Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 18 - Evidence - November 30, 2016
OTTAWA, Wednesday, November 30, 2016
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-230, An Act to amend the Criminal Code (drug-impaired driving), met this day at 4:16 p.m. to give consideration to the bill, and in camera, for the consideration of a draft agenda (future business).
Senator Bob Runciman (Chair) in the chair.
The Chair: Good afternoon. Welcome, colleagues and invited guests.
Earlier this fall the Senate referred to the committee Bill S-230, An Act to amend the Criminal Code (drug-impaired driving.) This is our first meeting on the bill.
We are pleased to have with us the sponsor of the bill, the Honourable Senator Claude Carignan, to explain it all to us.
Senator, welcome. The floor is yours.
Hon. Claude Carignan, P.C., sponsor of the bill: Thank you, Mr. Chair.
[Translation]
Dear colleagues, I am pleased to be here to speak to Bill S-230. Bill S-230 targets a serious and growing problem, that of drug-impaired driving.
Police and experts alike agree on the lack of tools available for roadside screening of drugs in the body of drivers.
Statistics speak for themselves. In 2013, police forces processed approximately 80,000 cases of drug-impaired driving. In only 3 per cent, or 1,984, of these cases drug-impaired driving was involved, and alcohol was responsible for the rest, 97 per cent. This 3 per cent represents about five cases per day of drug-impaired driving across Canada. This is not normal.
According to MADD Canada, there were 614 road fatalities in 2012 where a driver had drugs present in their system, compared to 476 fatalities where a driver had alcohol in their system. The Canadian Centre on Substance Abuse confirms this trend. Furthermore, surveys based on random test samples show a much higher percentage of drug-impaired driving.
As Judge Lamer explains in Bernshaw, legislators enacted a two-stage scheme set out in sections 254(2) and (3) of the Criminal Code to provide a means of testing if a driver is impaired. The first stage is screening drivers for impairment and is a preliminary investigation. At the second stage, the scheme is aimed at determining precisely the concentration of a substance in the driver's body.
Amendments proposed in S-230 are only concerned with the first stage, the preliminary investigation. The bill does not change the process involving drug recognition experts and does not create a new offence.
Screening devices, as the case law tells us, are instruments approved for use during the first stage. These devices provide rapid, objective and unintrusive screening, and serve as a basis for establishing reasonable grounds.
Currently in the Criminal Code, reasonable doubts on the presence of drugs allow for the administration of physical coordination tests. On the basis of these tests, police will determine whether a driver must be brought to the station to undergo 12 additional tests and, in the case of a positive result, require a urine or blood sample.
According to our research, police have few tools to establish reasonable grounds to believe that drivers are under the influence of drugs. No one can be accused on the basis of this test. The second validation test involves a sample of bodily substances which are sent to a laboratory for analysis to ascertain which drugs are found in the driver's body as well as the quantity of these drugs.
Bill S-230 seeks to amend the Criminal Code to give police officers a screening tool which will complement the other tests and tools. It would enable the Attorney General to issue an order to approve a screening device, as has been the case for alcohol testing devices for years, particularly the ALERT test. This device would be chosen after consultation with experts. The government would be responsible for establishing the detection limit and the type of drugs to screen for.
Our case law analysis tells us that the oral fluid test would be interpreted by the courts the same way as the breathalyzer, that is the ALERT test used in the first step, for the purposes of the Charter. Case law is unanimous in agreeing that the fact that a driver who fails an alcohol screening test does not risk criminal liability, but can be required to pass the more precise test under section 254(3) of the Criminal Code. The impact of such a test is thus limited and its advantages — namely, prevention and safety — greatly exceed its disadvantages.
As I said, an approved screening device would play a complementary role. It would complement the coordination tests and the sum of the observations made in situ, such as the way of driving, physical appearance, questions and answers, smell, eyes, and admissions. It would help in further establishing reasonable grounds to believe that an offence has been committed.
Bill S-230 thus gives an additional choice for police when it comes to samples of bodily substances. After observing an individual, conducting a physical coordination test, and getting a positive result for drugs, police could require a sample of bodily substances if they have reasonable grounds to believe that this individual's driving ability is impaired by drugs. Peace officers could also decide to refer the individual to an evaluating officer who would conduct the 12 additional tests.
The Supreme Court of Canada was clear: ". . .each case must be assessed on its facts.'' As Judge L'Heureux-Dubé says in the Bernshaw decision:
. . .the screening test is intended to enable police to evaluate sobriety quickly, efficiently and reasonably reliably in order to remove impaired drivers from the highways. The screening test is a quick heuristic, a rough and ready means to address, curtail and deter a very real danger on the roads. It is a screening device. Implicit in such a role is the acknowledgement that it is not perfect. Partly for this reason, its results carry no penal consequences.
To sum up, this is an additional screening tool that will help establish reasonable and probable grounds to believe that an offence has been committed to enable police officers to move on to the second stage.
This completes my presentation. I am prepared to answer the senators' questions.
[English]
The Chair: Thank you, senator. We will move to questions, beginning with Deputy Chair Senator Baker.
Senator Baker: Thank you, and welcome to the witness. He is to be congratulated for searching for ways in which the police can carry out their duties at roadside as they relate to impaired driving by alcohol or a drug.
We have experts, as you know, witness, before this committee. We have Senator White, who is an expert in this area. We have Senator Dagenais, who is a court-recognized expert as far as the certificates relating to the breathalyzer are concerned. We have Judge Sinclair, a provincial court judge, on this committee, where these matters are adjudicated.
My first question to you, and perhaps the chair is going to cut me off anyway so I may not get a second one: Why do you feel that we need more? We had a drug-impaired driving bill before this committee a short time ago under the previous government, the Conservative government. It was a drug-impaired driving bill, one of the big pieces of legislation they brought in, with physical coordination tests at roadside. If you fail those, you go on to a sample of your urine and so on.
I can't do those roadside tests. I'm too old to do those tests. I can't stand on one foot or walk on the roadside, so I would go to the second.
Why do you need this extra matter at roadside, without rights to counsel now, because that's what your bill says, to take your DNA, to take a swab of your mouth? Why do you think we need that extra proof that somebody has the indicia of drug-impaired driving?
[Translation]
Senator Carignan: First, I would say that it is not an extra but rather something that fills a void. There are currently no tests to screen for drug concentrations in an individual's system for impaired driving and police control purposes. Currently, when a police officer stops a driver who he thinks may be impaired, he often administers the ALERT test or takes the driver to the police station to administer an alcohol screening test. If he has a drug recognition expert at his disposal, he can also direct the individual to that expert.
As you say, the expert is a trained individual. There are not a lot of them. Many police departments have none. We only have one in Saint-Eustache, and that person is available only on weekends. The availability of experts is a problem. When I consulted my chief of police in Saint-Eustache, he told me it was a major problem. I asked him what he thought of this system that had been put in place, and he told me it was extremely complex. The chiefs of police discussed this and indicated they would like to have a technical tool to assist in screening. We know this is available elsewhere in the world but not in Canada.
So I did some research and found that there are screening devices in a number of countries. I also found articles and documentation, but also resolutions of the Canadian Association of Chiefs of Police requesting that this test be put in place. I met with the MADD people. I saw some TV reports prepared by MADD in which they showed that simple tests were available that provided police officers with a tool to screen for drug-impaired drivers by the roadside.
This is an objective test. However, no one can be convicted based on its results. It helps police establish reasonable grounds to go further. The officer can take the person to the police station to be assessed by a drug recognition expert or to take another saliva, urine, or blood sample to add to his file.
In fact, it is a complementary tool, at the request of police officers.
[English]
Senator Plett: Senator Baker asked why, and I think in your opening comments you said why — because the stats show that we don't have nearly enough people being charged with drug-impaired driving. So maybe that's why we need this additional mechanism.
Two very brief questions: Some provinces already have penalties for drug-impaired driving. What impact will this bill have on what additional penalties provinces already have?
[Translation]
Senator Carignan: The bill does not change the penalties or create a new offence. It authorizes the use of devices that will help police officers screen for drug-impaired drivers. The test is administered by the roadside and enables police officers to screen for the presence of drugs. Following the test, if an officer suspects the driver is drug-impaired, he will request another sample, which will be sent to a laboratory for full analysis. That will be a validation test.
Technically, this tool will not increase penalties or create a new offence. It will help detect problem situations.
[English]
Senator Plett: So this will only help provinces.
[Translation]
Senator Carignan: Yes, police officers will have an additional tool that will help cut policing costs. In my bill, I have not replaced the drug recognition experts. The police chiefs feel they must keep the drug recognition expert as backup. This tool will definitely facilitate police officers' work and will reduce the number of drug recognition experts, which will help police departments save money.
[English]
Senator Plett: What is polydrug use?
Senator Carignan: Are you talking about the polytox committee?
Senator Plett: Okay, maybe that's what it is.
[Translation]
Senator Carignan: In many cases, few people use only one drug. Experts can give you a better explanation than I of the way the tests are designed to detect the presence of certain types or families of drugs. When the sample is sent to the lab to validate the presence of drugs, it may detect multiple drugs, since the drugs that people take are mixes or recipes involving various types of drugs.
I met a drug recognition expert in Saint-Eustache who showed me a form from a laboratory. If I remember correctly, the driver at fault had taken 15 drugs.
Senator Jaffer: I congratulate you on your work. This is a very important subject. We put this question to all witnesses who testify on criminal matters. Does this bill comply with the Canadian Charter of Rights and Freedoms?
Senator Carignan: I have no concerns with respect to the Canadian Charter of Rights and Freedoms. We conduct a search because we have taken a sample. That is the first stage.
Second, there is the right to consult a lawyer. We require the individual to provide a sample before granting that person's right to consult a lawyer. In both cases, that has happened with the ALERT alcohol test. This is exactly the same type of test. It is a screening test that is validated by another, more thorough test.
The test I am proposing is equivalent to the ALERT breathalyzer test. It has been deemed constitutional with respect to searches and the right to consult a lawyer. Why? Because this is a real and urgent problem. We must protect the public and fight this scourge of impaired driving.
Second, this is a relatively unobtrusive device that takes a saliva sample. You will see how it works. It does not take a large sample.
Third, there is the matter of impaired driving. Driving is a privilege. The right to drive entails responsibilities, and the Supreme Court has held that, in the case of searches, violations of the privacy of a person who enjoys the privilege of driving are not as serious as those of a person who is in his home.
Consequently, it has been recognized, with regard to both the right to a lawyer and searches, that these are reasonable limits in a free and democratic society. These judgements have been rendered by Judges Lamer and L'Heureux-Dubé. I do not know whether you are familiar with Judge Antonio Lamer, but he is undoubtedly the best criminal law jurist in Canada in the past 50 years, and I have relied on his judgement.
[English]
Senator Jaffer: Senator, I, of course, agree with the spirit of the legislation, and I want it to work. But I'm struggling with the following: When it's a breathalyzer test, it's something you sort of put in the mouth, but this is where, if I'm not mistaken, you are taking saliva out of a person's mouth. If I compare this with DNA, if you want DNA taken off of somebody, you need a warrant, if I'm not mistaken.
[Translation]
Senator Carignan: I have a sample here. I just did the test. As you can see, it is not very intrusive.
[English]
Senator Jaffer: It's still intrusive because you're taking something away. Do we not need a warrant for that?
[Translation]
Senator Carignan: No, it is exactly like the ALERT test, according to the Criminal Code. This is a roadside test that is administered with the first breathalyzer test. If it is positive, the individual is not charged based on that result. He or she is taken to the police station to undergo a scientific blood-alcohol test. If I had produced a positive result on the test I have just taken, even while driving, I would not be prosecuted or assessed a penalty. If the second sample provides reasonable grounds to believe that a person is driving while impaired, it is sent to a lab to undergo more thorough tests. This has all been tested for alcohol.
On a trip to France, I also consulted Jean-Paul Garraud, an examining magistrate and former French deputy, who introduced this legislation in France. We spoke for several hours, and I asked him all the questions you are asking me. This matter has gone before the European Court of Human Rights and passed all the tests.
Senator McIntyre: Senator Carignan, I congratulate you on your bill, which I consider very praiseworthy. If I understand correctly, the screening device is so important it will be used to support the reasonable doubt of police officers working by the roadside. Is that correct?
Senator Carignan: Precisely. That is why there are more alcohol-related prosecutions. According to several police officers I spoke to, the ALERT test is easy to administer and subsequently confirms reasonable grounds. Since there is no equivalent for drugs, that is not tested. Consequently, there appear to be more cases of alcohol-impaired than drug- impaired driving simply because police officers do not have the necessary equipment to administer the tests.
There was an 800-per-cent increase in the detection of drug-impaired cases when these tests were introduced in England.
Senator McIntyre: Tell us about the drug evaluation officers. If I understand correctly, the role of those officers was included in the Criminal Code in 2008.
Senator Carignan: Yes.
Senator McIntyre: Could you tell us why the present system is not ready to deal with the legalization of marijuana?
Senator Carignan: We are going one step further with regard to the legalization of marijuana. I claim this would be useful even if marijuana were not legalized. The current problem is that there are few drug recognition experts. Second, before calling in an expert, a police officer must have reasonable and probable grounds to believe that the person has been driving while drug-impaired. The process involved in becoming an expert is complicated.
In their everyday lives, police officers assigned to road safety do not necessarily have all the knowledge they need. When they see an individual with red eyes and detect the slightest smell of alcohol, they lean toward alcohol rather than drugs because they have the ALERT test. However, if they had the drug screening test, they could administer both tests and we would see a different situation.
Senator McIntyre: There are currently not enough drug evaluation officers in Canada.
Senator Carignan: It is a major problem. I met some drug recognition experts, and I underwent the 12-stage test. I observed the length of the test, but sample analysis is obviously an important element.
We agree that these are impaired driving cases. Drugs may be involved without the person being impaired. The Criminal Code violation is impaired driving, and we are not creating a new offence with this test.
Senator Joyal: Welcome, Senator Carignan. Your bill would not amend subsection 254(5) on page 512. I do not know whether you have the same edition as mine.
Senator Carignan: Pardon me, the pages are very thin. No, I do not have the same edition.
Senator Joyal: I will read it. Subsection (5) reads as follows:
[English]
Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
[Translation]
In other words, it is the person whom the police officer asks to submit to the test and who refuses to do so.
Senator Carignan: It is the refusal to comply.
Senator Joyal: It is the refusal to submit to the test. Have you assessed the case law and what the courts have held concerning the scope of the refusal to submit to the drug test?
Senator Carignan: What I have seen with regard to the refusal to comply is that this becomes an order. The individual would face a consequence if he or she refused to take the test. The individual could be convicted of refusing to comply, but, in the event of a refusal to submit to the ALERT test, the case law has held that it would be reasonable to provide for this type of refusal-related offence, in view of the importance of the rights violation issue we discussed earlier.
Senator Joyal: What I would like to hear you address is the "without reasonable excuse'' aspect. Is it conceivable that a person who refuses to comply might have reasonable grounds to refuse that would be different from those previously recognized in case law with respect to the breathalyzer?
Senator Carignan: Certainly. The case law is constantly evolving. The tests will be interpreted and the case law will evolve. I think that, as in the case of the ALERT test, it will become case law that the test constitutes a reasonable limit in a free and democratic society.
Certain exceptions may be accepted in some cases of refusal to comply, but it is hard to imagine such situations. I do not doubt that they could occur because that is normal in the implementation of a new system.
Senator Joyal: Do you not think that the case law respecting the grounds recognized by the court is complete as regards the tests that are likely to be administered or the refusal to comply?
Senator Carignan: Case law constantly evolves. Lawyers are imaginative, and a host of situations may arise. Case law on this subject is always evolving.
Senator Joyal: How do you think the introduction of this theoretically objective test has affected the way a peace officer might assess reasonable grounds?
Senator Carignan: As the Supreme Court held in the Dubé judgment, each case must be assessed on its facts. When a police officer stops a person and has to establish reasonable grounds, there is a subjective aspect and an objective aspect. This test will obviously help with the objective aspect in establishing those reasonable grounds so that he can move on to the next stage.
Just as obviously, it can also exonerate and completely allay any suspicion. Each case must be assessed on its facts, on its elements, but, where there are reasonable suspicions, in the case of a car that is swerving and a person who is slow in handing over his driver's licence, responds slowly, and has dilated pupils and red eyes, the police officer can obviously ask him whether he has consumed anything. If the individual answers yes, then everything depends on the officer's judgment. Each case is unique.
Senator Dagenais: As the present government works toward legalizing marijuana, it is becoming obvious that police departments will have to be equipped to deal with drug-impaired drivers. First, all this will require new devices to be implemented. We know that police departments will request budgets to purchase the devices and train officers.
Are you able to assess equipment needs for police stations if this bill is passed? What would the training needs be? I know that is hard to say.
Senator Carignan: Yes, it is hard to say. In Belgium, when someone is convicted, the costs of the test are included in the fine. I think the costs are approximately $40 per sample in that case. Police officers have already received basic recognition training.
As for the experts, in the case of Saint-Eustache, the drug recognition expert trains officers to recognize the symptoms of drug use in people while driving and subsequently to bring back a sample.
In some instances, training is given internally, and its nature depends on various factors, but one thing is certain: MADD has estimated the cost of one death at $13 million. Consequently, if we save a life or two, that is the equivalent of what will be required to put this equipment in place.
I told you there has been an 800-per-cent increase in the number of impaired driving cases in England. Costs will quickly be recovered as the number of deaths declines by a few percentage points.
You mentioned the legalization of marijuana. When marijuana was legalized in Colorado, the number of drug- impaired driving cases increased by an average of 42 per cent. If you add that 42 per cent here, and if we already have 600 deaths in Canada, we are talking about 200 to 300 deaths caused by drug-impaired driving following legalization.
Senator Dagenais: You mentioned the availability of experts and the fact that the expert in Saint-Eustache is available on weekends. We know there are more impaired driving cases on weekends, but, sooner or later, I imagine we will have to talk about the need to increase the number of experts.
Senator Carignan: Definitely, but the bill leaves the door open for that. In the way it is written, it gives police officers the option to administer roadside coordination tests and to take a second sample that can be sent to the lab. There are still ways to build evidence in the absence of a drug recognition expert.
The evidence will definitely be more solid if it is also filed with a drug recognition expert's report. People think this is hard to recognize, but I have seen them at work, and it is quite obvious. Police officers explain to me that, when a person who has to open the car door says that someone has stolen the door handle, it is quite easy to detect the problem. The 12 tests are designed to determine the type of drug that has been used rather than the degree of impairment.
Senator Boisvenu: Senator, I too want to acknowledge the good work you have done on this issue. We had some information on states that have legalized marijuana, including Colorado, where the accident rate has risen 50 per cent.
We will obviously need an effective detection tool once marijuana has been legalized here. I would be inclined to say it will not be an interdiction tool but, rather, a prevention one, knowing that people will be monitored.
My question is quite general. When you prepared your bill, did you analyze what was being done in countries where legalization has taken place, in Europe or South America, for example? Is this kind of tool comparable to those used in those countries?
Senator Carignan: First of all, I would like to comment on the first part of your question. It reminds me of a brief story. My daughter explained to me that some of her friends and colleagues who go to parties choose to smoke marijuana before driving rather than drink, because they know that alcohol can be detected by breathalyzer, but not drugs. Some young people prefer to smoke a joint rather than drink a beer, knowing police will be checking for alcohol.
This knowledge that marijuana can be detected will have an obvious preventive effect. People believe that many countries have legalized marijuana, but few in fact have. Apart from Uruguay, which is just starting, there is Colorado, which now has detection tools. They also have them in Australia, France, Germany, the Netherlands, England, Italy, and Switzerland, and even in countries where it has not been legalized because those tools are recognized. They exist, and they are scientifically proven.
Senator Boisvenu: Is there any data on the relationship between the use of detection tools and the decline in the number of accidents in those countries relative to those that do not use detection tools?
Senator Carignan: I do not think there is enough data in countries where marijuana use has been legalized to draw a conclusion. What we know is that there has been an increase in impaired driving in Colorado.
The members of my team who spoke to people from Colorado were told this, "Get ready because we were not ready; we did not have the tools, and it was a big mess.''
[English]
Senator Batters: Thank you very much, Senator Carignan. I'm glad to see you brought this particular bill forward. I have been saying for some time that it would be foolish for the Liberal government to bring forward the legalization of marijuana without an effective roadside test in place.
At the same time, I don't think I'm being a talented mind reader by saying this: I'm certain we will hear a multitude of defence lawyers who will come here and elsewhere and raise significant Charter concerns with this particular bill. That's particularly so because, unlike alcohol, my understanding is that the presence of marijuana sufficient to trigger a positive test here could potentially linger in someone's body for a significant period of time, maybe even up to a month. Obviously, if they smoked a joint a month ago and nothing since, they won't be an impaired driver at that later point, unlike with alcohol impairment, where they have a roadside pass/fail test.
How do you respond to the Charter concerns that will be undoubtedly raised?
[Translation]
Senator Carignan: Several factors strengthen Charter compliance in that the measure is immediate and not very intrusive. There is a factor of proximity to the moment of driving, and that reduces the risk of uncertainty surrounding drug recognition.
The experts will tell you that we can sample oral fluid and that this kind of test is extremely accurate in measuring impairment. The test detects the presence of drugs, which then makes it possible to proceed with a validation test of a sample that is sent to the lab.
Obviously, the presence of drugs does not prove that the person was impaired. Other evidence is required, hence the importance of having a drug recognition expert on hand and of police testimony proving the person was impaired.
In cases where a large quantity of drugs is detected, a toxicologist can determine the degree of impairment and the type and quantity of drug used. That reinforces the evidence without, however, creating a new offence. We are not talking about a quantity of drugs here; we are talking about drug impairment.
As for the intrusive nature of the test, a hair might be more intrusive because a hair will give you the quantity of drugs that were consumed over a longer period of time, but not this test.
[English]
Senator Batters: What other type of illegal drugs does this particular test detect, and does it also detect legal drugs, prescription drugs like benzodiazepines, opioids, that sort of thing?
[Translation]
Senator Carignan: That depends on the programming of each of the devices. Most of them detect six or seven drug families, the most important of which is cannabis. Most impaired driving cases involve cannabis, what are called cannabinoids, and stimulants such as cocaine, amphetamines, methamphetamines and LSD. These drugs can be detected depending on the detection capability of the device. Once again, if the test is positive, another sample will be taken and analyzed in the lab. The evidence is based on the lab analysis, which provides a much more accurate picture of the quantities and other types of drugs.
[English]
Senator White: Thanks to the witness for bringing this forward. I would have thought that he was a police officer after having read the legislation. I was reminded by Senator Dagenais that we have much more strict entrance exams than law school.
Seriously, I do want to congratulate you. Of the top two concerns being raised right now by police leaders across the country when it comes to legalization of marijuana, which we know is coming, one is about access of children, of course, and I think the regulatory regime will deal with that. The second one, raised by the Canadian Association of Chiefs of Police, as well as the Canadian Association of Police Governance, was the fact that the approved testing devices were not where they need to be. I remember picking up impaired drivers before we had the alert, which was further evidence that allowed us to make a breath demand for prosecutorial purposes, and how difficult it was before we had that.
Ultimately, what we're really trying to do here is to put a tool in place that gives the police an opportunity to pursue the second piece, which would be a potential for a blood test. That's all we're asking for.
Senator Carignan: Exactly.
Senator White: Thank you very much.
The Chair: We have a bit of time left for a second round.
Senator Baker: There are so many questions. Just a reminder, witness, that the roadside blowing into the instrument for detection of alcohol was a decision of the Supreme Court of Canada, to allow it. It did violate the Charter, but it was saved by section 1 of the Charter that it was demonstrably justified in a free and democratic society.
Senator Carignan: You're right.
Senator Baker: So is this what you were hoping for on this particular measure, that, if this becomes law, you believe that, if it is challenged, it will be saved by section 1 of the Charter?
Senator Carignan: Clearly.
[Translation]
The first stage is easy in that, from the moment a person refuses to comply with the order under threat of punishment, he or she is assessed a penalty and required to stay on the spot. This is a kind of detention, and a sample is taken. Consequently, the first step is obvious for as many as eight out of 10 samples. Everything depends on whether this is determined to be reasonable in a free and democratic society and to be in pursuance of a real and urgent objective.
[English]
Senator Baker: You did a test of your own saliva a moment ago with a machine. You haven't been consuming marijuana or cocaine prior to coming here.
Senator Carignan: But here we have immunity.
Senator Baker: The case law shows, in the countries you referred to, that, when you take marijuana, there is a problem in that it dries up the saliva in your mouth, and it leads to an extended period of time in which the officer can indeed collect the substance, which may present a problem at the court level as to whether or not it is justified and saved by section 1 of the Charter in that it is a search of a bodily substance.
[Translation]
Senator Carignan: You saw how I took the sample just now. Even if my mouth were very dry, I would be able to get enough to conduct this first-stage test.
In the validation test at the second stage, if it were too complicated — because it is a kind of sponge that you put into your mouth — the code provides that a urine or blood sample may also be used. I think the saliva test is much less intrusive than a blood sample. Consequently, I believe that would be considered less intrusive than what is currently provided for under the code.
[English]
The Chair: We went from a short list to a long list. There is very little time left. So brief questions and comparable responses are the order of the day.
[Translation]
Senator McIntyre: I notice your bill is not intended to come into force until six months after it receives Royal Assent. What is the purpose of this delay? Is it to allow for the adoption of standards for the use of the new approved screening device?
Senator Carignan: I am aware that this is a private member's bill and that the government, if it passes it, will need time to approve the equipment, train people and inform the public of the test's existence. I therefore feel that a six- month delay is reasonable in order to inform the population, train people and acquire new devices.
If it were a government bill, it could come into force immediately because the government would have put in place all the support measures necessary to its implementation. As this is a private member's bill, I thought a six-month period would be reasonable.
[English]
Senator Batters: What other types of roadside tests, other than the one that you were showing us today, are used elsewhere in the world, and why did you choose that particular one?
Senator Carignan: I just showed this one because it's easier to put in my pocket.
Senator Batters: Is that the predominant one that's used?
[Translation]
Senator Carignan: No, when the other witnesses appear, you will see that there are other types of equipment. I did not want to advertise. It is impressive to see the other equipment work too.
However, I think it is up to the Minister of Justice, who may determine by order, as is done for breathalyzer tests, the kind of tests that would be considered admissible, and then it will be up to the various jurisdictions and police departments to choose the one most useful to them. The one I showed you is distributed by a Toronto company. I saw one that was assembled for Australia, which has evidence-tracking requirements: they must indicate the numbers at the time the sample is taken, tracking numbers, seals, and so on. The police have small prefabricated kits so they can trace the evidence in compliance with evidence-related obligations.
Senator Joyal: Have there been any court decisions in Great Britain or the United States acknowledging the scientific reliability of tests using certain devices?
Senator Carignan: Yes, in Europe, I believe. Future expert witnesses can tell you more about that. I am told the test is extremely reliable, more than 95 per cent or 97 per cent reliable. Situations may arise in which test reliability problems arise. The good thing is that this is a preliminary test. Consequently, if the preliminary test misfires and produces a positive result, for example, the validation test done in the laboratory will help determine whether it is a false positive.
There were also reliability problems with the ALERT devices, as you may recall. If a person drank and took the test immediately afterward, there was an acknowledged 15-minute delay. The Supreme Court held that, even though there might be reliability factors causing problems in certain situations, the test was reliable enough to establish or show reasonable grounds to move on to another step. No one can be convicted based on that result. The situation might obviously be different if a person could be convicted at that stage.
Senator Boisvenu: There is already a class of individuals who can use medical marijuana legally. How can police officers draw the distinction?
Senator Carignan: That is an excellent question. I did not get involved in creating a new offence by establishing levels. One can be impaired by taking antidepressants. Furthermore, there are more drug-impaired driving cases among the youngest people. The rate declines among people 45 to 55 years of age, and increases among those 55 and over.
However, these are prescription drug cases in which people do not necessarily follow physicians' instructions or dosages. They drive even though their doctors or pharmacists have advised against it. They are impaired by legally prescribed drugs. This constitutes an offence as well. Technically, that could also be detected.
[English]
The Chair: Thank you, Senator Carignan. I appreciate your testimony and hearing from you today.
The next panel of witnesses are from Alere Toxicology, Fred Delfino, Product Manager, North America; from Alcohol Countermeasure Systems Corp., Felix Comeau, President and CEO, and Abe Verghis, Regulatory Affairs Supervisor; and from Draeger Safety AG & Co., Stefan Steinmeyer, Product Manager, Drug Testing Solutions and Forensic Applications.
Welcome, gentlemen. Do you all have opening statements? Please keep them as brief as possible so members of the committee have the opportunity to pose questions.
Felix Comeau, President and CEO, Alcohol Countermeasure Systems Corp.: I'm Felix Comeau, from Alcohol Countermeasure Systems Corp., the Canadian manufacturer of breathalyzer testing equipment and the representative of the exclusive agent for Securitec, the manufacturer of DrugWipes. We'll speak later and answer more questions I'm sure about this.
With my colleagues from Alere and Draeger, I should say that present are the three premier devices for measuring drugs of abuse in saliva. What distinguishes these three companies from every other is the antibodies, and also the accuracy and efficacy of the product. The three of us have been through 10 years of trials or more in Europe. We have withstood many, many scientific tests and field trials around the world, and we rank the top three in the world.
There are many others, to answer questions that came earlier, but those others don't rank in the same quartile as the three of us here.
Securitec with DrugWipe is active in many countries in central Europe. Within the year it has been type-certified in the U.K. It has been used for over 10 years in Australia as the roadside device. I have a sample of the Australian packaging.
With that, I'll turn it over to my colleague from Draeger.
Stefan Steinmeyer, Product Manager, Drug Testing Solutions and Forensic Applications, Draeger Safety AG & Co.: First, I would like to thank you for the opportunity to talk here in front of you. I am honoured. It's very nice to be here.
I brought a machine here with me, and I circulated a handout to show you how this kind of device works. It's very easy to see. I hope every one of you has that one.
It's just pictures, but you see our system consists of two parts. One is a test kit, and this is then to collect the saliva sample, what goes into the mouth of the person to be tested. It's swabbed around from left to right, between the cheek and gums, in order to collect a proper sample.
There are some sample adequate indicators that show the operator that there is enough saliva sampled. Then afterwards this test kit goes into the analyzer, which is here. There is a door that has to be opened, then the test kit is to be inserted. There's a processing analysis inside the device. Then at the end of the day, you will get a result, negative or non-negative, on the back of the display. That's it.
The operator is a police officer. He just has to observe the collection part. He can do the collection, but this is the first from country to country. Some officers do them on their own; some others offer them to test in person. That person, then, is collecting the sample. After inserting it into the analyzer, there is nothing more to do but documentation. That's it.
After five to seven minutes, you get a result of the typical drugs or drug categories like cannabis, marijuana, methamphetamine, amphetamine, opiates, cocaine and benzodiazepines — prescription drugs, like sleeping pills.
Afterward, it's not only an analyzer but a data management system. It has memory and there is the possibility to enter data. So if this is a wish by the operator, they can enter the ID numbers. Then there is a possibility to print it out and have a documentation strip that goes then into the file. That's it. You can do it at the roadside. It's mobile use, so there's a portable device here.
We have been in the market since 2008. There were a lot of studies, clinical studies and field evaluations. We had several country approvals, like in the U.K. There are different types of requirements of the different countries.
In principle, there's a big trend to go to this zero approach or to other approaches, having cutoffs. Now it's the next step to see which cutoff fits off the saliva-testing system to the confirmation cutoff. This doesn't matter whether it's blood or fluid, it has to figure it out by the country itself, of course.
What I have learnt so far, and this is really the common response, is that it's a very helpful tool. All of our test systems are very helpful tools because you can take a sample, it's not invasive, it's not hard to manipulate it, you can have it assembled on the site very close to the driver, and then if the second sample is taken very close in a timely manner after the first sample, then you have very good accuracy and reliability of these devices.
In conjunction, then, with a structured assessment and documentation of a person's behaviour, demeanour and also the DRE expert investigation, this gives you a more objective basis for getting to drug consumption or not of the tested person.
Fred Delfino, Product Manager, North America, Alere Toxicology: Good evening. My name is Fred Delfino, and I am the North American product manager for the Alere DDS2 forensic oral fluid drug testing system.
We designed and developed the DDS2 for law enforcement to give them a tool to identify any recent drug use by an individual. In some states, they're looking at the driver and also passengers. It can be used for more than just a driving scenario.
We manufacture the DDS2 at our facilities in the U.K. Alere's toxicology division is a global leader in the manufacture, sales and distribution of various types of drug-testing products, both oral fluid-based products as well as urine-based products. We support the criminal justice market — probation, parole and corrections. We have many Fortune 500 accounts in the U.S. that we support as well in the workplace market, and also some clinical testing markets.
It's important to add that we also have laboratory divisions to our organization. We're not just a company providing products; we also have laboratory services, both in the U.S. as well as in Europe, that we provide to our customers. That serves all the markets that I spoke of earlier.
We designed the DDS2 to be a portable handheld device. We felt that this would be something that would be a little more attractive and user-friendly to police officers, easier to take out in the field, and we really wanted it to be fast, simple and something very easy to use that will deliver accurate results.
The DDS2 will deliver six drug results in just five minutes. You would be looking at testing for amphetamines, cocaine, marijuana, opiates, methamphetamine and benzodiazepines. The marijuana test is a parent compound, and I think the gentleman from Alcohol Countermeasures Systems Corp. referred to the antibodies.
The ability to test for marijuana starts with the ability to look for the substance you want, that being the parent compound of THC. That shows up in oral fluid. That's the active ingredient. It's not something you're looking at as a metabolite, like you would find in a urine sample.
Some of the questions people have and the statements that are made that we can detect this for up to 30 days or several weeks after use — the true benefit to using oral fluid is, first, being able to capture a sample and gather that important data right at the roadside. Oral fluid correlates very strongly over to blood. The results are measured a little differently but they correlate very well.
Oral fluid filters out of your blood system. Every 10 minutes, there's a new batch of oral fluid going through the mouth. It's critical that when you get that information at the roadside using one of these devices, you're able to gather whether one of the six or seven substances had recently been used as opposed to historically been used.
Our THC test is at 25 nanograms. With that sort of level in there, it's a high enough level where it is going to be more recent use as opposed to hours or days before. You're going to see, THC escapes the blood rather quickly — after two hours. So if you have a curve on a scale, you're going to see it come down quickly in a couple of hours. In most cases you're not collecting blood that quickly at a traffic stop, a phlebotomist — whatever process you need to go through.
These types of products here are designed to test the oral fluid immediately. Then you can certainly correlate over to blood if you need to do that at a later time. Confirming for oral fluid is also a great way to go as well.
If you wait too long, the sample is going to go away. You want to be able to get the active ingredient when it's available.
Our DDS2 unit comes in a case like this. Everything is here. We take it out to the field. We have the instrument, we have the printer and all the cables. This can either be run in the case as you see it, or the components could be taken out. The favourability with police officers with these types of devices is that the DDS2 could be used in the field, rural environments, suburbs or pretty much anywhere it needs to be taken.
The value to these types of instruments at the roadside is that they're giving you objective results versus subjective results. By that I mean we're not visually reading a device. The other part of the importance to that is police officers' safety. I don't think you want an officer standing on the roadside trying to visually interpret the presence of a line or no line. These instruments are going to allow the officer to collect the sample, let the devices do the work and they can proceed with their investigation or whatever it is they're gathering with the driver on the side of the road.
As far as addressing dry mouth, it's going to happen with marijuana. It could happen with other prescription drugs. Your oral fluid does filter through every 10 minutes.
The Chair: I have to ask you to wrap up, Mr. Delfino, please.
Mr. Delfino: The DDS2 is being used in countries throughout Europe and quite widely in the U.S. Colorado is using a whole bunch of all of these devices as well. The data and studies are there to support the accuracy and reliability.
The Chair: Thank you. We'll move to questions beginning with the Deputy Chair.
Senator Baker: Thank you to the witnesses and thanks to Senator Carignan for bringing this matter before this committee, the Senate and the House of Commons eventually.
What we're talking about here is simply a tool at roadside to allow a further investigation. The further investigation as to whether or not somebody has drugs in their system, as you point out, Mr. Delfino, the exhaustion rate, the expelling of the substance from the body is time tested.
We have laws regarding alcohol, and there is an expert across the way. He was an expert technician when he was a young fellow on the road and still qualifies for the court. In our laws we have an amount of 8 milligrams per 100 millitres of blood. There is a standard beyond which you are guilty of an offence. What I'm reading from you here is we don't have the same thing with testing for drugs, or could we have the same thing? This bill says just simply something at roadside. This doesn't test whether or not at the time of driving you had excessive amounts of drugs in your body that would then translate into impairment.
In all of those other countries, is there a law that says if you have a certain amount of a drug in your blood that you are guilty and that the test that you take, there's a presumption that that was what was in your body two hours ago when you drove the vehicle? Those are necessary requirements of the law as it relates to alcohol. Are they necessary in the law relating to drugs?
Mr. Comeau: Thank you, Senator Baker. I'll respond somewhat in reverse order. As it relates to the question of back extrapolation, with drugs it's exceedingly difficult. The metabolic rate of drugs is much faster than with alcohol. The metabolism of alcohol is on a straight line, and you could predict backwards and therefore say within the code if it's within the last two hours then it's deemed to be the level at the time of the test. With drugs we don't have that.
For example, if you smoke marijuana, you hit a peak at about 30 or 40 minutes. You'll start from zero and hit maybe 100 nanograms per millilitre in 30 or 40 minutes, and then within the next hour, or sometimes shorter, 40 minutes, you're back down to perhaps 10 or 20 nanograms, so it's exceedingly fast.
The witness from Alere was saying we have a short timeline. If you are testing at the roadside and catch a positive, to use the vernacular, with a screening test, then you need to get a confirmatory test very quickly. If you allow the period of two hours to catch a blood sample, frankly, forget about it because you will get zeros or low levels of the parent compound. You will catch the metabolites, and although it's not before this committee, it should be before the task force.
If one is looking at the use of drugs, chronic users, occasional users, medical users, it's a different situation, and there you might look at the host of metabolites and say this is a chronic user and therefore we might need a medical condition for that.
This is a tool at the roadside to give you a positive indication of drugs in the body at that moment in that driver, and then to go to something more definitive, you'd use something like this. It's like a sucker. You put it in your mouth and collect a sample of saliva. You put it in a vial, like you would a blood sample. You label it, seal it, do your marks of evidence, send it off to the lab. That's the evidential value. You have the actual level of drugs in the body at that moment captured in time.
[Translation]
Senator Boisvenu: Thank you for the technical information you have provided us. First of all, are you competitors?
Mr. Comeau: Yes.
Senator Boisvenu: My second question concerns the performance of your devices. Several devices on the market are used to screen for drug use. Is performance similar from one product to the next? I am sure you will all tell me yours is the best, but is performance similar?
[English]
Mr. Comeau: As I said in the opening statement, we are the three leaders in the field of drug testing at the roadside for drugs of abuse.
[Translation]
Senator Boisvenu: In how many countries are your products being used?
[English]
Mr. Comeau: DrugWipe is exclusively used in Australia across the country and packs like this for roadside testing. Along with Draeger, it's being used in the U.K. We're used throughout Central Europe and in many other European countries. Yes, it's being used in countries like Uruguay, Argentina and South America. It's at a very low level of use in North America compared with European tests.
[Translation]
Senator Boisvenu: This is a basic question, and I put it to Senator Carignan earlier. The purpose of this bill is not just to adopt an interdiction approach; it is also to take a preventive approach to ensure we have as few victims on the road as possible. I am not talking about victims who have used drugs, but rather victims who have not used drugs, because the people who use often survive.
Have you conducted any studies, in countries where you do business, on the impact that the use of your device by police has on reducing the number of car accidents?
[English]
Mr. Steinmeyer: The device has been used in Spain, and they have a reduction of fatalities by drug use by 17 per cent, so there is a clear significant reduction of the accidents caused by drugged drivers.
[Translation]
Senator Boisvenu: Have those kinds of studies been done? And, if so, do you have any copies of the various studies?
[English]
Mr. Comeau: Yes, our company has an extensive dossier on studies being done around the world. What Mr. Steinmeyer said is indicative of the effectiveness of drugs-of-abuse testing at the roadside. The information from Australia of course is very substantive because in Australia you have not only roadside use, you have effective control. In Australia they call it "random roadside testing,'' but that means that you block a highway and test absolutely everyone.
In the U.K., where they have just instituted it about one year ago, both Draeger and DrugWipe, the results are stunning. It's a very good approach.
Senator Boisvenu: Would it be possible for you to send the study you have in hand to the committee?
Mr. Comeau: Yes.
Senator Boisvenu: Thank you very much.
Senator Jaffer: Thank you for your presentations. I want to get a little bit of a handle on timelines. You are stopped by the police officer, given the first with the blue device that you have, take the saliva, found to be positive. What often happens is the car is stopped and it takes a while for the police officer to do the test, so how quickly do they have to do it? Does the next step happen at the police station or on the site? Please give me timelines. We know, for example, with impaired driving that the first test has to be done within two hours.
Mr. Comeau: With drug testing, the timeline is much abbreviated because drugs leave the body quickly, especially for marijuana. If we look at Australia where they have the random roadside checks, the entire performance is done within minutes, but that's because you block the highway, you test every driver. If you have a positive, the driver is taken immediately over to the drug and booze bus. It's right on site.
Senator Jaffer: It's parked nearby.
Mr. Comeau: It's right on site. They do a second test in the bus to confirm.
Senator Jaffer: That second test is what you showed.
Mr. Comeau: This is part of the second test. This is, then, the collection to go to the laboratory, and that's analyzed later. In the U.K., they're stopping at the roadside but they are requiring a blood sample and, of course, there is a timeline and the result of that is going to be indicative of the timeline. We're going to lose positive tests.
Senator Jaffer: What is the timeline?
Mr. Comeau: In taking a blood test, it could be 30 minutes or it could be two hours, depending on the availability of a trained technician.
In Arizona, for example, they have the ability to bring people to the roadside to do blood sampling so the timeline is very short — within 30 minutes.
Senator Jaffer: I'm not interested in how they set it up. How soon does the test have to be done, and within what parameters?
Mr. Comeau: As I said for marijuana, from the point of smoking to the time of collection for laboratory analysis, it's within two hours, and preferably within about an hour to an hour and a half.
[Translation]
Senator Dagenais: I have a lot of questions on my mind, and here is why. Normally, when you stop a person who is impaired, as Senator Carignan mentioned, that person has red eyes and a coated tongue and is driving erratically. He is made to breathe into the ALERT device.
When you see that the person is drug- or alcohol-impaired, that person cannot be allowed to drive. You call a tow truck, which can sometimes take an hour, especially at night. You can forget about the blood sample, because hospitals are often far away, and physicians refuse to take them so they cannot be compelled to testify in court.
In the case of your test, you talked about time. A breathalyzer test takes two hours. The person goes to the police station, is asked to breathe into the device, waits for 20 minutes, is asked to breathe into it again, and there is a second test. You say that drugs can be eliminated very quickly and the ideal is to administer two tests.
You know that defence experts will try to completely discredit the test. Have you previously had these tests challenged in court? When you know something is going to be challenged, you have to prepare accordingly in order to comply with the law. Have you experienced challenges by lawyers who have relied on experts to discredit the evidence?
[English]
Mr. Comeau: The challenges in Australia have come forward more about the process than the result. The only cases that go before the court in Australia are the ones from the secondary analysis. The first one is a screening test, and if it's positive, we go to the second one, which is the capture sample. That goes to the laboratory that prints the results out and forensic witnesses come forward. The degree of success is very high in that situation.
We're just about to learn what will happen in the U.K. because they're using blood samples and it's a longer period of time. I'm told in Arizona it's effective because they're able to draw a blood sample very quickly at the roadside and the forensic witnesses can support the charge of driving under the influence of drugs.
In Canada we have a different situation. In the absence of a random roadside requirement, meaning you can take the test at any time, at first we have to have a reason to take the test, just like in the case of alcohol. What's the reason for taking a drug test? The indicia of impairment under drugs are very different from alcohol. One should forget that you have alcohol impairment if you're looking for drug impairment, because the effects are extremely difficult to ascertain.
You may see some lane guidance in some good reports out of the U.S. on this, but that is only one indication. If you get into a standardized field sobriety test, you can get the stork reaction — the one-legged stand — and if you get into divided attention tasks you can start to see the effect of drugs like marijuana.
Now you're into 30 minutes or an hour's worth of testing before you can even capture, in the Canadian experience, enough evidence to go forward with the demand for a roadside drug test. That's the real problem in Canada.
If you can go quickly to a drug test you can think secondarily about the evidentiary value of the test. You have many good questions on this point.
[Translation]
Senator Dagenais: I have to tell you that you can forget about the blood test. The test is normally taken when the person has died and is incapable of providing a blood sample. Most police officers in Canada do not work in cities. The distances are long, and these incidents often occur at night. Unfortunately, I have to tell you that, in Quebec — I know this because I experienced it for 24 years — doctors do not want to take blood samples because they do not want to be required to testify in court. Of course, that is our problem, and it is up to us to solve it. Thank you, nevertheless, for your answer.
[English]
Senator Joyal: Mr. Comeau, I would like to follow the same line of questioning. The major risk of challenge would be based on the length of time that all the operations would take. I should say the closer you are to two hours, the less reliable the test will be in showing a positive result. The defence lawyer would argue on that basis, which is, as you say, essentially of a scientific nature.
Do you have any data on the kind of situation where the reliability has been challenged because of the time elapsed between when a person allegedly consumed a drug and when the test is completed? Then, of course, the presumption of guilt would be set aside on the basis of the result.
Mr. Comeau: There are good reports on the efficacy of secondary saliva testing from Australia, for example. The reason they went to saliva testing at the roadside is that it was quick. It was going to occur right thereafter.
As to the metabolic pharmacokinetics of marijuana in the body, it's well known and it's been well studied in many countries and so we know it's going to be very quick.
Your point is very clear. If you go to a blood sample and wait that extra one or two hours, or as Senator Dagenais said, in the middle of the night, you may not get it for several hours. Then you have a huge problem and that is you cannot confirm what you got at the roadside.
Another unique situation in Canada is we have the complementary structure of federal and provincial law. In Canada, the provinces bring forward motor vehicle legislation that says if you fail a roadside screening test then you may have your licence removed for a period of hours. It's a safety consideration. It's not about impairment, even though there probably is impairment. It's about safety.
If we think about how to bring a drug testing scenario into the Canadian context, we could say that a positive on a screening device like this, given a per se limit that is acceptable, could mean an immediate seizure of the vehicle and a suspension of licence, and then waiting for the confirmatory test.
In Canada we have the limit of 50 at the roadside, typically and 80 at the criminal level — usually 100 — for an impaired driving charge or driving over the limit. What would we have with marijuana? That's a big question. We might set it at two nanograms as they do in the U.K., or at any amount of drug, as in Australia, or you might set it at five nanograms as they do in Norway. What's the limit? Around two to five is all right.
These tests will detect five nanograms of marijuana at the roadside, so you have a very low limit to start with. If you have a positive, then what do you do? It's a matter of policy. If you go forward to this test, what is going to be your criminal limit? What is the overall situation? Was there an accident or significant indicia of impairment? What was the full circumstance to warrant a criminal charge as opposed to a traffic safety measure?
Senator Joyal: Was the challenge that came up in the past with regard to the use of the device based essentially on reliability, or on the factors surrounding the use of the test?
Mr. Comeau: As expressed by my colleagues, the reliability of the devices is well established. As I mentioned in my opening remarks, we're into 95 to 100 per cent certainty, accuracy and reliability. It has to do with the surrounding factors. We can, at the roadside definitely determine that drugs are present in the saliva at the moment we do the test, but, for that confirmatory test, if we wait too long, we have lost it. The courts typically would like to see a number, which would come from a forensic lab. If you wait too long, you won't have a number worth bringing forward.
Senator McIntyre: My question is one of clarification. It has to do with the presence, as opposed to the concentration, of the drug in the blood. Under the current law, as I understand it anyway, samples of bodily substances are used to determine the presence of a drug in the blood.
Bill S-230, the bill before us, specifies that samples of bodily substances will be used to determine the concentration of a drug in the blood rather than the presence.
My question is this: Are toxicology labs able to detect the concentration of a drug in the blood?
Mr. Steinmeyer: Maybe I can comment on that. Yes, they are. So they have different types of instruments over there; they are highly sophisticated. We call it defined analysis. These devices, whether it is gas chromatography, mass spectrometry or liquid chromatography, are able to perform a quantitative measurement that identifies different drugs, so it has a very high specificity.
Things that happen are that you will see antibody-based immunoassays like cross- reactivities that don't take place in that range with the sophisticated lab instruments.
The answer to your question is, yes, they are able to give numbers quantitatively and very precisely.
Senator McIntyre: Would you say that the results of the analysis of blood substances differ depending on what substance is being treated?
Mr. Steinmeyer: Yes, of course. Different drugs have different concentrations. The metabolic pathways are different, so the elimination time is different. In principle, all the drugs can be identified with these lab instruments. Of course, it's also a question of time, so, the sooner the sample is taken and the earlier it gets to the lab, the better it is.
Senator Sinclair: I'm a bit curious about the science around the effect of impairment through a combination of alcohol and drugs together and whether your machines are going to help clarify that question.
Any one of you can answer this question or respond to it. Does the science show whether there is an increase in the impairment effect on an individual through a combination of alcohol consumption and drug use? If so, is there a machine capable of detecting that, and is it one of these machines?
Mr. Comeau: The combination of, for example, alcohol and other drugs is known to be at least additive in some cases, meaning one plus one equals two. In some cases, one plus one equals four, which is synergistic. In the case of marijuana, it is very difficult because marijuana affects the frontal, the cognitive, aspect of the body or the brain.
Alcohol is at the back of the brain, and it's particularly affecting your motor functions. That's why you see very good indicia of impairment with alcohol. But, with marijuana, you're trying to measure a cognitive function, and you can't see that so clearly.
If you have a combination of alcohol and marijuana — and the study has been done at St. Michael's Hospital in Toronto and using MRI data — it shows that the entire brain is under load because everything is messed up in that situation. It's perhaps one of the most critical aspects of testing people and trying to determine what level of impairment exists in people if they are having alcohol plus marijuana, which is a very common mixture according to the roadside surveys. So that's a very apt question, but, unfortunately, there is not a very good answer yet.
The research worldwide is very short on this topic, but in Canada we have some of the leading researchers on this topic, at St. Michael's Hospital in Toronto and now at the CAMH, mental health and addictions, with Dr. Robert Mann.
Senator Sinclair: Was there any other responder?
Mr. Steinmeyer: I have a comment on that. There is indeed a study. It was published last year. In Baltimore, Maryland, there is the National Institute on Drug Abuse, and they were working together with the NADS — National Advanced Driving Simulator — in Iowa. They have a big bowl, and they have to place some cards in this bowl. They can do some studies giving people a joint to smoke, giving them a glass of beer or whatever, to see what the effects are. So this is a very impressive thing, this bowl, and this goes straight. It's not just staying there, but it's really moving. They figured out that there are indeed some more effects when THC is combined with alcohol. So this is a new study, as I said, published last year, and, of course, I can provide you with the paper on that.
Senator Sinclair: Thank you. Is it then conceivable that a person might not be impaired enough by alcohol consumption or, separately, by the drug consumption, but, when taken together, their impairment level could be detectable or notable?
Mr. Comeau: Yes.
Senator Sinclair: So we might be creating a new offence here, an alcohol and drug impairment?
Mr. Comeau: Yes, in our legislation, we should reflect on, as was brought up earlier, polypharmacy, the aspect of having more than one drug in the body causing impairment, and that's a critical aspect.
Senator Sinclair: It is. I just mention that because, currently, the Criminal Code refers to impairment by alcohol or drug, and so you recognize that this is a potential issue.
Mr. Comeau: Yes.
Senator White: Thanks to all of you for being here.
I guess, just so we're clear, the bill that we have before us today does not create an offence at all. We're just talking about tool usage to enable the police to actually perform their role. We understand that.
Mr. Comeau: Correct.
Senator White: The second piece is that we talk about blood and the fact that we are limited to a couple of hours, but there is something else we have the ability to get a warrant for. And that's hair, and hair, as I'm sure some of you at least know, holds the test for days not hours. So, realistically, in the future, if we got to a point where we were looking for a blood test, we could say blood or hair depending on the time limit, right?
Mr. Delfino: With hair, you are going to run into some issues with look-back time. So, for every half inch of hair, you're getting 30 days of usage. That is typically what they're clipping. So for a roadside use it would be very hard.
Senator White: Not roadside. I'm talking about warrants. We're talking medical personnel removing hair samples with root, as we do with sex assaults, domestic violence cases.
Mr. Delfino: When you put all of the samples in a column and say, "What are the benefits of using each sample?'' hair is fantastic for getting a longer-range, past-use history. Where the hair falls short is the recent; you're not going to see that recent window because, remember, you're getting the hair that's here. It's the follicles coming out, so you're not getting that more recent use of drug. So that is where oral fluid comes into play as, there, it is the more recent use that you're picking up. It's the marijuana that comes out that quickly as well.
Senator White: I appreciate that. After hearing all of this, and having seen in Australia it work actually, and nothing to do with this bill by the way, but the recommendation going forward on new legislation that we probably will see in the next six months, the recommendation will be really that we go to the secondary saliva test. Not that we spend time chasing the blood test, but easy to delay we heard from a former police officer in Quebec who talks about getting a car towed. Having been out there on the street for 24 years, I can tell you that that two-hour window was already a challenge for breath samples and we just had to get it started.
Your recommendation really here is that we get to a secondary saliva test? Nobody disagrees?
Mr. Delfino: No.
Senator Batters: Which of your particular tests is the pre-eminent one and most widely used worldwide?
Mr. Comeau: That's a good question.
Senator Batters: Which is the most widely used of the three of yours?
Mr. Comeau: In Australia this is used across the country.
Senator Batters: Worldwide?
Mr. Comeau: Worldwide, we don't have a stat on that. I would say this one just because there are so many of them being used.
Senator Batters: Briefly, what are the main advantages of yours?
Mr. Comeau: This one does not require a piece of equipment. This is the test. You don't truck along anything else. To do the test, you don't physically collect some saliva which may take 30 seconds, a minute. With this one you stick out your tongue, swipe it, put it on the cassette, press the button, the test is under way. It's rapidity, simplicity and accuracy. That's the advantage. That's why it's being used so widely in Australia and the U.K. at this moment.
Mr. Verghis: The answer is within five minutes.
Senator Batters: To one of other witnesses, what are the disadvantages of his device?
Senator Plett: And how much money are they?
Senator Batters: I want to know advantages and disadvantages.
Mr. Delfino: I had spoken earlier about instrument-based testing and the advantages. Alere manufactures a lot of point of collection devices, visually read devices and oral fluid ones as well. We selected to move forward with the DDS2 because it's an instrument and it gives an objective read. An officer or anyone running the test is not interpreting the test result.
That plays in a few different ways. Number one, you're not depending on lighting conditions, weather, light or dark to be able to read whether or not the right reaction has taking place. Number two, with the instrument printing the result, storing the result and giving you the test result on the screen, that's making the decision of what's in the sample and what the test results should be based on the detection levels in the test.
Now I'm not going to have a defence attorney come back and say, "How do I know you read that test result by the roadside accurately?'' We have the instrument doing the work.
Senator Batters: Mr. Delfino, you said that your device also tests for very widely used prescription drugs like benzodiazepines and opioids. Does your particular roadside test detect any level of those prescription drugs, any level of them, or does it have to be at a higher level before it detects a prescription drug that millions and millions of people are on?
Mr. Delfino: It's going to rule out a lot of the average prescription drugs. These are substance abuse tests. You set levels to detect these drugs at a level of abuse, not a level of casual use.
Mind you, you hear stories about youth having what are called ''skittles parties.'' Everybody steals their mom and dad's pills, they bring them to a party, they throw them in a bowl and they all indulge in whatever it is there. That's why it's important to have these.
You mentioned opioids as well. There's a worldwide epidemic with opioids — heroin abuse. We're seeing reports of people in Hartford, Connecticut, at a stop light in front of a police station slumped over the wheel with a needle in the arm. We see these images and we hear about the tragedies being caused.
Marijuana is the ground breaker in some states for drug testing. Drunk driving has been going on for a long time. This is just shining a bit of light on it. Being able to detect for opioids, morphine and heroin abuse is very important as well.
Senator Carignan: I just want to get the answer to Senator Sinclair. The legislation already talks of your example of both, and it's 253(2), where:
For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
[Translation]
I am listening to you, and I have previously met some of you. I increasingly realize that the current method under the Criminal Code is to have a drug recognition expert conduct the test many minutes after the fact. When you take the person into custody, you have to tell him that you have reasonable and probable grounds to believe he is driving impaired; you take him to the police station, and you wait for the drug recognition expert to arrive because he is not always on site, and that can take two or two and a half hours.
The tests take approximately 30 or 40 minutes to carry out. Then the expert may request a urine, saliva or blood sample. Distance and time are a problem.
I understand that introducing the devices you have here will considerably shorten the time because we are talking about reducing it from a matter of hours to approximately 10 to 30 minutes. Am I mistaken or is that correct?
[English]
Mr. Comeau: The issue with conducting the drug recognition expert test, which has been used for a decade or more in the United States, is that it's long. It's 30 or 40 minutes. One of the limitations of using DREs as expressed by DREs is that under the 12-step program they're required to classify the drug by which you're being impaired. That's a challenge presented to a person who has no knowledge of what's in your body or what you have done. Yes, they're looking at your eyes, they're looking at your motor functions and so on, and under the best guess scenario they come up with an answer or a probability.
What is occurring in many areas in the U.S. is the recognition that that is a limitation for the drug recognition expert. If they simply focus on the enhanced standardized field sobriety test, without forcing the drug recognition expert to say what drug is apparent, and to use a device at the roadside, then he doesn't have to guess.
I see you're impaired, I've collected evidence about your impairment, I've done a test and you've got cocaine or you have marijuana in your body, voila, I have a method of going forward to bring to the courts.
That is the hybrid approach that is being highly touted right now in the United States, and shall we say that would be something worthy of consideration in the Canadian context as well.
Mr. Delfino: Just to tack on to what was just said, what we're seeing in the U.S. is there's a bridge program between an SFST system and a DRE program and that's called ARIDE. The problem we have with the DRE program — and it's the folks who are working with the DREs worldwide that are bringing out this ARIDE program — is the time and the cost to educate and train for drug recognition experts.
In some cases it depends on the communities and they're widespread. As you mentioned, the time to get them there is sometimes lengthy. What ARIDE does is it trains these folks in two days so it's less costly. We're not moving them out to off-site locations to go through certifications. It takes the key elements of enhanced SFSTs with some of the DRE program, combines it to the ARIDE and it's a bridge between the two.
For instance, in the United States we're seeing this being promoted in every state because they can't afford to increase DREs who later may opt out for a higher pay scale position and now we don't have that trained individual out on the street anymore.
A place like Kansas, Kansas State Patrol, they're training in this last quarter of the year several hundred officers just on an ARIDE program. It's their experienced DRE coordinates and trainers that are rolling these programs out to them.
It does add some evidence to the probable cause with the drug screening that's happening. Some folks choose to run it before those tests have been conducted in the field, others may run it after. With the DDS2, you can run that test, go do your ARIDE or your DRE, if that's part of the program, and then come back and read that later. So this doesn't influence their decisions. It's supposed to help and support their decisions and not necessarily influence what their outcomes may be.
Senator Plett: Three very quick questions. I'm looking at your draft here. One question, and Senator White alluded to it, is about the residue staying in the hair. Unfortunately, he just left. But would that mean that he would have an advantage over the rest of us?
Mr. Steinmeyer: Me, too.
Senator Plett: Seriously, the question I do have is you said you needed to swab left to right. What happens if you swab right to left?
Mr. Steinmeyer: Nothing. It will collect the same amount.
Senator Plett: It makes no difference? So it's not mandatory to do it one way or the other?
Mr. Steinmeyer: No.
Senator Plett: Last question. Your paper shows six types of drugs. Is that the six that you can identify or are there more?
Mr. Steinmeyer: We have two more. We have methadone and ketamine. This is pre-programmable, so we can go from five up to eight, due to the order of users.
Senator Plett: So it will do what this is showing? It will say that the top three are negative and then cannabis is positive, and there could be a couple of them that would be positive?
Mr. Steinmeyer: Of course. This would be the poly-use or the multi-use. If there is more than one drug that is positive, this helps the officer to further investigate and head his investigation and disposition.
This is what we have learned from police officers in Germany. At the beginning, they had no idea. They might have a feeling there is one drug, but after doing a test they know he or she is positive for cocaine. So then they do the toxicology analysis just for cocaine. So they are saving money and time because we have a tailored analysis afterwards, and the more drugs, the better. Sometimes ketamine, for instance, is not a European drug. It's getting more popular, but it's more an Asian drug, but after a while it could be landing in Canada. Then we can be flexible and add that on to our tests.
Mr. Delfino: What we've seen is even in the U.S. and even in some states, if you want to narrow it down that close, when you talk about the drug menu, it can vary from region to region. I know in the U.S. we have a heroin epidemic. Marijuana is being legalized. We have just added a handful more states south of you on both coasts.
In a state like Kansas, and I referred recently with them, in one area they have an opioid epidemic, in another area they are still battling methamphetamine. In some states that doesn't even exist. So always trying to narrow it down to a menu of drugs to go out there with would certainly not help the program. Obviously, the more drugs you have, the better off and the wider the net.
In speaking with the collection process, most of these products do have an indicator that shows you collected enough oral fluid. So there is no science on how to do it. It's basically swabbing and gathering the oral fluid. If they provide an indicator, it shows the officer when a sufficient sample has been collected, which is important, obviously, because once you run the test you want to make sure there's enough there to run the test. From an instrument perspective, they all give out single drug results individually per drug class.
The Chair: Thank you, gentlemen, for very interesting and informative testimony. Much appreciated.
(The committee adjourned.)