drops by 73.5 per cent 25 minutes after consumption. Do you think it will be possible to take blood samples within 25 minutes of the motorist’s being stopped to support the existence of the violation?
Mr. Yost: First, we are talking about 73.5 per cent of which level? If you are talking about the consumption of a person who has smoked, it will be quite different than if the person ingested a food containing THC.
Senator Carignan: Exactly. There will be a drop if you ate it, and it will be detected much later.
Mr. Yost: According to information we have, in England, the delay before they have the blood samples is about 83 minutes, if I recall correctly. Still, almost 75 per cent of the time, the tests reveal a level higher than two nanograms, which allows them to establish the offence. This obviously presents challenges on the operational side.
Senator McIntyre: I draw your attention to proposed subsection 320.29(1) of the bill, which deals with warrants to obtain blood samples. I note under that section, warrants for blood samples will be easier to obtain, the reason being that the bill lowers the standard to establish a person has alcohol or a drug in their body from a “reasonable grounds to believe” to a “reasonable suspicion” standard. Obviously, I’m referring to persons incapable of consent.
Another condition to proceed with a warrant would be for police to have reasonable grounds to believe a person was involved in a collision causing bodily harm or causing death within the previous eight hours, as opposed to the four hours under the current law. So my question is: Why were these changes considered necessary?
Mr. Yost: I’ll start with the easier one. The four to eight hours was based upon advice given to us by the provinces and by police. In the case of serious collisions, it’s often difficult to get everything together and obtain a warrant within four hours. They said eight hours should be plenty of time.
With respect to the other part, the “reasonable grounds to believe” is what was there. It is, of course, a higher level and it is higher than what the person at the side of the road would face if they had been uninjured and were still at the crash scene. Then you would only need reasonable grounds to suspect to go to the approved screening device. Unfortunately, a person in the hospital who cannot consent cannot be given an approved screening device test.
Consequently, to keep the person more or less on the same level as if they had not been injured and were still at the scene, the level is being reduced to “reasonable grounds to suspect.” The blood analysis will determine whether the person was over the level, and then the case will have to go as to whether this person caused the collision, was injured, et cetera. That’s the next part of the investigation, but it’s definitely to ensure in these most serious of cases, we can obtain a blood sample and find out whether that person involved in that incident was impaired.
Senator McIntyre: Do you know how often warrants for blood samples are requested and the proportion of requests that are granted?
Mr. Yost: I cannot answer that directly. My understanding from the provinces is they often are unable to obtain a warrant within time, and they find themselves trying to seize a blood sample taken at the hospital. If the person has been injured, they may have taken some blood, then they try to get a regular warrant to seize the blood sample, of course, and then they analyze that. That’s more often than the actual warrant process, as I understand it.
Senator McIntyre: I note that the bill repeals a number of Criminal Code offences, including those related to street racing, failure to keep watch of a person being towed and offences related to vessels and aircraft. Obviously, I’m referring to sections 249, 250 and 251 of the Criminal Code.
So, why was it necessary to repeal those offences?
Mr. Yost: I’ll start with street racing.
In the current offence, street racing gets a higher penalty than straight dangerous driving. Since we’re raising the higher penalties for the dangerous driving, there is no particular benefit and no reason to do the street racing. Street racing is an aggravating factor if the person is found to have been guilty of dangerous driving.
The other offences which you mentioned, particularly keeping watch on a person towed and the unsafe vessel, et cetera, those are closer in the view of the government, after considering it, to have sort of an administrative offence that should perhaps be dealt with under shipping acts, and such, as opposed to a virtually never-charged offence under the Criminal Code.
Senator McIntyre: Would you say the main reason those sections were repealed was because they would now fall under the dangerous driving section?
Mr. Yost: If a person set off with an unsafe vessel, that might, in fact, be an unsafe operation if it results in somebody being injured or whatever. You could see that perhaps being charged.
Frankly, according to the provinces that we consult with regularly on this, it arises virtually never, so it just seemed to be an offence of no particular benefit. And in certain serious circumstances, criminal negligence offences could be charged, so the view of the proposal in Bill C-46 is to repeal them to simplify and somewhat modernize the structure.
Senator Eaton: I feel with this legislation I might be completely wrong that the science is chasing the legislation. Usually you have legislation and you have all the science to back it up.
I guess what particularly bothers me — and Minister Goodale brought it up last week — is the police cannot randomly test drivers for drugs the way they can you know during the R.I.D.E. programs at Christmas, for instance. But, unfortunately when you look at people killed in crashes, 33 per cent test positive for not just alcohol and 40 per cent test positive for drugs. Do you have any idea when the science will catch up with the legislation and you’ll actually be able to legislate drug impairment?
Mr. Yost: Just a minor correction, senator. At this moment it is not possible to do a random test of a RIDE program.
Senator Eaton: That’s what I said. You cannot do that. In Toronto, at Christmas they have the RIDE programs on Avenue Road and they pull people over randomly.
Mr. Yost: Random stopping is there, but you still must have suspicion to demand a breath sample today at the side of the road. Bill C-46 will change that and they should be able to test a lot more people because it will go faster than having to question them and try to develop suspicion.
Senator Eaton: Fine, but you cannot do that with drugs.
Mr. Yost: With drugs you cannot do it under Bill C-46, that’s correct.
Senator Eaton: We hear people from your department saying when we pull them over and they smell of cannabis and have red eyes, that gives us grounds for suspicion. However, people who do this on a regular basis and put it in brownies don’t necessarily walk into a room and smell of cannabis and have red eyes. That doesn’t mean I want them piloting an Air France or Air Canada jet to Paris or driving a long-distance truck on the 401 at rush hour. I guess this is what really worries me.
How far behind do you think the science is where you will be able to pull somebody over, either have a blood test there or a Breathalyzer? For example, if I got hit by a long-distance truck in my car, you could pull them over and say would you take a Breathalyzer? You could then turn to the truck driver and say would you take a Breathalyzer? You would find out right away if one of us was impaired or drug impaired, but right now you cannot do that, can you?
Mr. Yost: Right now you cannot and under Bill C-46 you will not be able to do that. The legislation, however, is not written specifically for oral fluid devices. It’s just that at this moment the scientific advice we have from the Drugs and Driving Committee is it’s only the oral fluid devices that are sufficiently reliable to be used as an investigative tool.
I have lost track of the number of times there have been announcements of supposed breakthroughs for measuring THC in breath, et cetera, but none of this is at the stage where it’s ready to be submitted for scientific evaluation by the DDC. Perhaps one day the science will catch up. It’s certainly not there yet.
With respect to the impairment issue — and the one we keep coming back to is the blood levels — we might be able to make some progress on THC once it’s legal. One of the big problems now is because it’s illegal, trying to get the approval of an ethics committee in order to get people to smoke and try driving simulators, et cetera, is difficult to do. Some of that research is just beginning now because it’s somewhat easier to get your hands on marijuana. Perhaps in the future they will be able to come up with better correlations with blood, drugs and impairment, but for now it’s not there.
Senator Eaton: Do you foresee a time where you will be able -- as you say, using fluid samples and getting a quick result -- to randomly test pilots, truck drivers and people using complicated and dangerous equipment? I believe in some professions you can randomly test people for alcohol. Do you foresee at some point in the regulations being able to test — whether a saliva test or some other test — to see if my pilot had a nice chocolate brownie with his egg salad sandwich before getting into the cockpit?
Mr. Yost: If it was done by regulation, it wouldn’t be a regulation under the Criminal Code. There is no authority under the Criminal Code now to pass such a regulation. That would have to be done pursuant to labour or airline legislation, something along those lines, in order to authorize it.
Some random testing is taking place. It is generally contested by the unions. I understand the Toronto Transit Commission has done some of this random testing. They’ve been challenged in the courts. I’m not quite sure what stage that one is at in the courts, but that is a labour relations issue. It is not something addressed by Bill C-46 nor, in my view, is it ever likely to be addressed under the Criminal Code. If you’re not testing someone who is actually operating or in care and control of a vehicle as they show up to work, that doesn’t do it under the Criminal Code.
Senator Eaton: I guess I was speaking about FETCO, who appeared before the Senate Finance Committee during our budget hearings and were very worried about people in the transportation industry. Thank you very much.
Senator Gold: Thank you for being here today. In the preamble, paragraph 8 of the bill, the importance of federal and provincial laws working together on road safety are noted and federalism always comes up at some point.
I understand, though, the provinces are waiting — eagerly and anxiously perhaps — for this bill to pass so they can make the changes in their laws to adequately complement Bill C-46.
Could you give us a sense of the kinds of changes that provincial and territorial laws are contemplating from their point of view — I understand you consult regularly — and concerns about a possible delay of this bill, in terms of getting their legal framework through their own legislative processes? Thank you.
Mr. Yost: Again, all the officials I deal with are very eager to get this legislation in place, namely the alcohol part for Jordan and the drug part, because they are concerned about drugs.
I believe we could produce a summary of what was proposed by the provinces. I am aware Quebec made an announcement, if I recall correctly, that they’re going to take your licence away for 90 days. However, I’m not sure whether it’s based on just the drug presence or that and something else, like Standard Field Sobriety Testing. I believe Saskatchewan is also adopting a zero-tolerance policy for people who have it. They very much want the legislation in place and approval of drug-screening equipment so they can actually do the testing of people at the side of the road.
Senator Gold: Do you have a sense, from your counterparts in provincial and territorial governments, as to how long it will take them, once this bill is passed, to introduce the legislative changes and have the training in place for the police officers and others?
Mr. Yost: I’ll leave the training question to public safety —
Senator Gold: In terms of police officers, we’ve heard testimony about that. I was thinking more of just getting up to speed on training in relation to what the law in Bill C-46 says and what the provincial legal framework is.
Mr. Yost: There was a large meeting last week with all the provinces and police, et cetera, going through the legislation and how it might change what’s going on. I can assure you there’s a lot of work going on already.
With respect to legislation, many of the provinces have already tabled legislation. I understand Quebec actually makes reference to the numbers that are proposed in Bill C-46. They’re fairly sure it will come into force. Others use references to federal impaired driving legislation, so it’s kind of general and they can get under it.
As I understand it, they have been working to change a lot of their forms from the old numbers to the new numbers. Once a bill was returned backed by a majority government, they felt pretty sure the numbers would change, so they started all those processes already. However, obviously they can’t flick the switch until Bill C-46 should happen to get Royal Assent.
Mr. Daigle: They would be able to enforce Bill C-46 upon Royal Assent, if they want to complement that with highway traffic offences and their own.
Senator Gold: That was the thrust of my question.
Ms. Morency: Quebec has Bill 157 that has been introduced. This week British Columbia announced its intention and its plan on how it would come forward with its own legislation that would include some administrative penalties at the roadside similar to what they do now very successfully for alcohol.
In terms of the way the two work together, criminal law and the highway traffic legislation within provincial-territorial jurisdictions are complementary. Some are further ahead in announcing where they see themselves going and others are working quite diligently to get there.
But, as said, Bill C-46 is criminal law. The idea is to have it ready to go to Royal Assent for the drug-impaired amendments in part one.
Senator Gold: So they are ready and, is it fair to say, eager that Bill C-46 be passed?
Mr. Yost: Certainly, I’d agree with eager. I’m fairly sure some of the provinces are ready. Others, as was just mentioned, are a little bit further behind on the process, but they’re working fairly hard on it.
Senator Batters: Thanks very much. First of all, there was an article in Blacklocks Reporter yesterday. The title was “Fear Glut Of Traffic Arrests,” and it referred to a memo authored by the Department of Justice that was obtained by Blacklocks through access to information. It says the 2017 memo was called “Estimating the Effects of Lowering the Criminal Threshold for Impaired Driving from 0.08 Blood Alcohol Concentration to 0.05 per cent.” I would like you to provide our committee with a copy of that memo, please.
Ms. Morency: We’ll undertake. I’m not familiar with that. I think I heard reference to it yesterday in the Senate, but I’m not familiar with the memo. But we’ll undertake to do our best to see what we can provide.
Senator Batters: Okay. Thank you. One of my colleagues mentioned a little bit about this, and I think Senator Carignan, with the opening part of his questions, did as well. But I just wanted to have a little bit more attention to the difference between regulation and legislation. In this particular bill, Bill C-46, acceptable levels of drugs to determine drug-impaired driving will be set by regulation, not legislation. The difference between the two, for those who might be watching and aren’t aware of this, is regulations are put into effect purely by the Governor-in-Council, which is the Federal Cabinet, the Government of Canada. On the other hand, legislation, such as puts into effect the 0.08 alcohol impairment, is put into effect by passing both houses of Parliament, the House of Commons and the Senate.
It’s obviously considerably easier for a government to change a particular provision by regulation than by legislation, correct?
Mr. Daigle: Yes.
Senator Batters: I just wanted to make sure people realized that because it’s a bit unusual.
Mr. Daigle: There’s still a process to go through.
Senator Batters: Of course, yes.
Mr. Daigle: And usually there is a public comment period. There is a regulatory impact assessment statement that is prepared. Canadians get to look at the proposal to provide comments, and then officials will review the comments and provide some advice to the government. Right now, the cabinet committee that looks at those things is the Treasury Board, and they will decide whether to enact those regulations.
Senator Batters: Right. But as Bill C-46 has been phrased and set out, those drug levels are determined by that regulatory process, not by going through both houses of Parliament.
Mr. Daigle: That’s correct. Parliament would approve. In Bill C-46, we’re proposing that Parliament approves an enabling authority that would allow the Governor-in-Council to make those decisions.
Senator Batters: Right. Which is a very general thing, and it doesn’t set the specific amounts or anything like that. It’s just a very general thing saying the government can make regulations that do this and this type of thing and that sort of thing, right?
Mr. Daigle: It says it would allow the government to set those amounts.
Senator Batters: Yes. Okay, thank you. I’m sure a few of you have been with the Department of Justice for quite some time, and so whoever is qualified to answer this particular question, please go ahead. Which particular portions of Bill C-46 to counter the delays in the criminal justice system with impaired driving and to forestall certain impaired driving defences were part of the Conservative government’s legislation that was introduced in I think June of 2015, a few months before the election that year?
Mr. Daigle: Maybe somebody else could speak to that. A lot of what was in Bill C-73, some of this stuff is in here, and other things are not.
Mr. Yost: The provisions regarding the conclusive proof of VAC. There were similar provisions in Bill C-73. They have been modified somewhat in Bill C-46, on the basis of the advice of the Alcohol Test Committee, as to how it should be written.
Similarly, with the disclosure provisions, there were provisions dealing with disclosure in Bill C-226.
Let me see what else we had in there. Bill C-73 did not have mandatory alcohol screening. So it did not address that one.
In terms of speed, those were the two major ones that we’re going to address. A number of measures to strengthen the DRE provision, including the DRE presumption, were included in Bill C-73. The hybridization of causing bodily harm offences was in Bill C-73. It’s expected that a number of them will proceed now summarily, and that should proceed faster. That was also in Bill C-73.
Senator Batters: Done by your department for many years to try to curb impaired driving, to try to improve the delays that had become a glut in our court system.
Mr. Yost: I’m certain there were a number of other things I’ve managed to forget because I wasn’t quite expecting that question, senator.
Senator Batters: That’s no problem, but if you wouldn’t mind providing our committee with any other portions you might remember later on, it would be great if you would check. Thank you.
Mr. Yost: Yes.
Senator Batters: One last thing. Since you’re here, I’ll ask you this: The Minister of Health yesterday — I forget if it was at Committee of the Whole or in media availability later — indicated that retail stores in Canada won’t be authorized to open and sell marijuana for likely about eight to 12 weeks after Bill C-45 comes into effect. So marijuana will be legal, but you won’t be able to buy it. But my understanding is what will be legal at that point is every household in Canada will be able to have four plants under Bill C-45, which is a relatively unregulated thing. Am I understanding that correctly.
Mr. Daigle: What the minister talked about is the difference between getting Royal Assent and coming into force, so, until the Act comes into force, cannabis will not be legal.
Senator Batters: Okay. So she was not talking about —
Mr. Daigle: She was talking about obtaining Royal Assent and then allowing time for distributors to stock shelves and having an orderly preparation for the actual sale and distribution. When that takes place, then the act would come into force. Right now, the bill —
Senator Batters: Is she then saying that she is hoping to have the Act get Royal Assent by — I don’t know, what is she thinking — the end of May in order to have some sort of a July time frame?
Mr. Daigle: I think the ministers yesterday said they’re still hoping to have the Act come into force in July 2018.
Senator Batters: Come into force by then, but —
Mr. Daigle: It will depend, obviously, on the work of this committee and the work of the Senate and the house. From there, the provinces have told us they think they may need 8 to 12 weeks before they’re ready, at which point the act provides that the Governor-in-Council can then issue a date of coming into force.
Senator Batters: So that really backs up the Royal Assent date into not that long from now, correct, to provide eight to 12 weeks?
Mr. Daigle: It could move up or down.
Senator Pate: When the minister was here last week, when I requested information about mandatory minimum penalties and part of the rationale for imposing them, she mentioned there was research. We’ve since had the opportunity to re-review some of the research that was available, and it still seems equivocal at best. Most of the research shows, in fact, the deterrent effects are negligible or seem to be overshadowed by educational campaigns. At the very best, it’s difficult to assess whether the legislative initiatives of mandatory minimums have impacted, but, certainly, education is important.
But what was very interesting is some of the research showed that, in fact, the best way to prevent impaired driving currently has been the use of ignition interlock devices. Most of the advocates for stopping impaired driving, whether it was, as the minister mentioned, MADD Canada or other groups, have actually advocated ignition interlock devices.
I’m curious whether your negotiations with the provinces and territories have included discussion about a regulatory scheme that could apply to car manufacturers and licensing bodies to look at the use of interlocking devices. Given all the evidence, it seems the overall purpose of the bill is to stop impaired driving and to prevent harm. It seems to me all the research shows that as the most effective device to date.
Have you looked at the impact? Is there anything similar in terms of drug detection with interlock devices? I couldn’t find anything about that in the research.
I have another question. Mr. Yost, last week, you talked about and I had asked questions about the exemption or ability for people not to have a mandatory minimum imposed because of treatment. You mentioned there was research in the provinces. We also looked at what is available. All the evidence we have so far — and if I'm missing something I would be happy to be pointed to it — shows most of what is actually being developed are drug courts, not necessarily treatment programs. In fact, aside from those who are very wealthy, in most cases, the availability of drug treatment is all over the place but it is certainly difficult to access, with long waiting lists. In effect, the exemption will only apply to those who have significant resources. Coupled with that, it requires the concept of the Crown, so there’s some issue around arbitrariness and availability.
In light of that, I’m interested in what you found out about interlock devices and why you didn’t look at that. I’m also interested more broadly about what sorts of potential court challenges are you preparing for as a department in light of those issues?
Mr. Yost: I wrote some. I’m thankful you raised ignition interlock and treatment, because those are two more things that we believe will help to speed up the courts. Having access to these things faster might make it more likely that a person would be prepared to plead guilty, because the penalty might be less than if they fought it all the way through. So that might help.
With respect to ignition interlocks, Bill C-46’s proposal is to reduce the amount of time where a person is eligible to get onto the provincial program. Right now, it’s three months for a first offence, and now there will be no limitation period. That’s just to be eligible to apply. The provinces have to decide; it’s their program. Then the six months and one year become three months and six months, so we’ve substantially reduced the amount of time where you can’t get an interlock under federal law to try to be open.
Regarding the use of interlock in vehicles, first let me say that I’ve never heard of anything like interlock for drugs. I’m unaware of it. Perhaps the scientists, when they’re here, will have heard of something, but I certainly have not.
When you get to the issue of the drug courts, Bill C-46 is very much modelled on the legislation under the Controlled Drugs and Substances Act. Where there are drug courts, and you’re in a drug court program, that’s fine. There are a lot of places that do not have drug courts.
I’m sure Senator Sinclair would be aware of many areas of the country that do not have drug courts, but they may have treatment programs, and they can be supervised by the courts. In fact, when we were dealing with this provision of the curative discharge, et cetera, it was made quite clear to us by our own prosecutors in the North that the delay of sentencing and conditions of abstaining from alcohol and not driving, et cetera, were a standard way of controlling and trying to deal with the problem up North. But the installation of those things in vehicles, et cetera, would be a decision for Transport Canada, perhaps, and it is certainly not envisaged at all in Bill C-46.
The program is quite expensive, actually; it’s $150 a month or thereabouts. You have to show up and get your information downloaded. It’s quite inconvenient and expensive. Perhaps that’s part of the educational value of it and deterrence of ever doing it again.
I’m not sure I caught all of your questions.
Ms. Morency: I think your last question was: What are we doing to anticipate or prepare for perhaps Charter challenges?
Senator Pate: What sorts and —
Ms. Morency: The impaired driving area of the Criminal Code is the most litigated of all Criminal Code provisions. That’s given and well established by the data. Yes, we do expect some challenges, and yes, we do expect cases to work their way through the system that might test some of the new laws.
How do we work to support the effective implementation of Bill C-46, once Parliament has enacted it? Reference has been made to the Charter statement, and there’s also a technical paper that exists now that was tabled by the minister upon the introduction of the bill. We are working with our provincial-territorial colleagues, as well, in terms of trying to develop more of a technical guide for police and the Crown to help with the effective implementation.
As my colleague mentioned, many of the reforms reflected and proposed in Bill C-46 have been issues of ongoing interest from our provincial-territorial Crown counterparts over the years because of the litigation in this area.
I think you started with some comments about mandatory minimum penalties, for example. In the area of impaired driving, there has been a mandatory minimum custodial penalty since the first offence in 1921, and then mandatory minimum fines were added more recently. Since then, we’ve had a combination of mandatory minimum custodial sentences and mandatory minimum fine escalating.
There have been very few Charter challenges in that area, notwithstanding it’s one of the most litigated areas. The mandatory minimum fine was first enacted in 1951.
So the approach reflected in the Criminal Code now and that Bill C-46 proposes to essentially continue is a combined effect, with an escalating approach for repeat offenders. As I say, there have been very few Charter challenges there, but obviously we continue to monitor. We would want, through our technical guide, to try to address those.
We work closely with the PTs. For example, in 2008, when Parliament enacted the last round of reforms to the Criminal Code in this area, we worked closely with them in terms of trying to address those Charter challenges. There are some efficiencies to be had when provinces and the federal government work together to develop arguments in support of the constitutionality when those challenges arise.
Senator Batters: I have a very short supplement on this. I’m sure you would agree the mandatory alcohol screening is likely to be an area ripe for Charter challenges. How do you plan to argue against that particular one?
Mr. Yost: I would refer you again to the Charter statement that has been put out and the factors that have to be considered. The test that the Supreme Court has set out in terms of determining whether a law infringes on the Charter, in particular whether it can be justified under section 1, are well known. It will be an issue.
In fact, as far as back as 2009, the Standing Committee on Justice and Human Rights, which recommended random breath testing, as it was called then, went through the issues of the likely impact on reducing deaths and injuries as opposed to the minimal intrusion upon the person of having to blow some air for 30 seconds or thereabouts. They recommended it then, so their view then was that it was justified under the Charter. It’s now in front of Parliament for Parliament to make its decision as to whether it considers it to be appropriate. Then, presumably, it will be challenged in the courts, and evidence will be brought forward.
Mr. Daigle: The minister did refer yesterday to some of that evidence and the justification. When we look to other jurisdictions and the impact they’ve had — I think she talked about Ireland reducing, over four years, roadside deaths by almost 40 per cent and by 25 per cent in the first year of bringing in legislation. That’s the kind of evidence we would be referring to in a Charter challenge to justify mandatory screenings.
Senator Boniface: Thank you again for being here and for your work on this. I’d like to follow up on a question I think Senator Pratte asked last week so I can try to have clarity in terms of the drug-impaired driving and the question regarding the choices for the officer around the use of a DRE, a blood test or both.
I’m wondering if you can help explain how you came about creating those options for the front-line officer?
Mr. Yost: In terms of general approach, we do not normally force the police officer to make a choice of going one way or the other. With the current legislation on alcohol, the officer can do an approved screening device or he can do SFST, or both. That covers the situation where he tries an approved screening device and it’s not alcohol. Let’s find out with SFST if there is something else going on.
There will be situations for the foreseeable future where the availability of a DRE will be questionable. A police officer may decide he has the grounds. I will take a blood sample and I will make the DRE demand as well. If you have a shortage of DREs or there are four people showing up and a DRE process takes about an hour, you may not get to the DRE. So I could see where they would want to have both the blood sample as the backup to the DRE. But in any event, give the police officer the options. This is a matter of training for the police officers as to what they should do under which circumstances. But we don’t want to restrict the tools they may use.
Senator Boniface: Can I ask a supplementary question on that? I think with the question raised in terms of the officer, the DRE concludes perhaps one way, the blood test says something else. I assume it would then be up to the officer to make a decision on whether he or she would proceed with a charge. Secondly, it would be up to the prosecutor to decide whether they would proceed as well. It’s just more or less evidence that would have to be weighed going forward?
Mr. Yost: Yes, there could be the situation where the police officer at the side of the road saw very serious signs of impairment, sufficient to justify the DRE. Let’s assume he also took the blood test. By the time the DRE looks at it, the person has recovered sufficiently and the DRE is saying, “At this moment in front of me, this person is not impaired to drive.” The question becomes: Were they impaired at the side of the road? The DRE, if he has concluded he is not impaired, has no authority to demand a bodily sample. This would be the fallback I spoke of.
When you get it back, a toxicologist might be necessary to advise the Crown as to whether, having found these drugs in this person’s body and knowing how they react, it is highly probable or worth taking a shot or drop the charge. That will be an issue between the police officer at the side of the road, the toxicologist and the Crown to decide how to proceed in those circumstances.
Senator Boniface: Thank you for clarifying.
The Chair: Before we go on the second round, if I may, I will submit a question. Yesterday, the Supreme Court heard two cases. One is Gubbins and the other is Vallentgoed. Both raise the admissibility of the reliability of the screening device in relation to the alcohol test.
If those two cases succeed, that is, if the proof of reliability of the screening device is an argument in the defence of an accused, would it impact section 320.34 of the bill at page 32, which restricts the results to be given to the accused in the context of the fair and complete defence? In other words, would we not be invited, if the court gives us its final decision before we vote on third reading on this bill, to have to amend 320.34?
Mr. Yost: Well, I had hoped to be at the Supreme Court yesterday to watch this, but other things took precedence. It’s perhaps not a good idea even to be there and then guess as to what they are going to do or how long it will be before there will be a judgment.
With respect to 320.34 on disclosure, if the Supreme Court decision is unfavourable to the Crown, it does allow for applications for further disclosure. It doesn’t actually say this is all that shall be disclosed. The provinces might start to disclose more material in light of the judgment if they had to, but if they didn’t, they could make a disclosure application. They would have perhaps pretty strong information and support as to why this is necessary to obtain, and they would be able to say in light of the decision of the Supreme Court in those cases you have talked about. That’s somewhat down the road, senator.
The Chair: As you realize from questions around this table, I think it’s Senator Eaton who has a word that is very descriptive. The science is looking for a bill. The device is still being tested. We heard it from the ministers who appeared here last week. So it seems it’s not as if we would be in a situation whereby the screening device would have been tested over time and they were recognized generally as being reliable.
Those screening devices seem to be in the development process. As you said, they are being tested now. I think there is an element of uncertainty, which raises serious doubt about how the lawyers and the defence lawyer will be using those elements of uncertainty to raise objections to the accusation to succeed.
Mr. Yost: Senator, 320.34 deals only with the disclosure in breath testing situations. That’s obviously the alcohol. It’s the approved instrument proving the BAC. I understand you will have the Alcohol Test Committee here next week. The reliability of this equipment has been scientifically established for many years.
We have very rigorous testing and consequently, we will see what the Supreme Court has to say. But the disclosure regime in 320.34 is quite clearly only dealing with the proof of a blood alcohol concentration by a breath sample. It does not deal with the drug screening at all.
The Chair: I don’t want to have an argument with you, because we have a second round. But what is good for the goose is good for the gander. So if the alcohol test has to be given as information reliably, you can expect all the other tests will be submitted exactly to the same request of information and reliability, it seems to me.
Senator Boisvenu: We know that mandatory minimum sentences are not only intended to have a deterrent effect. Mandatory minimum sentences must represent the minimum sentence in relation to a serious offence.
Driving while impaired and committing a homicide is one of the most serious offences, and what we have in the bill is a minimum penalty of $1,000. There is a real disproportion between what I would call a very serious offence and a minimum sentence like that.
Your department drafted Bill C-73, the predecessor of Bill C-46. In clause 320.21, you are proposing a minimum sentence of six years for impaired driving causing death, six years. This clause was no doubt meant to respect Canadian constitutionality. What did you base this on in order to establish a six-year sentence in Bill C-73 and now you show up with a minimum penalty of $1,000?
Mr. Yost: Bill C-73 was introduced by a Conservative government that might have had a different attitude toward mandatory minimum sentences than this government does. What was in Bill C-73 was in Bill C-226, and during the debate the parliamentary secretary made it clear that the government would support it, subject to amendments to eliminate the mandatory minimum sentences of imprisonment. The minimum fine of $1,000 today has been in place since 2008. I remember that it was established at the time to avoid a conditional sentence order because of the mandatory minimum sentences. That was the only reason. The courts have not given anyone who caused death a fine of $1,000, and I do not think they have fined people who have caused bodily harm.
In reworking Bill C-226, I made an error. I did not recognize that this clause had to be reinstated in the current Criminal Code to provide for minimum mandatory sentences for the same reasons as before. We did not think of that. It was simply an error in drafting.
Senator Boisvenu: Can the Department of Justice tell us the average minimum sentence issued in the past five years for impaired driving causing death?
Mr. Yost: You mean the average sentence and not the average minimum sentence?
Senator Boisvenu: Yes, the average minimum sentence issued for impaired driving causing death.
Mr. Yost: It depends on the province. In Lacasse, the Supreme Court referred to the Quebec Court of Appeal’s guidelines applicable to a person without other prior convictions and, for the first time, ruled that the sentence could be from 18 months to 36 years in prison. The judge issued a sentence of seven years in prison. The Supreme Court said that the Court of Appeal guidelines were not rigid. If the judge had good reason for straying from them, the sentence could be much harsher.
In Ontario, a good many Court of Appeal decisions have called for harsher sentences. I think the minimum sentences are in the order of four or five years, but that is not a rule set out in legislation. It is case law. There is some variation nationally because we have also seen 10-year sentences.
Senator Boisvenu: You do not know what the average minimum sentence was?
Mr. Yost: It would be very hard to tell you the average because we do not have all the decisions. They are not all reported. I cannot tell you what happens in every case. I receive press releases from organizations such as MADD Canada which report various sentences, but I could not tell you the average.
Senator Dupuis: Mr. Morency, you said that the department draws on its experience with drunk driving cases, that is, people charged with driving while under the influence of alcohol.
We know that medical marijuana was approved a number of years ago and, as I understand it, the department does have some idea. Yes, it is a new product, a new offence, new offences, but this is not a completely new regime or completely unknown territory in the sense that we can predict how the people who are stopped will react.
I would like to know whether you have more specific information about the new possibility of random alcohol testing and about racial profiling. Racial profiling has not been discussed a great deal. I would like to know if you have any information about that, if you have gathered any feedback or held consultations about it. I am thinking for example of the Ottawa police report on the data gathered from 2013 to 2015. That data is very explicit about racial profiling and police officers’ perceptions. There are in fact very clear findings in the report regarding personal bias, as the report indicates that individuals who are black or of a different race are stopped much more often.
Ms. Morency: I will ask Mr. Yost to answer.
Mr. Yost: Clearly, there is nothing in this bill that promotes racial profiling in any way.
It is also clear, as you said, that there are difficult situations in a number of cities. We have received reports to that effect and I have attended a few meetings with Statistics Canada. No one seems to have information about impairment and racial profiling.
Appearing before the House of Commons committee, representatives of the Australian police and an expert on Australia indicated that the fact that it is mandatory for everyone also reduces the possibility of racial profiling. It is a police policy. When the police stop someone, they have reason to do so or it could simply be a road block and everyone has to be tested. It is not in the legislation, but these are police practices. They have had the same problems in Australia with their aboriginal populations.
The preamble was amended in another place and the legislation is clear. We also refer to a Supreme Court decision that you no doubt remember, the Little Sisters case. This case involved customs issues, but the Supreme Court ruled that nothing in the legislation, in this specific case, would encourage or support discrimination against the LGBTQ community. It is the same thing here. We have done what we could in the legislation.
I believe you will be welcoming police representatives who will talk to you about the application of the legislation as opposed to something in the legislation.
Senator Dupuis: It is interesting that you raised the issue of road blocks in particular. Why has random testing at road blocks not been included in the legislation? That might reduce the risk of personal bias because, as you said, everyone would be required to provide a breath sample.
Mr. Yost: The problem is that road blocks are extremely hard to organize, especially in small towns outside the big cities. Even in the big cities, they are expensive because eight to ten police officers have to be present.
There is another very important point. I read an analysis in a report from Australia that dates back a few years, but that I was not able to find today. This analysis indicates that, in the era of social media, people can very quickly warn their friends that the police are at a certain location so they can take a different route. The essential point of this analysis is that police actions must always be unpredictable. People must not know where the road blocks will be and they must know that they can be stopped and forced to take a breathalyzer test for any reason. A driver can be stopped simply because one of their tail lights is out.
Senator Dupuis: We also know that certain countries use road blocks and make that known publicly. Everyone knows about it. It is amazing how successful they have been in reducing the number of impaired drivers whereas one might think that everyone had been alerted via social media. Even operation red nose, in Quebec, gets good results despite all the publicity about it.
I would like to know more about the declaration or interpretation provision 320.12, specifically paragraph a), which says that driving is a privilege and not a right.
I would also draw your attention to paragraph (d), which stipulates that an evaluation conducted by an evaluating officer is a reliable method of determining whether a person’s ability to operate a conveyance is impaired.
What is the purpose of introducing proposed section 320.12 in relation to the two presumptions being created further down in the same clause?
Mr. Yost: Parliament adopted the system in 2008 further to evidence received at the time. There were studies on the reliability of the system. Canadian courts expressed some reservations, so there were a few problems in that regard. The situation is not the same as in other countries where the system is well-established, having been in place for some 20 years. It was, in part, to help the provinces defend themselves against challenges to the science. What was in Bill C-73 differs from what is in Bill C-46. Bill C-73 mentioned evaluating officers’ expertise. That is based on science. Evaluating officers, themselves, can be cross-examined; they can make mistakes and be challenged. We are confident that the system will produce reliable results if Bill C-46 is properly implemented. I believe Doug Beirness, of the Canadian Centre on Substance Use and Addiction, has conducted at least three studies that the centre referred to when developing its policies. I have the document, entitled Policy Statement on DRE. They found the method to be effective. We are relying on the scientific data provided to us in 2008, which were strengthened by the centre’s study on the subject. The findings are clear: the science is reliable.
Senator Sinclair: I was curious about the issue of the ability of a police officer being authorized to require a blood sample as opposed to the previous law, prior to this bill, which required a police officer seek a warrant in order to get a blood sample from an individual. When I was a trial judge, we used to get the applications, sometimes by telewarrant, sometimes in person from police officers, to order that an individual provide a blood sample to a medical official. In the warrant itself, there was a provision that provided the sample that was taken could only be used for the purpose of analysis with regard to the question of impairment.
I was looking at the proposed bill, your proposed section 258.1(1). Is that the provision intended to limit the use of blood samples that are ordered by police officers or taken as a result of an order by a police officer for only the purpose of analysis?
Mr. Yost: That would definitely be the one. It is reproduced under a different number, with different cross references, slightly changed, in the new section. It’s in Part 1. Yes, that’s the one. You take the warrant, and that blood sample is to be analyzed for that purpose only. You’re not supposed to do it for anything else.
Senator Sinclair: It can’t be used to analyze against other crimes for example?
Mr. Yost: No, absolutely not. That would definitely be an inappropriate use, and blood samples can only be uploaded to the national DNA data bank — because that’s my other file — by one of the three forensic laboratories if it has been taken from a crime scene. It’s not a crime scene if you take it from a person, and no crime is committed. It cannot possibly be used for that.
Senator Sinclair: The other area I have a question on has to do with the issue of racial profiling referenced by Senator Dupuis. Racial profiling is a concern particularly for minorities groups but in Canada primarily, I would think, for the indigenous community in certain parts of the country.
When I was a judge, I was stopped by police on an average of twice a year for the period of time I was a judge, just so they could check my driver’s licence. They always said it was part of their campaign to check for enforcement. They never charged me with any other offence, but it was interesting none of my colleagues on the bench were ever stopped by police officers during the 28 years I was a judge.
Since I have come here, incidentally, as a senator, I have been stopped three times by police officers as part of a campaign to check. Last time, though, it was because the officer wanted to take a selfie with me.
Ms. Morency: Ah, well, that’s okay.
Senator Sinclair: That might have been more mundane or less concerning. Nonetheless, racial profiling is, I think, an issue of concern. This bill makes it easier for officers to interfere with the movement of individuals because of the ability to order blood samples and to do roadside impairment tests and drug evaluations. I wondered if you had given some thought to the possibility of addressing the issue of racial profiling through the monitoring of behaviour of police officers, such as through body cameras and providing, as part of the equipment provision, a requirement that police officers on drug or impairment enforcement processes be required to wear body cameras or keep records of who it is they stop just so the question of racial profiling can, in fact, be assisted and monitored by the department?
Ms. Morency: Thank you for the question. That probably is a question that might be better placed for our colleagues from Public Safety, but we certainly can alert them. I know some of them will be here next week.
There are a couple of other ways that can also be addressed. I think part of the roll out for the training they are developing with provinces and territories for law enforcement will be an important part. As well, the bill, as amended in the House, would require the Minister of Justice to table a report on the bill three years after coming into force. So that’s another way for to us try to monitor some of that.
The issue you raised is a serious concern. A number of witnesses have raised it. It is one of the challenges I think we all face in the criminal justice system in trying to get a better sense of how and when that is playing out. We have been hearing a lot about it in the news recently, including the Ontario policy.
I know it’s a serious concern, senator. I think we will work to try to address that through the materials we can develop. It would be part of our efforts going forward to establish some baselines and see how things are actually being implemented. But we’ll bring it to the attention of our colleagues at Public Safety as well.
Senator Sinclair: Thank you.
Senator Carignan: I have questions about two things. Mr. Yost, I would like you to clarify something you said. In response to one of Senator Eaton’s questions, you said that random drug testing was an issue that labour legislation had to address, rather than the Criminal Code. Did I understand that correctly?
Mr. Yost: If I remember correctly, the question had to do with measures that could apply to pilots.
Senator Carignan: Yes, exactly.
Mr. Yost: The Criminal Code applies to any Canadian who is driving on the road or flying an airplane. The person must be engaged in the act of operating the vehicle.
There is nothing in the Criminal Code that would require a pilot arriving at the Ottawa airport to operate an aircraft in the next two hours to provide a breath sample or undergo drug testing. That would fall under labour or public safety legislation, or perhaps the regulations under the Aeronautics Act.
Senator Carignan: Bill C-46 amends the Aeronautics Act as it applies to those who operate, or have the care or control of, vessels, aircraft or railway equipment. The term “motor vehicle” covers many situations, even when Claude Carignan is sitting atop his riding lawn mower.
Mr. Yost: Yes.
Senator Carignan: It also covers individuals who operate trains, including remotely. The random alcohol testing applies to all those people, including pilots and train conductors. The Criminal Code even covers those who operate trains remotely. They, too, are subject to random testing.
Mr. Yost: Yes, but under the current legislation, that does not change anything.
Senator Carignan: That’s true, but the random testing provided for in Bill C-46 would apply to train conductors and boat operators.
Mr. Yost: Which random tests are you referring to?
Senator Carignan: The random testing for alcohol, which you refer to as mandatory screening.
Mr. Yost: No. New subsection 320.27(2) refers to individuals operating a motor vehicle. It applies only to motor vehicles.
Senator Carignan: Yes, but a vessel is a motor vehicle, and it is defined.
Mr. Yost: No.
Senator Carignan: Yes.
Mr. Yost: The term “operate” is defined. In the case of a motor vehicle, operate means to drive it or to have care or control of it. In the case of a vessel or aircraft, operate means to navigate it, to assist in its navigation or to have care or control of it. In the case of railway equipment, operate means to participate in the direct control of its motion. That is the current terminology. We wanted to keep the wording simple, so as not to have repeated references to “a person operating a motor vehicle, navigating an aircraft, or having care or control of it.”
Senator Carignan: It’s worse than I thought. You have mandatory alcohol screening for individuals operating motor vehicles — which would include Claude Carignan using his riding lawn mower — but not for aircraft pilots.
Mr. Yost: That is correct.
Senator Carignan: Wow!
Mr. Yost: I have never heard of random testing for anyone other than drivers of motor vehicles. We are talking about road safety here.
Senator Carignan: Bill C-46 amends the Aeronautics Act, the Railway Safety Act and the Customs Act. Under Bill C-46, customs officers are considered peace officers. If I understand what you’re saying correctly, customs officers can conduct an alcohol screening test if they suspect the person of having alcohol in their system, but they cannot conduct mandatory screening.
Mr. Yost: You understand correctly. Motor vehicles are the exception. In the case of other conveyances, a peace officer must suspect that the person has alcohol in their system.
Senator Carignan: A customs officer is a peace officer. Therefore, if the customs officer has a suspicion, they can require the pilot to submit to testing only after they have exited the aircraft, but not before they board the aircraft.
Mr. Yost: How is it possible for a customs officer to intercept a pilot before they board the aircraft? It is possible upon the pilot’s arrival at the airport, when they go through customs.
Senator Carignan: Customs officers usually encounter pilots fairly often.
Senator Eaton: In the case of a private plane, customs officers enter the aircraft upon landing.
Mr. Yost: What you said is entirely true, even though I don’t often fly on private planes. If you are flying from Ottawa to Toronto, you will not have any dealings with customs officers. If, however, you are going from Toronto to New York, you will deal with U.S. customs officers.
Senator Carignan: In the case of international flights, is it possible for customs officers to interact with aircraft pilots?
Mr. Yost: Maybe, I’m not sure.
Senator Carignan: That demonstration will come later. If I understand correctly, when Claude Carignan is operating his riding lawn mower, he could be required to submit to mandatory alcohol screening, but not an aircraft pilot.
Mr. Yost: You are correct. In the case of pilots, customs officers must suspect that they have consumed alcohol.
Senator Carignan: Certain things in this bill will need to be fixed.
My other question pertains to new subsection 253(3), which stipulates the following:
Subject to subsection (4), everyone commits an offence who has within two hours after ceasing to operate a motor vehicle….
The offence occurs within two hours after the person’s operation of a motor vehicle.
New subsection 254(2), which deals with testing for the presence of alcohol, sets out the following:
If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle….
The offence occurs within two hours after the person’s operation of a motor vehicle, and the peace officer’s authority to test for the presence of drugs or alcohol applies to the preceding three hours. That leaves one hour during which an offence has not been committed. If the peace officer tests for the presence of drugs or alcohol two hours and 59 minutes after the person operated a motor vehicle, the individual has not committed an offence for the past hour. If the person has not been in contravention of the Criminal Code for the past 59 minutes, how can the peace officer’s authority to test the individual be justified?
Mr. Yost: The first thing I will say is that the alcohol screening test has absolutely no relationship to the two hours. Allow me to explain. For years, it was possible to require someone who was operating a vehicle to submit to ASD testing. That was problematic for the courts because, in the case of a road accident, the person would have gotten out of the vehicle and thus would longer be operating the vehicle, or having care or control of it.
I quite clearly recall one case where police apprehended an individual for some reason and there was an arrest warrant for that person. They placed the individual under arrest and put them in the police car. On the way to the police station, they noticed the smell of alcohol, but the judge ruled that they did not have the authority to require the individual to submit to an ASD test because the person had exited their vehicle five minutes prior. The person was not operating the vehicle and did not have care or control of it. The three-hour time frame was set out specifically in response to that problem, which typically occurred in the case of a road accident.
There was never a time limit for a request to submit to an approved instrument analysis.
Senator Carignan: You amended the offence.
Mr. Yost: Yes, I know.
Senator Carignan: The offence must occur within the two hours.
Mr. Yost: I know.
Senator Carignan: Why not adjust the time limit for testing? The offence occurs within two hours after the operation of a motor vehicle.
Mr. Yost: If I may, I would like to describe a scenario that may help explain why.
Senator Carignan: Please, paint me a picture because I do not understand.
Mr. Yost: An accident occurs and the driver flees the scene. It will take time to find the driver. After two and a half hours of searching, the police locate the individual at the hospital and he smells of alcohol. He is known to have driven within the past three hours, so police can therefore request a breath sample for ASD testing. He fails the test and is taken to the police station. After speaking with his lawyer and so forth, he provides a blood sample three and a half hours after having driven the vehicle. That is not at all problematic under the bill because it provides a formula for a retroactive calculation, and it does not require a toxicologist. Let’s assume he had a blood alcohol concentration of 130 mg three and a half hours later. It can be determined that his blood alcohol concentration was 145 mg, because 5 mg is added for every 30 minutes after two hours. Even today, the authority is available four hours later. That is still enough to establish the connection. Two hours later, he is still committing the offence because it is possible to calculate that his blood alcohol concentration exceeded 80 mg. It is possible to establish the connection three, four or even five hours later, thanks to the calculation.
Senator Carignan: If it is three hours and five minutes later, it is no longer possible to request that the person submit to testing. Is that right?
Mr. Yost: No, it will not be possible to request that the person submit to ASD testing. If, however, there is sufficient evidence that the person’s ability is impaired by alcohol, there are other ways to do it. For instance, there may be witnesses who saw that the driver was unable to stand up straight as he fled the scene, impaired by alcohol. It is then possible to request an analysis by means of an approved instrument in order to establish the individual’s blood alcohol concentration.
Senator McIntyre: Currently the court, in the case of impaired driving, may grant a discharge to a person under section 730 instead of convicting that person, but only if a prohibition order is made requiring the person to attend a curative drug or alcohol treatment program.
I note that proposed section 320.23 eliminates the option, eliminates that option, and the accused person would receive a criminal record.
Could you explain the rationale behind this, please?
Mr. Yost: The rationale, quite simply, is there are escalating mandatory minimum penalties for people who continue to commit this crime, whether they have gone through treatment or not. The situation with the discharge is it is not a conviction. Therefore, the person is not subject, necessarily, to the higher mandatory minimum penalties.
If you go through treatment and you get the benefit of not having a mandatory minimum penalty, fine. But stay on the straight and narrow. Don’t do it again, because if you do, you’ve got a previous conviction and you’re facing higher penalties and mandatory imprisonment. It’s just to avoid the fact that the discharge is not a conviction.
Senator McIntyre: But the big difference between the system under the current law and Bill C-46 is that it eliminates the chances of not having a criminal record. The accused will end up with a criminal record under Bill C-46.
Mr. Yost: Under the existing legislation, a mandatory minimum penalty eliminates the possibility of a conditional sentence. That’s how it exists today. That is why there is a mandatory minimum penalty. The person is not going to get a conditional sentence for impaired driving. That’s just not legal because there is a mandatory minimum penalty. What we have, in seven provinces that represent maybe 30 per cent of the population, because we don’t have the biggies, is a curative discharge which has no controls by the province as to what program the person will go into. And it results in a discharge so the person does not have a conviction against his record should he continue to drink and drive.
The Chair: If I may, I have a question.
My understanding is that the provision defining conveyances includes mopeds, bikes that require some external force to be set into motion. Someone operating such a moped near a high school, for instance, could be subject to random testing. In Quebec, 14-year-olds can operate mopeds. They would therefore be subject to the elements covered by the act.
Mr. Yost: They are motor vehicles. Currently, it is possible to require anyone operating such a vehicle to submit to a test if they are suspected of having alcohol in their system. I suppose it is possible to require someone operating an electric bicycle to submit to a random alcohol screening. That is the case right now. It is considered a motor vehicle. The definition of a motor vehicle has not changed.
The Chair: If the bill passes, however, random testing will be possible, which is not currently the case.
Mr. Yost: I hope police won’t focus their efforts on catching 14-year-olds in high school zones. That would be a question for police.
Senator Batters: I have a supplemental question on that. They may not concentrate on that, but one thing that came to my mind is golf carts. Is that something that would now potentially be considered under that particular provision of the act and subject to random breath testing?
Mr. Yost: It’s not potentially considered to be a motor vehicle. It is a motor vehicle under the legislation today. There have been people convicted, generally because they’re going down the middle of the road on a golf cart, weaving all over the place, which attracts people’s attention.
Senator Batters: But until now, until Bill C-46 passes, mandatory alcohol screening is not possible, so that could be very possible to have in the future.
Mr. Yost: If somebody is running down the road, they could do a mandatory alcohol screen without having to develop a suspicion.
Senator Batters: The road of a golf course, though. There are streets that are often right next to a golf course.
Mr. Yost: I’m sorry, senator, I might have to consult with the provinces on that. I’m not absolutely sure the police get onto private roads on golf courses and such. It’s not a public road, as such, it’s restricted — I’m sorry, I’m not clear in my own mind.
Senator Carignan: Yes, but the notion of a public road no longer applies. It was changed. Previously, it was on a public road, but that is no longer the case. Therefore, when I am operating my riding lawn mower, on my own property, I do not have to be screened. The Criminal Code no longer includes the notion of a public road.
Mr. Yost: Allow me to check on that.
The Chair: Could you check that Mr. Yost? I think it is important.
Mr. Yost: Yes. Rest assured, I am taking note of it.
The Chair: I am keeping track of the commitments you have made to provide some additional information.
Please be quick, as we’ve gone over time.
Senator Boisvenu: As I understand new section 320.21, the minimum punishment for someone who commits a first offence is a fine of $1,000, and the minimum punishment for someone who commits a second offence, killing someone, is imprisonment for 30 days. Is that correct?
Mr. Yost: That is the punishment currently provided for in the Criminal Code.
Senator Boisvenu: If an individual kills someone for a third time, they will go to jail for just 120 days.
Mr. Yost: That is the minimum punishment, if it were to be imposed by a judge at this time.
Senator Boisvenu: At the very least, that is what the defence lawyer will ask for.
Mr. Yost: It is possible. Yet if the judge were to impose that sentence, I wonder whether Crown prosecutors would appeal the decision on the basis that the sentence was inadequate.
Senator Boisvenu: Technically, that is the law.
Mr. Yost: You are correct, senator.
The Chair: Thank you.
I’m not releasing you, as they say in court, because we will have many additional sessions of witnesses and at some point we might like to call you back for additional questions or information that honourable senators will want.
(The committee adjourned.).