THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Wednesday, February 14, 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: Honourable senators, welcome to our meeting in which we will continue our study of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances), in relation to drug-impaired driving.
We have the pleasure and privilege this afternoon of welcoming witnesses from the Department of Public Safety and Emergency Preparedness, and, of course, the Royal Canadian Mounted Police.
I would like to first introduce Mr. Trevor Bhupsingh. Good afternoon. We have seen you around this table previously. You are the director general of the department. He is joined by Rachel Huggins, Manager, Policy Development. Welcome, Ms. Huggins.
And from the Royal Canadian Mounted Police, we have Assistant Commissioner Byron Boucher; Wade Oldford, Chief Superintendent and Director General, Forensic Services; and D’Arcy Smith, Special Advisor, Drug Evaluation and Classification Program.
Welcome to all of you. I understand you know the procedures. I will invite Mr. Bhupsingh to give his opening remarks and, after that, my colleagues will ask you questions.
Trevor Bhupsingh, Director General, Law Enforcement and Border Strategies Directorate, Public Safety and Emergency Preparedness: Good afternoon, senators, and thank you very much, Mr. Chair.
My name is Trevor Bhupsingh. I'm the Director General of Law Enforcement and Border Strategies Directorate at Public Safety Canada. I am here with my colleagues from the RCMP and Public Safety. We are happy to provide information on oral fluid drug screening devices. We know that the Department of Justice has already provided you with some details on the proposed legislation.
With the government’s commitment to legalize and regulate cannabis, there have been increased concerns regarding drug-impaired driving and road safety.
Although impaired driving rates have declined in the past 30 years, impaired driving continues to be the leading criminal cause of death in Canada, and drug-impaired driving is on the rise.
The results from various sources, including self-reported surveys on driving habits, indicate there is a relatively high prevalence of drug use among drivers. Conversely, there is a relatively low incidence of police-reported drug-impaired driving. Taken together, these elements show a clear need for improved detection of drug-impaired drivers on Canadian roads.
This committee has heard about the effort the government is making with new funding to provinces and territories to increase training of law enforcement officers in standard field sobriety testing and drug recognition experts to better detect drug-impaired driving. The funding to support provinces and territories is being rolled out, and police services across the country are already augmenting their training capacity in anticipation of cannabis legalization.
To complement existing efforts in the detection of drug-impaired drivers, the Government of Canada is also investing in the development and procurement of oral fluid drug screening devices. The potential use of these screening devices is consistent with the objectives of Canada’s Road Safety Strategy 2025 to enhance enforcement efforts and leverage technology and innovation. Also, the Task Force on Cannabis Legalization and Regulation recommended that the government support the development of an appropriate roadside drug screening device for the detection of THC levels and invest in these tools.
The first step is the legislative changes proposed in Bill C-46 which, if passed, would allow law enforcement to use oral fluid drug screening devices as part of the drug-impaired driving regime.
Oral fluid drug screening devices are successfully used in other countries, including the U.K. and Australia. Efforts to determine if oral fluid drug screening devices are suitable for Canada have been under way for some time. For example, in 2015, the RCMP and the Ontario Ministry of Transportation conducted a study on the reliability of several oral fluid drug screening devices. Three of these devices were deemed reliable in their ability to detect the identified drugs.
Based on the results of the study, from December 2016 to March 2017, Public Safety Canada and the RCMP, in association with the Canadian Council of Motor Transport Administrators, undertook a pilot project with law enforcement in seven jurisdictions across Canada, to test the use of two roadside oral fluid drug screening devices in the hands of police.
The pilot project had several objectives, including examining the use of these devices in the context of the Canadian climate and the current law enforcement practices, identifying the training needs to deploy the devices that would be appropriate and the standard operating procedures required for the effective use of the devices by law enforcement.
I understand that we have provided the committee with the final report from the pilot project. You will see in the report that the devices were able to be deployed correctly in various weather conditions, and law enforcement found them easy to use and were comfortable deploying the devices roadside.
The current technology for oral fluid drug screening devices has limitations. The devices can only detect the presence of a drug such as cannabis in the oral fluid and do not provide any information about the level of a drug in the blood, nor can they determine if the driver is impaired.
As this technology is new in Canada, the Drugs and Driving Committee of the Canadian Society of Forensic Science has developed some standards for the devices to meet before they can be recommended to the Attorney General of Canada for use by police. The callout to manufacturers to submit their devices occurred in November 2017, this past fall, and Public Safety Canada has secured the National Research Council as the screening laboratory for the devices.
It is important to note that the government is supporting further research on cannabis and driving impairment. Public Safety Canada has put in place a three-year agreement to undertake research to determine the correlations between cannabis use, driving abilities, level of THC in the blood and oral fluid.
This multi-pronged research project will build on research currently under way on driving ability and cannabis consumption that is being conducted by Bruna Brands of the Canadian Institutes of Health Research.
To conclude, it is essential that law enforcement across the country prepare for the new laws and that the public be well-informed about the impact of cannabis on the ability to drive, as well as the legal consequences of driving while under the influence of cannabis. Once devices are tested against the standards, the Drugs and Driving Committee will make a recommendation to the Minister of Justice and the Attorney General of Canada, who will consider that advice. Through a ministerial order, the minister will then list the drug screening equipment approved for use by law enforcement. Once approved, these devices will be another useful tool for law enforcement to help remove drug-impaired drivers from Canadian roads.
Thank you very much for the opportunity, and we are happy to answer any questions you may have.
The Chair: It is my pleasure to invite the assistant commissioner, Byron Boucher.
Byron Boucher, Assistant Commissioner Contract and Aboriginal Policing, Royal Canadian Mounted Police: The remarks were —
The Chair: Do you have any remarks? You’re part of —
Mr. Boucher: Public Safety.
The Chair: There is only one voice there. I will open the exchange with Senator Dupuis, deputy chair of the committee.
Senator Dupuis: Thank you for meeting with the committee today. When the Minister of Public Safety appeared before the committee, he talked about training for police officers, of course, but also about training for customs officers. How will the new system be put into practice as far as customs officers are concerned? In other words, will the regime provided for in Bill C-46 apply in the same way whether in the context of police officers and roadside screening or that of customs officers at the border? Will the same procedure be followed in both cases?
Mr. Bhupsingh: In terms of the detection of drug-impaired drivers, we want to make sure we arm our border officers at the CBSA with the ability to detect impaired drivers. Right now, they have the capability and ability to detect alcohol impairment, but they don’t have the tools in order to detect impairment by drugs.
Part of the announcement that the government had with respect to funding will go to not only law enforcement but also to the CBSA to train border officers. So as part of the new regime that we’ll have, not only will we be providing funding to law enforcement, we will also be providing funding to border service officers, in the way of training to identify impairment.
Senator Dupuis: Could you be more specific, please, in terms of how the process will actually work? Let’s take the example of a customs officer who suspects or considers that a particular case merits further examination. Will the customs officer have the devices you were talking about earlier? How will the customs officer use the devices? Will the screening be limited to the oral fluid test, or will the customs officer go further and demand a blood test?
Rachel Huggins, Manager, Policy Development, Public Safety and Emergency Preparedness: Thank you for the question. I’m sure the RCMP will have input as well.
As part of the process with regard to the training, the standardized field sobriety testing, which will have a new or augmented component already existing on the drugs that impair, will also be provided to the CBSA border agents. The idea is that they have the training element, which we will look to support with the new funding. The RCMP are working with CBSA to augment that training. That will give them the ability so that at the border, when they do have those suspicions, they will have the right kind of training to determine what those suspicions mean.
The devices, like with other police services, will be available once they’re available for use in Canada. They will be made available to CBSA as well, so those will be additional tools for them to use if there are impaired drivers at the border.
Mr. Boucher: I can speak to the Standard Field Sobriety Training. Just last week, the RCMP trained 24 members of CBSA in the basic SFST course. The go forward from that is that they will be next thought to be trainers in SFST so that CBSA will be able to roll this out themselves across the country.
Senator Boisvenu: Welcome to our witnesses. We’ve met on other occasions to discuss other pieces of legislation.
Two screening devices are available on the market: the Securetec and Alere devices. In both cases, the devices must be kept within a certain temperature range: 5 to 25 degrees and 15 to 25 degrees.
Northern regions have high rates of drug use, as well as high rates of traffic violations. What is your strategy for storing the cartridges so that police are able to use them? From December 2016 to March 2017, you had more than 1,040 marijuana-related samples. From those samples, were you able to determine whether the devices could be used in very cold temperatures?
Mr. Bhupsingh: Thank you very much, senator, for the question about the specifics around the pilot and the testing of the devices. I can just say that, in summary of the usage of the devices that were tested, they were tested across a range of conditions, including temperature below zero, and what we found with the devices that were tested is that they were operable in conditions that were below zero.
I’m going to turn it over either to Mr. Smith or Ms. Huggins to talk a little bit about the specifics of the testing. I'll let them respond to the other piece of your question about the storage with respect to the cartridges as well.
Ms. Huggins: As to the devices that were used, both the Securetec and the Alere, we went through a process of training the law enforcement officers that pilot tested the devices. There were certain things that we had to do with regard to the temperature. For example, the devices were tested in North Battleford, Saskatchewan, and in Yellowknife in January and February. Part of the pilot project was to figure out how these devices could be used, even with their temperature limitations, in very cold climates. We worked with the officers to identify what standard operating procedures would need to occur for them to deploy the devices correctly and for them to function in that cold weather. Out of the tests, the devices actually did function. The officers themselves, similar to other ways that they troubleshoot cold weather and getting their work done, came up with ways to ensure that the devices could be used effectively.
D'Arcy Smith, Special Advisor, Drug Evaluation and Classification Program, Royal Canadian Mounted Police: With what we obtained from the pilot study that Public Safety did we’re going to be incorporating that into the training modules that we’re developing at this point to deal with the cold temperature aspects. We’ve also, as the Drugs and Driving Committee, gone back to the manufacturers with some concerns about the temperature ranges, and we’re asking for the aspect that will be able to track and monitor whether or not things have been shipped or stored outside of the acceptable temperature range. But, when we train the officers, there are certain things we learned from the pilot that will be incorporated into training to help them to make sure that there won’t be any issues with the devices or the cartridges.
Senator Boisvenu: I’d like to thank you for your professionalism.
It is anticipated that the equipment will be delivered by the summer. Once the devices arrive at police stations, how long will it take for officers to learn how to use them?
Mr. Boucher: The government will have to go through a procurement process for the devices, but we are monitoring the testing and the research very closely and are prepping to start the training CTS, our course training standards, for whatever device is chosen immediately. So, by the time we’re ready to have a —
Senator Boisvenu: How long will it take to train a police officer on roadside testing?
Mr. Boucher: It is extremely simple, and we have devices here with us today if you would like us to demonstrate that.
The Chair: If you want an innocent, I am volunteering. Well, maybe later on.
Senator Carignan: My question is about new paragraph 254(2)(b), which requires the individual who is intercepted “to forthwith provide a sample of a bodily substance.” Could the individual assert their right to counsel at that stage? Before the driver provides a sample of a bodily substance forthwith, would they have the right to contact counsel?
The Chair: Mr. Boucher? It’s your service that might be on the front line on this issue.
Mr. Boucher: My understanding of the new legislation is that, once a demand is made, then, if you refuse to submit the sample, it is taken as a refusal and automatically an offence. So, on that point, yes, there is a right to counsel, but pre that —
Senator Carignan: In your view, if the driver refuses to provide a sample forthwith, they would not have the right to contact counsel.
Mr. Boucher: I think the offence is committed once the refusal is made. Prior to that, there is no offence. There’s a suspicion.
Senator Carignan: An officer has reasonable grounds to believe that a driver is committing an offence. The officer therefore pulls the driver over and demands that they forthwith provide a sample of a bodily substance for analysis. Does the driver have the right to contact counsel before submitting to the test?
Mr. Boucher: At any point during a criminal investigation, if an individual asks to contact counsel —
Senator Carignan: I know that, when the person makes the request. However, is the person granted their rights?
Mr. Boucher: They get read their rights once we believe an offence has been committed. So we’re operating under a suspicion at the point in time where you probably have other evidence in front of you, once you are looking for that sample, but not necessarily enough to proceed to the point where somebody would be asking for counsel.
Senator Carignan: My understanding, then, is that the driver is not granted the right to counsel.
Mr. Boucher: That's right.
Senator Carignan: Next, new subsection 254(3.1) reads as follows:
If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed…may, by demand made as soon as practicable….
What does “as soon as practicable” mean if it is believed that the offence was committed in the past three hours? The offence may have been committed two hours and 50 minutes ago. What is the time frame in that case?
Mr. Boucher: It would depend very much on the particular situation that you were in. If you were roadside somewhere, in many of the areas we police in, there isn’t even any cellphone service. So as soon as we can provide that contact with counsel, that would happen.
Senator Carignan: I am no longer talking about the right to counsel. I am referring to new subsection 254(3.1), which reads as follows:
If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed an offence…may, by demand made as soon as practicable, require the person….
The driver must either submit to an evaluation by an evaluating officer or provide a blood sample, which is a rather significant invasion of a person’s privacy.
The provision stipulates, however, that the demand must be “made as soon as practicable.” How do you explain the term “as soon as practicable” to police who are receiving their training? What exactly do you tell them it means?
Mr. Boucher: It depends greatly on the location. If we are in a large urban centre, then the ability to procure a blood sample would come much faster, depending on the process put in place once this becomes law and dealing with the provincial jurisdictions about having individuals available who can actually draw that blood. If you are in a much more remote area, it might be at a nursing station or anywhere else, for example, where a province or territory might set up emergency services to be able to draw the blood, or a hospital where a nurse can draw the blood.
Senator Carignan: I understand that, but the wording “as soon as practicable” implies that a certain number of drug recognition experts would need to be allocated according to a specific geographic breakdown, so as to cover as much area as possible fairly quickly.
Hence, what does the term “as soon as practicable” mean to you?
Mr. Boucher: As soon as we have someone available to draw the blood. It could mean a very different situation depending on what part of the country you’re in. I can’t put a timeline on it, but it would be as soon as we could do it. It won’t be a police officer who is drawing the blood. It will be a medical professional.
Senator Carignan: If that is what you’re telling police officers when you train them, we are going to have problems.
Mr. Boucher: That it’s not a police officer drawing the blood?
Senator Carignan: No. If, in the training you provide, you are not able to give police a clear explanation of the term “as soon as practicable” and you tell them that it simply means doing their best, I don’t think the courts will find that acceptable.
Mr. Boucher: The officers understand that currently in the kind of investigations that they undertake, especially for a force like the RCMP in many of these small communities, what’s available is certainly not what’s available in a large urban centre, whether it be medical services or the ability to draw blood, even to have a trained DRE member present. Some of our detachments are three members and there may not be a trained DRE officer there.
Senator Carignan: I realize that the decision between a drug recognition expert and a blood sample will be based on whether a nurse or a drug recognition expert is available.
Mr. Boucher: Again, it won’t be a drug recognition expert who would be drawing the blood but, rather, making the blood demand. It would have to be a medical professional, probably a different process that gets set up in each jurisdiction and provides that service to police forces that are there, whether it be emergency medical services or a phlebotomist.
Senator Carignan: So a police officer will not opt for an evaluation by an evaluating officer over blood sample testing based on the offence or the individual in question but, rather, based on the availability of the services.
Mr. Boucher: No, the drug recognition expert would have to believe that the person is impaired by a drug before there is a blood demand made.
Senator Pratte: Being on this committee is great because every meeting is like an instant law lesson.
Picking up on Senator Carignan’s questions about the provision containing the requirement to “forthwith provide a sample of a bodily substance,” I would just like to point out that the Criminal Code already sets out the same requirement in relation to a breath sample where alcohol is concerned.
Senator Carignan: That is why I don’t understand the reason he can’t answer my question.
Senator Pratte: I want to understand when these screening devices for drugs will be available. I’m somewhat mixed up here. They’ve not been approved yet by the National Research Council; am I correct? We’re still into that process; right?
Mr. Bhupsingh: Standards have been set by the DDC. They have put out a call for devices. Some of those devices have come in. There’s a lot of information that the manufacturers need to provide. There is a certain level in terms of the testing that needs to be done.
We’ve identified the National Research Council to actually test the devices. There is a series of tests, and we can talk about what those tests are, if you would like. Those devices won’t be tested unless they meet a minimal criterion standard that the Drugs and Driving Committee set out. We are expecting the devices to be tested. Whoever passes the standards, this month and next month, and once they are approved and tested by the NRC, the NRC will then send those devices to the DDC, who will make a recommendation to the Minister of Justice and the Attorney General of Canada about what devices should be listed and then procured. That’s the process that we’re following.
Where we are now is the devices are being identified, and we expect they will be tested this month and next month.
Senator Pratte: When do you expect to be able to tell police forces? Just give me a range of dates when you think you will be able to tell police forces these are the devices that they can buy?
Mr. Bhupsingh: So if there are devices that actually pass the lab testing and qualify —
Senator Pratte: Let’s hope so.
Mr. Bhupsingh: If there are devices, we would expect probably by the end of March those devices would be identified, and then that recommendation will go forward to the Minister of Justice and the Attorney General. Then and only then will a decision be taken as to what devices will get approved. Following that, the devices would be able to be procured. Looking at the time frame from now until the spring, we would expect that would happen some time in the month of late March or April.
Senator Pratte: I want to understand what role will remain for the drug recognition experts. I know there is money and an emphasis to hire more DREs considering that, with the new law, the peace officer that has reasonable grounds to believe that a person is impaired has the discretion to send the driver directly for blood tests. So the police officer, he or she, doesn’t need to go through the drug recognition expert anymore. If he has a reason to believe that the person is impaired, he can send them directly to the blood test. There’s no longer a need to go through the DRE. He can still do it or he can do both. That’s my understanding of the bill. However, he doesn’t need to do so. Furthermore, it’s much simpler to send the person directly for the blood test. I am wondering whether the DREs will be that much in use anymore.
Mr. Boucher: I can speak to that. DREs are definitely still needed. The device presently will probably be looking at testing only a certain amount for drugs, not all of them that a DRE is trained to determine that are present in an individual, so a much wider range.
In terms of gathering evidence, the ability to see a wider range of reactions and identifying a specific drug as opposed to a device that will just tell us about the presence, the evidence that the drug recognition expert will collect will lead toward an impairment on behalf of that individual.
Senator Pratte: What do you expect the typical situation will be? Will the police officer do both usually — both the DRE and the blood test directly — or just go through the DRE and wait to see what happens?
Mr. Boucher: I don’t know if there is much that’s typical in policing but, in evidence gathering, the best course of action is to get as much possible evidence as you can and do not just rely on the device. The device is only a tool to indicate the presence of a drug, not necessarily impairment.
Senator Gold: We’ve heard testimony about the higher incidence of impaired driving in the North and more remote areas, which sounds plausible, and the statistics bear that out. Minister Goodale, when he testified here, stated that the expectation and plan was to double the number of field sobriety trained officers. Even when we reach that number, will that be enough?
Will you comment on the challenges that you and your colleagues in the territorial and provincial governments will face in dealing in the more remote areas where one might assume there are fewer opportunities to leave your car behind if you have to get from point A or point B, notwithstanding that you consumed drugs or alcohol?
Mr. Boucher: There are currently 665 trained drug recognition experts across the country, a combination of the RCMP and every other police force. This year, 2018, we have another 17 courses that will be delivered. Next year, there will be another 18, with the ability to add more in that time frame. We’ll almost be able to double.
Another point I will make in reference to drug recognition experts is that the number of evaluations they already do is certainly not at what I would call a maximum amount. They can do more. The average is very low, I would say. Their ability to take on additional work and do more evaluations as a drug recognition expert is certainly there.
In reference to the North, one of our problems with the North is that not only is it challenging to police because of some of the crime in those very remote communities, but for the RCMP, we transfer people in generally on a three-year rotation, so sending in a person who is a trained drug recognition expert, they have a three-year lifespan before they’re transferred out again. So we need to do more planning up front to get the people we need into those communities. It’s not unlike anything else we’re doing right now when we’re choosing members to go to what we call limited-duration postings. We’re taking a look at making sure they have the training they need to go into those communities. We are in the process of mapping out for the RCMP where our drug recognition experts are located across the country and ensuring, as we fill these upcoming courses, that that is part of the planning about where we will place people, so those experts will be there to assist going forward with this legislation.
Senator Gold: Do you have any planning documents you can share concerning the distribution of the current officers you have or the plans?
Mr. Boucher: I don’t have the current breakdown, but that’s being put together now. We can provide it to the committee to show you where the DREs are across the country. We are happy to share that.
Senator Gold: Would that include or could you help us compile as well those from other services?
Mr. Boucher: That might be possible. The RCMP administers the DRE program. Where they are, when they are trained, where those services transfer people — like the OPP, where they move people during the course of their duties — I would not have access to.
Senator Gold: Thank you very much.
The Chair: Could you also provide the information in relation to the Aboriginal police forces?
Mr. Boucher: In the territories, it is just the RCMP. As far as I know — and I could be corrected — I don’t believe there are any standalone police forces. It is mainly in Ontario, Quebec, a certain number across the prairies, and I believe one in British Columbia. If they were part of our DRE training, the RCMP should have a record of that as well.
The Chair: Thank you.
Senator Eaton: I will go back to your speech, Mr. Bhupsingh. I would like you to explain to my very slow mind a few things here. The devices can only detect the presence of a drug such as cannabis in the oral fluid and do not provide any information about the level of the drug in the blood, nor can it determine if the driver is impaired.
I’ve heard from other witnesses that they really can’t tell you how long cannabis stays in the blood. So I can smoke tonight, and two days from now I drive, but residual cannabis will stay in the fatty tissues like the liver and other organs. If the devices can’t tell you about the level of the drug in the blood, nor can it t determine if the driver is impaired, how will this be useful to you?
Mr. Smith: With a drug like cannabis, when you’ve smoked it, or eaten it, because we’ll be looking into consumables next year, apparently, what we are mainly measuring in the oral fluid from cannabis is a deposition of the THC in the oral mucosa or the tissues of the mouth. It’s not a direct parallel coming from the blood into the oral fluid as it is with other drugs like cocaine or methamphetamine. What you have when you measure THC in the oral fluid is a recency of use. What you’ll notice in most studies that have been done with oral fluid is that you’ll see it from smoking or consuming for about up to six hours after the end of consumption, so you would not be measuring it the next day in oral fluid.
Senator Eaton: But Mr. Bhupsingh in his speech said you can’t determine if the driver is impaired by it.
Mr. Smith: Just having the presence of a drug, you could never determine impairment. This is why the drug evaluation classification program, or the DREs, is so important to us.
Senator Eaton: So they have to go together, hand in hand?
Mr. Smith: If you want to determine impairment, yes. If you want to use the oral fluid as simply a step for making a blood demand and then going to see if it’s over a per se limit, they’re useful for that. If they are only going to detect three drugs, that’s only three out of thousands of impairing drugs, which is why the DRE program remains a valuable tool. It detects impairment, not just the fact the drug is there.
Senator Eaton: Thank you, that’s very useful.
Another paragraph in your speech, Mr. Bhupsingh, is: “The government is supporting further research on cannabis and driving impairment. Public Safety Canada has put in place a three-year agreement to undertake research to determine the correlations between cannabis use, driving abilities, level of THC in the blood and oral fluid.”
It begs the question to me: Why is this happening after the legislation? Shouldn’t this have happened, and shouldn’t these results already be in and then followed by the legislation? Is this putting the cart before the horse?
Mr. Bhupsingh: Although there is not a direct correlation between the science of impairment and drug use, the government took the recommendation from the DDC, which is the Drugs and Driving Committee, which recommended that we could use per se limits. We also looked at other jurisdictions that currently use oral screening devices, whether that would be the U.K. or Australia, where they have used oral screening devices to help construct reasonable grounds to suspect that somebody is impaired.
As we look forward, you’re right: I think in a perfect world, it would have been great to have the link between drug usage and impairment that we could measure. The science —
Senator Eaton: It might be different for everyone? You and I are different sizes and weights, so would it not be different for me than it is for you, for impairment?
Mr. Bhupsingh: Why don’t I turn to D'Arcy to talk about the size or level of nanograms of THC in the blood vis-à-vis body size. It might be informative for the committee in terms of determining why we’ve gone at a range instead of a specific level.
Mr. Smith: Basically, the issue we ran into with THC is that it’s going to depend upon the individual, whether you’re male or female, your body size and the amount of fat you have in your body, because THC is fat soluble. This is why we have the issue with residual concentrations of THC in the blood long after a person has finished smoking.
The aspect that happens as well that’s probably even more important is the tolerance of the individual and how frequently they smoke or consume the drug, if they’re eating it as edibles. We can see it’s not going to be uncommon that we’re going to have people who are on a medical marijuana regime who are going to have a baseline level of THC because they are consuming it every day to deal with their medical issues.
You’re going to have people who have THC in their blood for a long period of time, and then you will have an infrequent smoker in whom you may be able to measure THC in the blood up to a day after they’ve finished — someone who is just sharing a joint at a Friday night party or something like that.
Our challenge with dealing with creating per se levels and providing that information back to the government is what the research says. Unfortunately, the research is not great because most of it that has been done is hampered by the fact that it’s still a Schedule I drug according to the DEA, and for a lot of the researchers in the U.S. it’s very difficult to do the actual tests that need to be done.
So if you look at the road studies that have been done, you can find the range of impairment for individuals is less than their level of detection, say 1 nanogram per mil, all the way up to measuring impairment in people at greater than 20 nanograms per mil.
You have a broad range and, because you don’t know who you’re going to be dealing with in any particular event, you don’t know that person’s history of use of marijuana and you don’t know when they last smoked it. All of those are factors.
We made the suggestion to the government that you need to look at a range of options on how to deal with this. We provided the government’s Drugs and Driving Committee with a list of the pros and cons of different levels and what the literature says. We didn’t tell them what level to pick but presented a range of options so they could decide how to use this as a traffic safety issue in Canada.
If you feel that you want to be zero tolerance, there’s evidence to support that many individuals could be impaired with any measurable level of THC you find in their blood, such as infrequent users, young users, people who are just learning to drive and those types of individuals.
Since you don’t know the history of the individual, apparently, the government, in its wisdom, decided to go with a multi-tiered system at 2 nanograms, which is the lower level that you would look at. Then, above 5, yes, you’re going to be able to demonstrate impairment in a lot of individuals. So it was just pros and cons, and the government made their choices on that. But it is the issue of the individual differences that creates the challenge for us.
Senator Eaton: Thank you. That’s been very helpful.
Senator Gold: I take it from your explanation that, as we heard, despite what we don’t know about levels of drugs and impairment, the recommendations and the government’s decision was very much a science-based approach. This was not just plucking things from the air. Would that be fair to say?
Mr. Smith: That’s quite correct. At DDC, we spent the better part of a year looking at the recommendations for per se issues on this.
Senator Gold: Thank you.
Senator Sinclair: I’m trying to remember all of the evidence we heard when Senator Carignan’s bill was in front of us. It doesn’t seem to be consistent with what we’re hearing here.
The Chair: Science evolves.
Senator Sinclair: Not this quickly. Nonetheless, I will pursue that another time.
I wanted to talk about two things. They both have to do with the issue of training, and one has to do with the issue of racial profiling. I wonder if you might talk about the training that’s being provided to officers. You just mentioned that training was recently being provided to border security officers. Can you tell us whether the issue of racial profiling, understanding what it is, how it works and how to avoid it is provided as part of the training package in this scenario as well, with the additional powers that are being granted here?
Mr. Boucher: I can say that I don’t believe there is anything special for racial profiling in the SFST training. Certainly, this question was asked when Deputy Commissioner Brosseau was here. Those answers are in the approval process and they’re probably just about ready to leave the RCMP and work their way back down here.
I will say that I looked at them earlier and there is an extensive amount of training that members get, both on bias-free policing and on a variety of different training over the six-month period during which they’re at the Depot training academy for the RCMP, and also in the field afterwards.
That package is on its way here and it will allow you to see everything that RCMP members, in general, have to ensure that nothing like that would happen as part of their work to enforce impaired driving.
Senator Sinclair: My nephew has been part of the training for RCMP officers, so I know a bit of what they are receiving. I’m interested in knowing what other officers are getting, because it’s not just RCMP officers who are going to be enforcing this law. It’s going to be provincial officers, municipal officers and border security officers, and I’m not sure what kind of training they’re getting.
Mr. Boucher: I can only speak for the RCMP, senator.
Senator Sinclair: I know that.
Next, I have a comment. Incidentally, people who are charged with driving while under the influence of alcohol do have the right to counsel before the breath test is demanded of them. If it can be exercised, they are given the time to exercise it, so you might want to find out how it’s going to work in this scenario as well.
I wanted to know about the training that’s being provided to drug recognition enforcement officers with regard to the experience they’re going to have with indigenous communities. If your officers in the RCMP, for example, are going to be doing drug recognition work with indigenous communities, are they being provided any specific or special training with regard to working in those indigenous communities?
Mr. Boucher: There isn’t anything specific within the DRE program that would deal with policing in indigenous communities, but any officer within the RCMP who is policing in indigenous communities does get extra training going in there. That depends, in many cases, on the area of the country we’re in so that it’s specific to the culture and history of that particular community.
Senator Sinclair: It’s just that I understood the drug recognition officers were not necessarily going to be regularly assigned to communities in the North; they might be taken in for enforcement purposes.
Mr. Boucher: Our drug recognition experts are spread across the country for the RCMP and, like I said earlier, in the go forward for the training, we are going to take steps to ensure that there’s proper coverage across the country. Our challenge with many of these remote communities is the limited-duration postings and the transfers in and out. There’s a lot of pre-planning that goes into choosing the people who go in to make sure they have the necessary training to be able to carry out their duties.
Senator Batters: First of all, to Senator Sinclair’s point on the right to counsel about roadside testing for drug-impaired driving, why don’t the people on this panel know that answer? I imagine that for people who are getting trained on this particular issue, which is potentially very soon going to be the law in Canada, that needs to be a key part of it. Why don’t you guys — the people who are here to testify about this to us today — know that?
Mr. Boucher: I would say that at any point during a criminal investigation, if a person asks for counsel, then they would get their right to counsel. They would have it.
Senator Batters: Correct. But this is going to be a major routine part of every particular roadside screening test, and I’m just really surprised that we don’t have a quick answer. When Senator Carignan first asked it, I thought maybe it just wasn’t being understood properly, but then when Senator Sinclair reiterated it —
Mr. Boucher: I’ll say something was lost in the translation from my earpiece when Senator Carignan was asking the initial question. But certainly from the RCMP perspective, during any criminal investigation, when you’re asking for a right to counsel, then we make available counsel.
Senator Batters: You make it available, but are they informed of their right to counsel? You’re not sure; right?
Senator Carignan: So that’s not a translation problem.
Senator Batters: No. I’m not sure why people on this panel don’t know that.
There were a few times, when Senator Carignan was asking your panel detailed questions and technical questions before, when there seemed to be confusion. There seemed to be a kind of reluctance to answer some of those questions, and maybe part of it, Mr. Boucher, is that you referenced on a few occasions that there are major challenges involved in testing for drug-impaired driving in Canada, given the remote, sparse locations that the RCMP polices in some areas of Canada.
Considering all of this, with Bill C-46 and all of its provisions, all of its kinks to be worked out and all of its rigid training requirements to try and improve impaired driving in Canada and crack down on this big problem that we have, why wasn’t it brought so much before the legalization of marijuana, instead of basically at the same time or potentially coming into force in some ways afterwards?
Mr. Boucher: We already have drug-impaired driving in Canada.
Senator Batters: Of course, yes.
Mr. Boucher: We’ve been dealing with it for a considerable amount of time, so we have DREs out there. They’re being used. It’s being processed. The blood demand part is only there if they can’t provide a bodily fluid sample.
I’ll go back to the question that we were asked about counsel. I would say, as we are discussing this, the minute that an officer is in the process of gathering evidence, we would be informing you ahead of time that you have the right to counsel.
Senator Batters: They’re gathering evidence right from the moment you roll down your window; right?
Mr. Boucher: Yes.
Senator Batters: I guess I’ll leave it there.
The Chair: For the second round, I remind honourable senators that we have a maximum of 10 minutes.
Senator Dupuis: If I understand correctly, the approved screening devices that will be rolled out in the coming months are meant to help police officers screen for the presence of drugs in human saliva or blood. As you so rightly pointed out, you are already intercepting drivers who are impaired by drugs, alcohol or both. Can you tell us how the new regime under Bill C-46 will help you do a better job?
Mr. Boucher: The device, for us, is a tool only for being able to confirm for us the presence of a drug. Really, when an officer is dealing with a subject, it may be from the point that you’re behind a vehicle and you’re noting driving evidence itself, whether that be coming across the centre line, turning in a wide circle or running over the curb, headlights not on. That evidence gathering to that point proceeds once the vehicle is stopped.
When a vehicle is stopped and you’re interacting with the driver, there could be all kinds of reasons why the driving is happening that way. Maybe they got their cellphone out and they’re texting or something. It might not necessarily be impaired driving. But that interaction with the driver begins that process of trying to determine whether or not there is something that you would want to carry on further. For us, it could be things like slurring of the speech, asking for the driver’s licence and being handed a picture of their kids.
The way that they react to us shows us their ability and their level of impairment, and that leads up to the device, which is another tool for us. It only indicates the presence of a drug, not necessarily impairment. It’s all that other multitude of evidence going together. When the training is developed to go with this, we would be certainly advising as part of the training that gathering of that evidence is the most important part, not necessarily that you’re getting a positive reading for drugs on the device.
Senator Dupuis: My next question may be somewhat technical. On page 11 of your pilot project report — page 14 of the French version — you say that, based on the drug-positive samples collected, the most common drug found was cannabis, in other words, in 61 per cent of cases. We seem to be better able to detect cannabis than other types of drugs. Did I understand that correctly?
Mr. Smith: Basically, it depends on what your main drug problem is and the area that you’re dealing with. Cannabis is very good for oral fluid screening, as are cocaine and methamphetamines. As part of the choice on what drugs that the Drugs and Driving Committee looked at for which drugs we should be utilizing, it was what drugs we see on the roadside the most. That was basically cannabis, cocaine and methamphetamines. Those are the ones we looked at incorporating into the oral fluid and, fortunately, those are also drugs that the testing has demonstrated are very applicable to this type of testing.
Senator Boisvenu: Have you already given the department a recommendation as to which device to use?
Mr. Bhupsingh: No.
Senator Boisvenu: When do you think you will make that recommendation?
Mr. Bhupsingh: Those devices won’t be a suggestion for the Minister of Public Safety. There will be, through the DDC, advice given to the Minister of Justice and the Attorney General. As to which device —
Senator Boisvenu: When will you be doing that?
Mr. Bhupsingh: That will happen after the lab testing is done for the devices —
Senator Boisvenu: When do you expect to do it?
Mr. Bhupsingh: I think that will probably happen sometime in the next month, so March. I think I said for the committee here that it would be the end of March, probably, early April.
Senator Carignan: This question may be more for Mr. Smith, and I’ll tell you why. I have a problem with the 5-ng limit. Everything I have read indicates that just as many people may not be impaired at that concentration of THC, that impaired individuals could have concentrations above or below 5 ng. I also read that the concentration of THC in the blood drops very quickly after cannabis use, especially when it is smoked.
I am trying to see the rational argument for setting the offence at that concentration. In other words, I am trying to figure out whether the limit is merely theoretical, whether it is meant as an equivalent to the 80 mg in the case of alcohol, or whether it is really intended to catch impaired individuals. There is clearly no rational link between the limit of 5 ng and impairment.
Given the current scientific results, would it not be preferable to follow in the footsteps of other jurisdictions? Police use the device for roadside screening. When the presence of a substance is detected, the case is referred to a drug recognition expert, who will determine whether the person is impaired. That would reflect a rational progression in the arrest process. It would mean that individuals who use cannabis for medical purposes, who are not impaired and who have a baseline concentration above 2 ng would not be in violation of the Criminal Code.
Have you recommended to the department the use of such a gradual step-based approach, without setting a 5-ng limit, or discussed the possibility with department officials? That option may help prevent legal challenges, both on the merits of the offence and on the fact that it does not apply in the case of individuals who use cannabis for medical purposes.
Mr. Smith: Initially our recommendation — and, again, the chair of the DDC is sitting by the wall, so I’m not trying to speak out of turn because Amy is going to appear before you after us — was we shouldn’t do it per se for cannabis. If you look at all the literature, the recommendations from Society of Forensic Toxicology and the AAFS, as toxicologists, we’re not big on per se numbers for drugs because drugs are very different from alcohol on how they impair people, the tolerance and the wide spectrum of tolerance that exists between different individuals.
When it was suggested to us that the government would still like to see some numbers, our issue was we studied it and we came back and said we’re not going to suggest to you what numbers to pick. We will not do that. However, here are several numbers, and here are the pros and cons of those numbers. It’s up to the government to make policy, not the Drugs and Driving Committee. We’re simply there to provide the best scientific advice.
Regarding looking at 5 nanograms, you mentioned one of the studies talked about people above 5 nanograms. You look at the same study and you’re looking at impairment. You see a lot of people below 5 nanograms who are impaired. So where do you put that filter? Do you say we don’t want to catch a bunch of people under 5 nanograms, so we’re going to make it higher? But then all these other people who are impaired. That’s a safety issue that the government has to decide, not us as scientific advisers.
Senator Carignan: Can you give us two examples of thresholds you proposed in relation to the device?
Mr. Smith: As I said, we dealt with it from a perspective of not setting a per se limit. When the government said they wanted numbers, we provided a series of numbers with the pros and cons, saying that if you pick 2, these are the issues you’re going to have. If you pick 5, here are the challenges on people being impaired or not being impaired. If you pick 10, this is what is going to happen on the pros and cons of those issues.
That becomes a policy issue for government, not for the Drugs and Driving Committee to deal with. We’re just sitting here saying, “Here are the pros and cons if you deal with per se, the challenges you’ll face dealing with people who may not be impaired at that level or the people who are going to be impaired below that level that you choose.” That’s a government policy issue. We just provided the advice.
As far as the initial part of your question about whether it be better to put these people to a DRE after testing positive, I’m in full favour of that aspect. I’m a drug recognition expert and a toxicologist. I like drug recognition experts because we detect impairment. We don’t deal with numbers. As a toxicologist, I get a blood sample in the lab and I get a specific number for that, but I can’t tell you whether that number, in absence of other evidence, means the person is impaired or not. Someone might be; someone won’t be.
Take drugs like methadone. People on methadone treatment might be getting 100 milligrams as a dose or they might be getting 1,500 milligrams as a dose. The person on the 100 milligram dose may be impaired. The person on the 1500 milligram dose may not. It all comes down to individual tolerance.
I can’t put words into the mouth of government as to why they choose the numbers they did, but they were given a full set of advice. We spent over a year working on this issue for them, saying, “Here is what the science says. You make your policy choices.”
The Chair: I think the answer is pretty clear for food for thought.
Senator Pratte: Mr. Bhupsingh, you opened the door to the possibility that maybe after the tests, no screening device would be approved. What if that happens?
Mr. Bhupsingh: I think we won’t have an oral fluid screening device until one passes the test, that’s for sure. We know there are a number of devices out there that haven’t been submitted, so I’m hopeful. When the DDC produced their criterion standards, a number of different companies were interested but probably weren’t able to meet the first round of standards and criterion and are probably going back to try to meet those standards and criteria.
In the hypothetical, since you’ve asked it, I’m assuming that more and more devices will come onto the market and eventually we’ll have an oral fluid screening device that will be approved and will be another lever for law enforcement to use in terms of helping with detecting impairment.
Senator Pratte: Eventually, there will be devices. However, suppose that for a period of six months or a year, we don’t have this device. The presence of screening devices is a very important tool on which part of Bill C-46 is founded. We would be deprived of that tool for a certain period of time.
Mr. Bhupsingh: That’s correct. We would focus on the SFST training and DRE training in the short term. The investment that the federal government is making is over a five-year period. If there’s a delay in the oral fluid screening devices, I’m hopeful that, in the short term, a device that would be approved and met the standards and the criteria would be approved relatively quickly.
Senator Eaton: One thing that really bothers me is that you can randomly stop with this new bill and check a person and give them a breathalyzer test, if I’m correct, for alcohol impairment. However, if you stop me and I’m eating my sandwich — I’m a long-distance truck driver and I’ve just had my brownie laced with cannabis — you can’t randomly test me. If I don’t have red eyes and I’m not driving all over the road but I’m just minding my own business driving down a street, you can’t do that. As Mr. Smith said, the more you use, you establish a greater tolerance. Don’t you feel that there should be some kind of random testing for bus drivers, train engineers, pilots flying 300 people at a time and long-distance truck drivers? Because it’s not in this bill.
Ms. Huggins: I think Justice is probably better placed to talk about the particulars of that question.
Senator Eaton: They won’t. I’ve asked them. I want to know, because you’re on the ground, or certainly Mr. Boucher is on the ground and Mr. Oldford is on the ground. Do you not feel it would be a good preventive move?
Mr. Boucher: As has been discussed, it’s always a concern with random testing.
Senator Eaton: You’re not concerned with alcohol random testing.
Mr. Boucher: In private industry, with any individual who is operating mass transit, yes, it would be a good idea to have that as part of the legislation.
Senator Eaton: Thank you.
Senator Gold: I want to return to the scientific basis. I appreciate your comments and the candour with which you described the process by which you had advised the government. I have a background as a constitutional lawyer, and so I worry about the reasonableness of measures, especially ones that are intrusive on individuals' rights.
As I understand it, though — and please correct me if I am wrong — the science establishes that cannabis has impairing functions on those faculties relevant to driving. Although differences in tolerance levels and body types and modes of ingestion make it impossible to draw the links, there is a point beyond which statistically — and this is the question — a significant number of people, all things being equal, will tend to have some impairment above a certain level, all other things being considered. There is some basis for that, is there not?
Mr. Smith: There’s a basis for that in the general sense, yes. The problem with a drug like THC is trying to find what that number is.
Senator Gold: Fair enough.
Mr. Smith: You can look at a lot of the research that’s being done. There was a study done looking at over 1,000 individuals, I think, with their THC levels and performance in impairment divided-attention tasks. You didn’t see a real difference whether they were above 5 or below 5. You saw the impairment across the board or you saw some —
Senator Gold: I will get to my question, chair. I apologize for the time I'm taking. But if the government makes a policy decision that you should not get behind the wheel if you have ingested any amount of cannabis, as a matter of public safety and prudence, then would you agree that it would be rational for them to pick a number that has some scientific basis? If it’s imperfect, it will be over-inclusive and under-inclusive, so to say. Nonetheless: “If you ingest, take an Uber or a taxi, but if you don’t, we’re going to set some limits based on the best judgment we can make that statistically makes some sense.”Should I be satisfied that’s a rational, scientific basis on which to make a public policy choice?
Mr. Smith: In my opinion as a toxicologist, that is a rational basis. You have the choice of finding a number that you can demonstrate that impairment can exist in some individuals, a higher number where greater impairment exists in a greater percentage of the population, or you can pick zero tolerance, which is what a lot of states and other countries do. They just say, “If we find it, too bad. That’s the end of it.” There is no aspect at all. To me, that is more setting drug policy than it is dealing with impaired driving. At least when you pick a number with a drug like cannabis, you are at least bringing some of the science of impairment into that discussion.
Senator Gold: Thank you.
The Chair: Before I thank you on behalf of my colleagues this afternoon, you referred in your opening remarks to the standards that have been developed. Could you provide us with the standards later on, or give us an idea of what those standards are that you have recommended to those who would make the instruments to serve them so that we have an idea of what kind of system we’re talking about?
Mr. Bhupsingh: Yes. We do have a copy, but I know our colleagues from the DDC are appearing right after us here, so we’ll ensure that either we get you a copy from Public Safety or the DDC might provide you with a copy.
The Chair: Thank you.
Finally, as you know, we have many viewers watching our discussion this afternoon. You piqued my curiosity by mentioning that you have a system with you. Could you give us a 30 second demonstration of it? There are many volunteers.
Ms. Huggins: There are two devices. This is the Alere. It’s quite easy to use. It’s hand-held and part of the pilot project. It has a swab that comes in two parts. Basically, part of the requirements from the standards for the DDC is that it has a reader. I will show you the other one, because you can actually do the test separately. It comes in two parts. This piece goes into the device, and then this is actually the swab that would get the saliva. So you swab it around your mouth, and it turns blue. Once it turns blue, you insert it in and then a timer starts. This is a five minute device. They used to be eight. The technology has gotten better for five. It ticks away, and then it will give you a reading.
I printed out what a reading would look like. It has a portable printer, and all the information comes out on a little printer. It’s stored in the machine as well. It tells you what drug. You can program them for the officer to not have to put in a name. You can put the date of birth of the person. All of the information can be stored — the device holds that information — and you can transfer it.
Senator Dupuis: Who administers the first test? Am I administering it to myself, or is the officer administering the test?
Ms. Huggins: That’s part of the standard operating procedures. We had the officers do both when we had the pilot project. Some officers felt it was easier to give the individual the swab to collect, and others felt that it would be fine if it was a non-threatening situation.
The Chair: The reading would be on the three drugs that Mr. Smith has mentioned?
Mr. Smith: When the device is passed through the testing procedure, it will be just for those three drugs. The devices, as they were utilized, were for THC, cocaine, methamphetamine, amphetamine, opioids and benzodiazepine, so that’s what the manufacturers were doing there. But when they’re going to be evaluated and used in Canada, it will be just for THC, cocaine and methamphetamine.
Senator Carignan: Why three when the device can do six?
Mr. Smith: There are numerous reasons. One is that some of the drugs do not come across very well. Benzodiazepines had a very poor relationship coming across and being positive in the oral fluid as well as in the blood samples taken. With the opioids and benzodiazepine, part of the challenge there is that those are therapeutic or prescription drugs, and you can have a 10-fold or 100-fold window for the therapeutic range. So someone who might be taking 100 milligrams of Xanax, hydrocodone or oxycodone might have a certain level. Another person may need to take five times that much to deal with their pain or their issues. Prescription drugs were a real mess to get into when you’re trying to measure, especially with an oral fluid.
Senator Carignan: Is there an issue with discrimination for those who use medical cannabis?
Mr. Smith: The THC in medical cannabis comes across well.
One thing that has not been really mentioned in the discussion is that we’re not going to be doing random drug testing. There is a reason why the officers have pulled the people over. Then more evidence would be gathered, as Mr. Boucher said, about why you would go to using the device. If you pull a car over because there have been issues with driving, the person rolls down the window and you get pot smoke coming out of the window, you will probably think about using the device on this individual. You would have more grounds. If it’s just a tail light out, you pull them over and there’s no indication or other signs of drug impairment, you might not use something. Generally, there will be other indications before you move into that step. It is not just in isolation, because that would then be random drug testing.
The Chair: Ms. Huggins, I see you have another briefcase. We are going over time, but I think all the senators know this information is useful.
Ms. Huggins: This is the second device that we used in the pilot project. It’s called the Securetech. The difference with this one is that it actually has a swab piece that scrapes on the tongue, so it’s a little bit quicker than the one that has to collect the oral fluid. It goes back in. When you break the ampule and let the fluid, you can actually see, right on this piece, whether it identifies a positive for a drug.
This one is supposed to go into the reader. That’s one of the reasons for the reader. It’s hard to see the lines on the actual swab, so the DDC has said that all devices should have a reader. It does the same thing. You put it in, it goes through a process and then, once it’s done, it prints out what has been detected in the saliva, if anything.
The Chair: Thank you very much. I think that was most helpful. We went over time, because I thought the honourable senators would want to see that.
Thank you very much, Mr. Bhupsingh. We will see you some time later on, as we say, on the road of life. Thank you, Commissioner Boucher, Mr. Oldford, Mr. Smith and Ms. Huggins.
Honourable senators, we have our next panel. We have the pleasure this afternoon of having representatives from the Canadian Society of Forensic Sciences, Daryl Mayers, the Chair, Alcohol Test Committee; and Amy Peaire, Chair also, Drugs and Driving Committee. Both of you are certainly welcome. If you had the benefit of listening to our previous group of witnesses, you certainly can understand where our interest centres.
The floor is yours for your presentation, and then we will have a free flow of exchange with you.
Daryl Mayers, Chair, Alcohol Test Committee, Canadian Society of Forensic Sciences: Why don’t I go first because unlike the two main courses on the outside, I’m like the sorbet between because I’m going to talk about alcohol, not cannabis, not drugs.
The Chair: It’s happy hour, so you can go ahead.
Mr. Mayers: First, the Alcohol Test Committee thanks you for inviting us, and we’re from the Canadian Society of Forensic Sciences. We’ve provided some scientific advice to the Minister of Justice with regard to blood alcohol determinations for the past 50 years. Well, over 50 years now. We’re dedicated volunteer scientists. We have expertise in breath and blood alcohol testing, and we’re committed to maintaining the consistently high alcohol testing standard that has become an accepted norm in Canada.
We do instrument evaluation, just like the DDC will do. We make recommendations for the management of breath-testing programs and training, maintenance, equipment, recommendations of procedures to be followed by the qualified technicians to ensure that the blood alcohol concentrations are accurate and reliable. All of our recommendations are on our website, the Canadian Society of Forensic Sciences website. I provided Madam Clerk with the URL for that, and I think that she may have given that to the committee. I hope so.
We’d like to comment briefly on areas specific to the alcohol testing world. We’re not going to delve into anything else. What my committee has decided to do is to go through the bill as it stands as we see some aspects that are important to us.
Starting with 320.27(2), mandatory alcohol screening, the first and most important thing I want to say about that is that the ASDs, the approved screening devices, have been used, deployed and accepted in the courts for the purposes of detecting alcohol for years. They are both accurate and reliable and, from a solely scientific perspective, there’s no downside, from our perspective, with the implementation of this initiative. There’s no scientific reason it shouldn’t go forward. I’m not speaking to other reasons, just the scientific.
Following that along — and I’ll try to go reasonably quickly — we looked at some of the sections, for example, 320.28(1)(a)(ii). This is where we hesitate because we see that it’s in the opinion of a qualified medical practitioner or qualified technician taking the samples necessary to enable a proper analysis. We’re having difficulty with that because it seems to shift the onus onto the medical practitioners, and they’re not really subject-matter experts for the analysis. I recognize that this is in the Code as it stands, but we take this opportunity to suggest as our rationale that that not be a part of this bill. We hesitate to allow non-subject-matter experts to perhaps insert their opinions where it may not be wise.
Likewise, in the same section, on the retention of samples, the way the bill is formulated, it is suggested that a sample of blood be retained but, once again, the onus is on the person who takes the samples for the retention. Our belief, from the ATC, is that that onus should not be on them. It should be, logically, on the police officer who has made that demand and is capable of maintaining continuity and capable of understanding that or, alternatively, the forensic laboratory. We are also capable of doing those processes.
The other part of that section that gives us pause is that the failure to comply with subsection 7 or 8, which is the demand or the taking of the sample, does not affect the validity of taking the sample or analysis made of the sample. We are totally on board with that. I’m not going to bring coal to Newcastle and discuss constitutional law because that is not my expertise, but we would suggest that, those two being said, there is still an aspect of admissibility that may be problematic and we would suggest, possibly trampling on the Charter — I don’t know. I’m not a lawyer. We would suggest that it could be introduced that it doesn’t affect the admissibility. It may, in fact, affect some aspects of the analysis or what have you, depending on what is taken, but we want to have the opportunity to do the analysis because it may not be inculpatory. It might be exculpatory for the individual.
Now, a positive thing I’m going to say: Under 320, I want to tell this committee, tell Parliament and tell Canada in general that all approved instruments in this country have gone through rigorous testing. Our testing standards are on our website, and I will say, as the chair of the Alcohol Test Committee, that they are both accurate and reliable for the determination of a person’s blood alcohol concentration. I just wanted to be clear that we are fully behind that.
Moving on to the second section, and that was 320.31, 320.31(2) gives us a little cause for concern but some cause for optimism as well. The cause for concern is the phrase “. . . evidence tending to show that the analysis was performed improperly.” That really kind of takes us back. I’ve been in the business for a long time, and it takes me back to what I'll talk about later, the disclosure wars. It’s worth noting that we’ve instituted all kinds of checks and balances on disclosure for breath testing but, with this, where it’s only an accredited forensic laboratory — these are the only people who do these analyses, not just blood but also drug analyses — I think this allows possible disclosure applications that may or may not be relevant to the actual purpose.
I’m going to get now to 323.14, and I hope this is the one that you give me because I have to come back to my committee with something that is positive. I think this is a simple fix. As the committee has probably seen, the bill says now that the blood alcohol concentration must exceed 20 milligrams of alcohol in 100 millilitres of blood. When we use truncated results, meaning that you drop the last digit -- so 29, 21, 22 are all 20 -- it has to be in excess of that, which means it has to be 30 or more. That’s not what we intended, and I will ask that we mirror the rest of the code by saying “equal to or exceeds 20,” because 20 is totally applicable. Going below there, it’s a problem doing a read back, but 20 is fine, so “equal to or exceeds” would be perfectly fine and the ATC would support that change in the bill. We’re not sure what would happen in the courts with that aspect. It will take some adjustment.
ATC wants this committee to know that we really don’t feel there’s any possible way that there is going to be a court coming to a conclusion about blood alcohol that is going be prejudicial to the accused person, so it’s not going to be bad for the person if we ask our judges to add five every half-hour. The question we have is: What will our judges do when we don’t have a perfect half-hour interval? One hopes common sense jumps in, but one doesn’t know, and that will be something to be considered and will probably be something that we will litigate to its end.
Moving forward quickly to another section that I hope you give me, 320.34 institutes the aspects of what must be provided in disclosure for the approved instruments. This is almost what our 2012 position paper set out — and I say “almost.” The difficulty is, under (c), the bill says “any messages.” Our recommendation in our 2012 position paper was “exception or error messages,” and there is a distinction. There are many messages that happen on these instruments that are not notable to the operation of the instrument. For example, one of the approved instruments says “please blow.” With the current bill, the way we see it is if the officer shows up in court and has not annotated in his notes that it said “please blow at 2022 hours,” and that was not disclosed, there may be an argument to be made for a full answer and defence, no disclosure, things of that nature. And it’s not material to the science. If we can substitute “exception or error messages,” that would be helpful from a scientific point of view, at least from an Alcohol Test Committee point of view.
I believe the clerk has copies of our position paper for the committee. I supplied it in both official languages.
Under 320.34, once again it’s my doom and gloom mentality when it comes to disclosure. We have set out clearly what disclosure is needed to determine the instrument is in proper working order. That has been litigated and is settled law in some provinces and is currently before the Supreme Court in other cases. But it just seems (3), (4) and (5) reopen the door to anything else you want, go ahead. Now, if they are meant to only address other disclosure that the person should rightly get, that is fine, but we had some trepidation as to whether or not the disclosure was being made more wide ranging.
Finally, I will comment briefly on the transitional provisions. Right now, I am an analyst under the current code, 254.1. Right now, that means I can do a blood alcohol analysis on blood samples or the alcohol standard testing for the approved instruments that is a necessary part. The provision now will only grandfather me into doing blood testing. That means I will have to get another designation, which is not the end of the world, but there seems to be little reason to do that. If we could just add the subparagraph “is deemed to be designated as an analyst” under subparagraph 320.4(b)(ii) and (c), that would fix that for me. All the younger people coming up will have two desigination, or different designations than me, but for the old dogs like me, this is something that I think would be easily altered and could make a difference to us, albeit perhaps a small one.
Those are the specific points that I would like to bring to the committee, and I thank you for your attention to that. Of course, I am available to answer any questions that I can.
Senator Dupuis: Thank you, Mr. Mayers, for being here today. You made it clear that you would be discussing only alcohol this evening. Did the Alcohol Test Committee discuss Bill C-46 with the Drugs and Driving Committee? In other words, Bill C-46 contains impaired driving offences in relation to the consumption of alcohol, drugs or a combination of both. Did the two research committees work in isolation, or did you come together at some point in the course of your work, if only to discuss this particular aspect of Bill C-46?
Mr. Mayers: Thank you for your question. The answer is that we do have some discussion, but this segues into my commercial. In order to do more meetings jointly, we don’t have the resources to do that presently. We have had conversation. Fortunately, the previous chair and I work in the same place, so we have conversations.
The ATC has taken some steps to assist the DDC, for example, with approved containers. Our current approved containers can be plastic. Plastic is bad for drug analysis, so we are changing our standards to adapt so that only glass containers will now be acceptable. Currently, they are all glass, but if a new manufacturer wanted to come in, we would then have standards saying you shalt not have a plastic tube. That will assist our drugs and driving colleagues. It makes no difference to alcohol; we can take what we get.
We certainly welcome more collaboration because there are many aspects of this bill that are mixed, if you will.
Senator Dupuis: It seems that you agree with the provisions of the bill overall, except for certain more technical amendments that you mentioned, if I understand correctly.
As to random alcohol testing, have you looked into the issue? You said you would consider it from a scientific point of view only, which is understandable. In your discussions, have you had the opportunity to examine the issue of racial profiling in the selection of individuals for random alcohol testing? Have you looked at the issue of road blocks? They can reduce the risk of racial profiling to the extent that everyone is subject to the test, whereas with completely random alcohol testing, there is a risk of racial profiling, whether it is conscious or not.
Mr. Mayers: The very quick answer is no, we haven’t considered that. It’s not part of our mandate, and others are better qualified to make determinations.
The Chair: I understand, Ms. Peaire, that you have a presentation in relation to drugs. Would you care to proceed now so that the questions coming from around the table could take that into account in the same round?
Amy Peaire, Chair, Drugs and Driving Committee, Canadian Society of Forensic Sciences: Thank you for this opportunity to present before the Standing Senate Committee. I am here today in my capacity as chair of the Drugs and Driving Committee, or DDC, which acts to provide scientific advice to the Department of Justice on drug-impaired driving issues.
The DDC has recently produced two publicly available documents. The first is the report on drug per se limits, which I provided in advance to this committee, and the second is standards and evaluation procedures for drug screening equipment for oral fluid. I apologize that I didn’t provide that one in advance, but it is publicly available and I will do so after this meeting.
The DDC is now actively involved in the evaluation process for this equipment, which is commonly referred to as oral fluid screening devices.
It’s widely acknowledged that drugs can impair an individual’s ability to operate a motor vehicle. Evidence also suggests that drug-impaired driving is as prevalent as, if not more so, alcohol-impaired driving. The difficulty is having effective tools to readily detect drug-impaired drivers.
It is important to realize that there is a wide variety of drugs, including over-the-counter, prescription and illicit drugs that can impair driving in different ways and which are all commonly detected in suspected impaired drivers in Canada. These drugs can affect an individual’s driving ability in different ways at different concentrations, and there can be a variety of pharmacological factors that can determine the resultant impairment. For example, individual drugs distribute differently throughout the body and can vary in the duration of their effects, the concentrations at which they cause driving impairment, whether an individual can become tolerant to their impairing effects over time and whether they may interact with other drugs to cause additive or even synergistic impairment. As such, we must be careful not to try to oversimplify drug-impaired driving by expecting it to be directly analogous to alcohol-impaired driving, or by considering all drugs as a single category.
We would be remiss to expect that the tools used in alcohol-impaired driving investigations, such as screening devices and instruments that use breath samples to determine an individual’s blood alcohol concentration, would have direct analogues in drug-impaired driving investigations. Instead, the impairment produced and the sensitivity of various tools to their detection needs to be considered on a drug-by-drug basis.
The proposed amendments in Bill C-46, which facilitate the collection of blood and its collection in a timely manner after the time of driving, will be important components in strengthening drug-impaired driving investigations, regardless of the drugs involved. While a blood concentration of a particular drug may, in isolation, be of varying utility in determining drug impairment, the collection of blood as opposed to urine actually places the drug in the body. Minimizing the time delay for its collection after driving furthers its utility by minimizing both the potential for changes in drug concentration over time and the potential for drugs to be eliminated from the body after driving.
With proposed legalization of cannabis in Canada, much interest has focused on THC and driving impairment. THC impairs the ability to operate a motor vehicle. Evidence for this comes from laboratory studies that demonstrate the impairing effects of THC on specific skills required for driving from closed course driving, driving simulator studies and from epidemiological studies of THC-positive drivers involved in and responsible for motor vehicle collisions.
Unlike alcohol, however, the effects of THC do not correlate directly with THC blood concentrations. Instead, THC impairment demonstrates variability between individuals but is related to the amount, the route of administration and the time elapsed since use. It is important that these additional complexities of THC impairment, as well as those specific to other drugs, not distract us from their potential to impair, nor deter us from learning how various tools can be applicable for the detection of driving impairment by these drugs.
Thank you for your time, and I’d be happy to answer any questions you might have.
Senator Boisvenu: Ms. Peaire, does the effectiveness of the detection tools that the police officers showed us earlier on correspond to an algorithm that is related to falling temperatures? Those devices are very effective between 5 and 25 degrees. The mercury can go down to -40 in the North, where consumption is very high. Once the temperature is below zero, does the device’s effectiveness decrease in accordance with an algorithm and falling temperatures? Is there a known algorithm or does that still have to be tested?
Ms. Peaire: I should explain that when the Drugs and Driving Committee came up with its standards that are required for any devices that would be approved for use in Canada, we looked at what would be expected in a Canadian climate, which includes both very high temperatures and very low temperatures. We also looked at the temperature ranges for the devices that are out there in the market today what's available and what they can handle. We wanted to have high standards for their use to make them as useful as possible in Canada, but also we had to be realistic to see what’s out on the market today.
In our standards, we said that the devices would need to be operable in a temperature range of at least 5 to 35 degrees Celsius, and that reflects what is available on the market. Devices should be available that could have larger ranges for use, and part of those provisions is that we said that if the devices were used outside of the range that was stated as acceptable by the manufacturer, the manufacturer would have to provide evidence of what effect that would have on the devices.
So realistically, it’s possible that these devices would not be able to be used outside in very cold temperatures. They would have to be in some sort of temperature-controlled environment, like a police vehicle.
Senator Boisvenu: In regions with very high consumption and very long nights — the nights in the North can last up to 20 hours —, there can be extended periods of low temperatures. Does that mean that it would be difficult to prove the effectiveness of those devices in court because it could easily be challenged?
Ms. Peaire: What would have to happen is we would set the minimum standards. There may be devices out there that could be operated at temperature ranges beyond those standards, but if a device was operated outside of the manufacturer’s stated temperature range, the manufacturer would have to indicate what the potential impact would be on that device. In some of the devices we saw, they simply indicate to the operator that it’s outside of their usable temperature range and they don’t allow a test to be performed.
Senator Boisvenu: One option would be a blood test if the device is not effective. In the communities I visited, there is often a shortage of nurses or health professionals to do those blood tests. Would the police officers themselves have to do the blood tests?
Ms. Peaire: That would be outside of my area of expertise to talk to. I know that would be one that police services would have to decide what would be applicable.
Senator Batters: I just wanted to make sure I heard it correctly. Did you say between 5 degrees Celsius and 35 degrees Celsius was the optimal temperature range, beyond which you would need to have additional evidence brought in about the effectiveness of that particular device?
Ms. Peaire: That would be in the standards that the Drugs and Driving Committee came up with. That is the minimal temperature range under which the devices could be operated.
Senator Batters: So 5 degrees is the lowest? In Canada?
Ms. Peaire: Yes. That would be the minimum range that would be acceptable. There could be devices that are submitted that have a wider range of operation. We had to take into consideration what is a realistic expectation for the devices that are available on the market right now. These are temperature ranges that, when police services are considering what device they want to purchase, if there are multiple devices available and if one has a wider range of use, that may be a consideration for them in their purchase. Alternately, they may have to take that temperature range into consideration in determining where they use those devices, such as in a temperature-controlled environment such as a police vehicle or in another temperature-controlled area such as a building.
Senator Dupuis: I am trying to understand what you are saying.
To follow up on the question from Senator Batters, am I to understand that we are subsidizing the existing devices by setting the range from 5 to 35 degrees because there is nothing else available, rather than ordering a new device that is suited to the Canadian climate? In Quebec City, when the temperature jumps from 5 to 35 degrees, it is hot. That is early spring.
I am quite serious. It seems that we are subsidizing the existing industries. If they really want to break into the market, the least they could do is provide equipment that can be used in rural regions where there is a high incidence of driving under the influence.
Ms. Peaire: Yes. So again, when we were devising our standards, we had to make both the consideration that we wanted devices that were very useful in Canada and conformed to very high standards of use, that they were reliable, accurate instruments and that they are ones that would be useful for court purposes. At the same time, we had to take into account practical considerations. We could either create standards that would be applicable only theoretically to devices or we had to take into consideration standards that would be applicable for devices that are on the market right now.
Mr. Mayers: At the risk of jumping in where I shouldn’t jump in, the committee should know that the ASDs have the similar temperature range. The ASDs that are used now for alcohol have the same limitations because of the fuel cells that are used there. We’ve dealt with it with the alcohol side.
Senator Gold: Forgive my ignorance, but if it’s kept in a car and it’s within that range, does that mean that the minute you take it outside, you’re outside the range? I’ve never blown into one of these things. In practical terms, what does it mean if it’s a cold winter night and it’s in the car. Does that mean that you have to bring the driver inside the police car, or is there a system such that you can actually take the sample outside, bring it back into the car and wait for X minutes? How does it work? What does this mean practically?
Ms. Peaire: Practically speaking, it’s important that we said that the manufacturers would have to provide information that says what is the impact of using the device outside of the manufacturer’s stated temperature range. That impact may be something like the test may take somewhat longer. It may range to other things such as the device itself will indicate that it’s not at an acceptable temperature range and will refuse to accept a sample and analyze it.
From what we saw from Public Safety Canada’s pilot project, when they were testing out various devices in very cold winter temperatures, they found that a lot of these devices were operable. A lot of them have their own heating system because they’re electronic, so they do generate heat themselves. It’s not that they’re instantly affected by a cold temperature. They do manage to maintain their temperature to a certain extent. The study also indicated that several of them were used simply within police vehicles as well.
Senator Eaton: Mr. Mayers, I’ll ask you a question about alcohol. The level of impairment in the Criminal Code is 80 milligrams of alcohol in 100 millilitres of blood; is that correct?
Mr. Mayers: At the risk of sounding cheeky, it’s not. That’s the per se limit. People are impaired long before they reach 80.
Senator Eaton: I was just about to say that provinces have put their own much lower limits. In Ontario, 50 milligrams leads to a licence suspension. I was wondering why in the Criminal Code is it 80 milligrams — and why hasn’t it been corrected — and in Ontario it’s 50 milligrams?
Mr. Mayers: I am not about to leap into the decisions of the government.
Senator Eaton: I’m not asking you to. I’m asking you as a scientist.
Mr. Mayers: As a scientist, I testify regularly in courts that individuals are impaired at 50 or above. That’s my scientific opinion. My colleagues on the alcohol test committee are of the same mind. I can’t speak to why the Criminal Code is where it is. I know that when the Code was put in place in the 1960s, there were even submissions back then that perhaps 80 was a little too high.
Senator Eaton: I ask this because Senator Boniface, who spent most of her life in the mounted police, talked about rural areas. You know the statistics in rural areas, in northwestern Canada and northern Canada and the Maritimes. In rural areas, drug impairment and alcohol impairment are somewhat higher because often people don’t have public transportation. I wanted to know whether the provinces were being too mingy and mean about people going out for a glass of wine. You’ve answered my question. Thank you.
Ms. Peaire, one of our last witnesses testified that these drug-detecting devices can determine if there’s a drug in the blood but can’t determine how much is there. Senator Galvez had a very interesting speech in the Senate the other day. She said that, in Colorado, the USDA has found that they’ve been seizing cannabis that has a much higher potency, such as sensimilla. Does that mean something? In the past decade, there has been an influx of high potency cannabis products in the U.S. such as sensimilla, an engineered plant grown from clones, not from seeds. Data from the USDA seizures record a substantial increase in potency from 4 per cent to 30 per cent. That is, 30 per cent THC content and higher. Colorado is looking at proposing an amendment to limit the potency of THC in cannabis products. Do you think that’s something that the legislation should consider?
Ms. Peaire: I think that they’re quite right in that the potency of THC has increased dramatically over the years. Whereas in years past you would have marijuana strains with 2 to 3 per cent THC, now they are regularly between 20 and 40 per cent. There’s also an increasing frequency of having THC concentrates in which the THC is extracted from the marijuana, and then you can get it in concentrations ranging from 70 to 90 per cent. This THC can be added to concentrates, vaporized, put into edibles in many different formulations.
One of the difficulties is that a lot of the scientific literature has not been able to focus on these high concentrations of THC. If you look at the literature, what’s commonly referred to as high-potency THC is looking at THC concentrations of up to 12.6 per cent, which really does not reflect what’s out there on the market today.
One of the concerns that’s coming out from health officials is that this high-potency cannabis has much more potent effects on individuals that are not properly known and that may have much more significant health effects upon them than otherwise. I think this is an area that definitely needs more research.
One of the concerns I have as a scientist is that with edible consumption high-potency THC products, because of the way that THC works, you may have a high amount of impairment in an individual but they could have relatively low blood concentrations.
Another thing is that when THC is consumed orally, an individual does not experience its effects directly such as you do when you’re smoking THC. There have been reports out there that individuals will consume an amount of high-potency THC product by consuming it orally. They don’t feel any effects, so they consume more. Half an hour to a couple of hours later, suddenly they’re experiencing extremely potent effects, and there have been some reports of psychotic activity associated with that, very extreme hospitalization events. I think that’s an area for concern.
Senator Eaton: Would you recommend, if you were us sitting around this table, that the potency of THC be regulated?
Ms. Peaire: I think, as a toxicologist, one of the difficulties is that it’s difficult to talk about the driving impairment associated with these high concentrations of THC. There’s really not enough research on it. But from health practitioners, from specific case histories, I think it is an area for concern that really needs more study before it’s wide open consumption and permission for its use.
The Chair: Does that mean that for a Canadian, for instance, who would have some psychotic trend that is not visible, with the high concentration of THC, the damage would be more acute?
Ms. Peaire: Although this is getting a bit outside of my area of expertise as a toxicologist, there is evidence that is coming out from the medical profession that the younger people start using marijuana products, the more that they use them and the higher the dosage and concentrations, the more susceptible they are to long-term effects and to more significant health effects, which could include psychosis.
The Chair: Thank you very much. You have answered my question.
Senator Pratte: Earlier — and I’m sure you were here — Mr. D’Arcy Smith explained, if I understood correctly, that your committee, at first, was not very keen on coming out with per se limits. In the end, again if I understand correctly, because the government wanted per se limits, you decided to come out with the document that you came out with. Would you care to elaborate? I would think, as scientists, if you didn’t want to recommend per se limits, you could have said, “We just don’t believe in per se limits; therefore, we won’t recommend per se limits.” Can you elaborate on how that happened?
Ms. Peaire: Yes. This is specifically for per se limits for THC.
Senator Pratte: Yes.
Ms. Peaire: There are other drugs that we did specifically recommend per se limits or zero tolerance for in that same document.
It’s a very difficult exercise to try and determine a per se blood level for THC. Unlike alcohol, in which you can have blood concentrations which have links to impairment, that’s not the same for THC because there’s not a good correlation between impairment and blood concentrations.
Senator Pratte: I understand the scientific difficulty. What I’m getting at is why you decided to recommend or at least help the government come out with limits with THC levels even though you disagreed with the concept of having THC levels.
Ms. Peaire: It’s not a straightforward concept. However, there is some link between concentrations of THC and impairment. The largest link is between the presence of THC in the body and impairment. However, there is a certain generalization that can be made that at higher concentrations of THC in the blood, they’re, in a very general sense, linked to more recent use. The more recent the use of THC, the more likely an individual is to be impaired.
For that reason, our committee came out with two per se limits for consideration, because per se limits for THC have been used in other jurisdictions. We came up with all the scientific considerations and limitations for each of these, and essentially the per se limit of five nanograms per millilitre of THC, that addresses, more likely, impairment issues, and the per se limit of two nanograms per millilitre THC in blood, that addresses more public safety issues because there’s less confidence that a person can be impaired. However, people are impaired at two nanograms per millilitre of THC. So in those public safety aspects, that lower limit may be something to be considered.
Senator Pratte: Would you elaborate on your reasoning for two nanograms, the public safety aspect? I highlighted that sentence in your report. I want to understand the distinction that you made between the five nanograms and the recommendation for two nanograms on the public safety aspect. What do you mean by this?
Ms. Peaire: Yes. If you’re looking at someone who smokes cannabis or marijuana, what happens is that while a person is smoking, their blood concentration initially rises very rapidly. Then as THC is distributed into the fatty tissues of the body and starts to act at receptors in areas such as the brain and have an effect on an individual’s central nervous system, the blood concentrations drop very rapidly. Once they’re at relatively low levels, around five or two, then there can be a much slower decline in those blood concentrations over an extended period of time. So someone could reach levels of two nanograms or even lower within a relatively short time frame, well within an hour or two of smoking, and during that period a person could still be impaired to drive a motor vehicle. You could have someone with a blood concentration between two and five, or even below two, who has recently smoked cannabis and who could be impaired to drive.
Now, there may be other individuals who have consumed cannabis and are above two or even above five. These are more chronic users, in general, who have not smoked cannabis recently and who have that blood concentration for an extended period of time and may not be actively impaired by cannabis.
There is another complication to that in that chronic heavy users of cannabis may experience extended impairment issues. And whether or not that’s related to the effects of THC itself on that individual, whether it is a withdrawal effect from THC that they have been using chronically at high doses or whether this is another effect of THC upon the person’s central nervous system that has occurred with chronic use, that’s unknown. So whether it’s a direct effect of THC or an indirect effect of THC, that’s what’s not known.
The Chair: Thank you very much. I think it’s very enlightening, because there are elements at play in terms of what I call the immediate impact or effect of the drug and the long-term effect of the drug in different people, considering the body configuration of each human being that might be different in terms of capacity to react to the drug.
Senator Carignan: My question is for Ms. Peaire. The Olympic Games are on right now so I will ask you a question about Ross Rebagliati, who won a gold medal at the Nagano Games in 1998. Please tell us about situations where a person who is in the proximity of people smoking cannabis could have some THC in their system as a result of second-hand smoke.
Ms. Peaire: Yes, I can do that. I think there may be two issues to talk about. I’m not sure if you’re also interested in the issue of passive exposure with respect to oral fluid drug screening devices.
One of the things that the Drugs and Driving Committee considered when they were drafting the standards for oral fluid screening devices was the potential for passive exposure, and that is why we set the cut-off for THC in oral fluid at 25 nanograms per millilitre. There have been studies conducted looking at the potential for oral fluid to be contaminated and to have THC in it due to passive exposure, and those studies have indicated that from passive exposure, those concentrations in the oral fluid would not reach our cut-off that we set. So we wanted to make sure that would not be an issue in oral fluid drug screening device use. Secondly, with respect to the potential for passive inhalation, and to have positive blood concentrations of THC, that is a possibility.
What happens with passive inhalation is that those THC concentrations in the blood drop very rapidly. Most studies show they are less than 1 nanogram per millilitre in the blood an hour after exposure, and those are extreme studies. They are ones in which some of the individuals were exposed to such extreme smoke that they were offered goggles because it was irritating to their eyes. There can be, in those extreme situations, the potential for an individual that, while they’re not actively smoking themselves, they are consuming enough cannabis, THC-laden smoke that it could be considered an active consumption of THC in itself. Some individuals may experience a high effect there.
Senator Carignan: In the Netherlands, in particular, these are examples you gave in previous interviews.
Ms. Peaire: Yes.
Senator Carignan: So there are people who could be in violation because it is an offence if the level is two to five nanograms, without ever having directly used cannabis?
Ms. Peaire: I think the potential for that is extremely low at a practical level. In oral fluid screening devices, we’ve set the cut-off for THC high enough that individuals passively exposed to THC would not reach those levels so they wouldn’t test positive on an oral fluid drug screening device. In blood, although individuals who have been passively exposed to THC may, for a very short period of time, have positive blood concentrations, those concentrations would go to very low levels very rapidly. And in a practical consideration, with the inevitable time delay for blood collection, I would expect those levels to not be an issue once that time delay between the beginning of an incident, police investigation and the time it takes to collect that blood. I don’t think that you would see detectable levels of THC in that individual.
The Chair: Thank you very much. I am looking at the clock, so very quickly because we should have been adjourned at this late hour.
Senator Carignan: There is a presumption at subclause 320.31(4). First, despite my reading of the provision, I had difficulty in understanding it and, second, we are creating an increase of 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of two hours. I have a hard time seeing how we can create this presumption when we’re talking about a person. I did not deal with many cases like this, but I have dealt with at least one, and the expert said that, depending on the person’s sex, weight and height, the elimination of alcohol in the blood was different. How do we create a presumption for someone with an increase of 5 mg of alcohol in 100 mL of blood for a 30-minute period, when it all varies depending on sex, weight and height?
Mr. Mayers: The quick answer is that it doesn’t vary according to sex, height or weight. If you are calculating from an alcohol consumption, you need that information, but let’s remember we have an alcohol concentration. The only variable is the elimination. That elimination rate is quite fixed and can be taken into account at a very conservative mechanism with the way it is being proposed. What they’re proposing is that the individual is eliminating at the very lowest possible elimination rate of anyone in the population. Courts are dealing with that on a daily basis. I will be dealing with that tomorrow. That’s why we’re saying we’re confident there is not going to be any prejudice to the accused individual.
The Chair: Thank you.
Senator Gold: This is a question for both of you to encourage the conversations that you aspired to earlier.
The bill creates an offence for driving while impaired, which has always been an offence, but in particular now, per se levels with the combination of drugs and alcohol. Can you explain the science underlying the assumption that it’s even worse to drive when you’re combining alcohol and cannabis than when you’re consuming only cannabis or only consuming alcohol? What is the synergy between the two substances as it affects impairment? We’re here to talk about impairment; we sometimes get a little sidetracked on larger issues.
Mr. Mayers: I will start and Dr. Peaire will enter into this. The way that combined offence is being drafted, as I understand it, as an alcohol expert, I’m good with 50 milligrams in 100 millilitres of blood to start with. But I don’t just deal with alcohol; I do drug cases as well. And I do know the addition is clear that if you add concurrent use of cannabis, there’s an increased impairment at low concentrations of each drug that, by themselves, may arguably not be impairing. They are impairing in my mind, but arguably not, but you combine the two and you hit it right on the nose: There is a synergy. One plus one may not just equal two but equal four. I’m not suggesting I know why these numbers were arrived at, but the Alcohol Test Committee is certainly comfortable with 50 milligrams of alcohol in 100 millilitres of blood causing impairment. If you give us something else to work with on top of that, we will not change our mind about impairment.
Ms. Peaire: I think Dr. Mayers explained that very well. The only thing I can add is that alcohol and THC impair the ability to drive differently. When you add those two different types of impairment together, you get all the impairment caused by alcohol and all the impairment caused by THC.
The Chair: Before I adjourn the committee, it’s my privilege to thank you, Dr. Mayers and Dr. Peaire. I wish our colleagues in the chamber could have had an opportunity to listen to you both on the floor of the chamber. I think it would be very helpful for the information of all the senators, not only in relation to this bill but to the other bill, Bill C-45, which is also being discussed and studied by senators. Thank you very much for your contribution at this late hour.
(The committee adjourned.)