Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 19 - Evidence - December 8, 2016
OTTAWA, Thursday, December 8, 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); and Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women), met this day at 10:31 a.m. to give consideration to the bills.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Honourable senators, the business today is to deal with clause-by-clause consideration of two pieces of legislation. I should advise the committee that we do have officials from Justice in attendance, so if there are any concerns or questions with respect to technical matters, we can call them forward.
We will begin with Bill S-230.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-230, An Act to amend the Criminal Code (drug-impaired driving)?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the short title in clause 1 stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 2 carry?
Senator Baker: As the critic of the bill, I'd like to get the opinion of the Department of Justice on this legislation, specifically relating to testimony that we had at the last committee hearing on this bill. I'd like to ask the officials their opinion concerning a certain matter in clause 2.
The Chair: Would the officials like to come forward and identify yourselves for the record?
Hal Pruden, Counsel, Criminal Law Policy Section, Department of Justice: Mr. Chair, my name is Hal Pruden, and I work in the Criminal Law Policy Section of the Department of Justice.
The Chair: Did you hear the question?
Mr. Pruden: I did.
Senator Baker: The last time I spoke to Mr. Pruden was about seven years ago in this committee room concerning section 254 of the Criminal Code, which is what we're dealing with today. He is a recognized expert in this field. I don't suppose he has a copy of the case called R. v. Jaycox, which was litigated on the constitutionality of this section. This went to the Court of Appeal concerning the constitutionality, and Mr. Pruden is quoted extensively in the judgment of the court.
I'll give you a copy, because it deals with the section we're dealing with today.
All of that to say that you're an expert, recognized by the court.
In clause 2 of the bill, here is what concerns me. Many things concern me, but the actual wording where it says "a device of a kind that is designed to ascertain the presence of alcohol or drugs in the blood of a person and that is approved by the Attorney General . . . .'' Then later in clause 2 it says "a sample of either oral fluid or urine that, in the peace officer's opinion, will enable a proper analysis to be made to determine the concentration of drugs in the person's blood.''
Now, we heard evidence before this committee that that is an impossibility. The evidence we heard before the committee was that you cannot determine the concentration of drugs in a person's blood by an oral fluid that we're suggesting here in this legislation.
Do you agree with the evidence that we heard before the committee that this is problematic, that you cannot determine the concentration of drugs in a person's blood?
Mr. Pruden: I should say one preliminary thing, which is that an expert is only a person who can get the answer within two or three phone calls.
The short answer to your question would be yes, my understanding is that it's correct to say that the oral fluid level of drug and the urine level of drug cannot be equated to a blood drug concentration the way that, in alcohol breath testing, an alcohol level in the breath can be converted to a blood alcohol concentration.
Senator Baker: So there is no conversion ratio, as they call it?
Mr. Pruden: Yes.
Senator Baker: So it's scientifically impossible?
Mr. Pruden: That's what I understand from the Drugs and Driving Committee of the Canadian Society of Forensic Science, which provides advice on scientific matters related to drugs and driving to the Department of Justice.
Senator Baker: That's the evidence we heard before this committee. You've now verified it. In law, you would call it — well, it's an impossibility; it's an absurdity.
We don't want to pass something that's — well, it may eventually pass because there is the possibility of amendment in the other chamber. But this being an impossibility, do you see any further problems with this in that it perhaps cannot be amended just by removing the offensive words? From sections 253 to 258 of the Criminal Code, there are several references to alcohol in the blood system or drugs in the blood system, the 80 milligrams per 100 millilitres in the case of alcohol, and so on.
Do you think this bill is amendable? I'm putting you on the spot, but obviously we can't — in the final analysis, in third reading in the Senate — approve something that is an impossibility. We can't do that. Do you think it's possible to amend this legislation to make it not an absurdity?
Mr. Pruden: It's the word "blood.'' I'm looking at clause 2, subclause (3), and it mentions a new subsection 254(3.4) (a). It's the one that uses the words "concentration of drugs in the person's blood,'' and it would be possible to replace the word "blood'' with something that relates to oral fluid concentration or urine concentration.
Senator Baker: The judge just appeared before the committee, and he has heard some of these cases. So you think it is possible to amend this so that it won't be an absurdity, so it won't be an impossibility. This is the key section of the bill, clause 2. Obviously, when it finally passes the Senate, it can't contain these clauses.
Let me ask one further question. What concerns me as well is we have a member here of the police chiefs international association. He is sitting to my left. He attended the international convention of police chiefs recently. They are the ones that certify peace officers to be drug recognition experts. There is a school in Quebec that Senator Dagenais has attended, École nationale de police du Québec, where they train these people. This bill removes that requirement of having an expert. It totally removes it by replacing it with "peace officer.'' Do you understand that to be the case? It says "peace officer'' instead of a "DRE'' person.
In your opinion, would there be challenges in court if a police officer who is not qualified says he or she has reasonable grounds to believe that a person is impaired by a drug and the defence counsel says they're not a certified expert? Do you think there's a danger there?
Mr. Pruden: Let me speak of the particular subclause, which is clause 2, subclause (3). It is speaking of section 254(3.4) of the Criminal Code. It proposes to replace it by saying that if the peace officer has reasonable grounds to believe, based on physical coordination tests and one of two things, either the evaluation of the drug recognition evaluation officer — so the drug recognition evaluation officer possibility is maintained by the bill — or without going to the drug recognition evaluation officer, with reasonable grounds to believe the offence has occurred, then the peace officer could, on the basis of the standard physical coordination tests and on the basis provided for above in subclause 2(2) —
Senator Baker: Demand a blood sample.
Mr. Pruden: They could demand a blood sample if they have either of those two bases.
Currently, a peace officer who has reasonable grounds to believe that an offence of impaired driving has occurred may, under the current provision of the Criminal Code, demand that the person go to a drug recognition evaluation officer. So that is a change the bill would make.
Senator Baker: Yes. It's a substantial change, because "drug expert'' is replaced by "peace officer'' making the final recommendation to get a blood test.
Mr. Pruden: It says there are two avenues. One would be to go the existing route through the drug recognition evaluation officer. There would be a new possibility, if the peace officer has the reasonable grounds to believe and has done the physical coordination tests and has either gone to a breath test or —
Senator Baker: I'm sorry, Mr. Pruden, but you have not answered my question. My question is this: Would that not open up an avenue of challenge that this person is not an expert and this person cannot have reasonable grounds to believe unless they are a recognized expert?
Mr. Pruden: We should keep in mind that currently — for example, with alcohol — if the peace officer, who is not a qualified technician —
Senator Baker: Like Senator Dagenais.
Mr. Pruden: — has reasonable grounds to believe that someone is committing the offence of driving while impaired, that peace officer can make a demand without going through the approved screening device, the roadside screening test, to go immediately to the approved instrument test which is used in evidence in court. It's somewhat akin to being able to do that with the blood demand for drug analysis as opposed to the DRE first.
Senator Baker: It will be challenged.
What do you suggest we do with clause 2 of that bill, which has two impossibilities in it?
Mr. Pruden: I'm sorry. I did see the one impossibility.
Senator Baker: It's mentioned twice, Mr. Pruden.
Mr. Pruden: The concentration of drugs was one.
Senator Baker: Yes, that's at the beginning: "approved screening device.'' That's what we're talking about right at the beginning: a device to ascertain the presence of alcohol in the blood of a person.
Then you go to (3.4)(a):
(a) a sample of either oral fluid or urine that, in the peace officer's opinion, will enable a proper analysis to be made to determine the concentration of drugs in the person's blood; . . . .
So it's twice in the same clause.
Mr. Pruden: I spoke to the second place.
Senator Baker: You didn't speak to the first place.
Mr. Pruden: Earlier.
Senator Baker: You said in the second one that it is an impossibility.
Mr. Pruden: And that the word "blood'' could be replaced with "oral fluid, or urine.''
The first, which is the definition of "approved screening device,'' instead of saying "alcohol,'' it could be "alcohol in the blood,'' which is the way it is now in the Criminal Code. And it could say "or drugs,'' and then it could specify oral fluid.
Senator Baker: One or the other, and not as it states here.
Mr. Pruden: Not just blood.
The Chair: Senator White, do you have something on this clause?
Senator White: Thanks for being here today.
So we're clear, the alcohol testing device, so an ALERT in the case of when I first started, doesn't actually test for blood alcohol either. It actually tests air from your stomach, which is an indicator that alcohol is in your blood.
You're stating that in the case of drugs through saliva, we don't get the same test. But we had experts in front of us that showed us the devices that do test for drugs in the system. Are you saying that the word "blood'' is the problem, not that there's a problem with testing for drugs? Are you saying the word "blood'' shouldn't be there? Is that your focus?
Mr. Pruden: I'm saying "blood'' is appropriate for the alcohol part of the definition, but it should be broader if one is speaking of drugs, because the samples that could be taken by demand are oral fluids.
Senator White: So instead: "blood and/or bodily fluids''?
Mr. Pruden: It could say "oral fluid.''
Senator White: You understand the second part of this legislation doesn't create new offences?
Mr. Pruden: Correct.
Senator White: It's a device-driven opportunity to provide further devices?
Mr. Pruden: Yes. It would be for the investigation of the current —
Senator White: It's a tool.
Mr. Pruden: — whereas with alcohol we have two ways to charge.
Senator White: Impaired driving and over 0.08?
Mr. Pruden: Correct. With this bill we continue to have just the one driving offence: impaired driving by a drug or alcohol or a combination of the two.
The Chair: Senator Baker, are you tabling an amendment?
Senator Baker: No, I'm not tabling an amendment. I listened to the evidence yesterday, and I'm listening to an expert now before us who says what is in clause 2 is an impossibility.
That leaves open to the committee a choice. This bill could be approved on division and then amended at third reading in the house by the mover of the motion. I think that's a possibility. It's unfortunate that these bills can't go through the Department of Justice to be vetted. We obviously cannot finally approve at third reading a bill that's an impossibility. We can't do that.
Senator Plett, I'm sure you agree.
Also, I'd love to hear from Senator White and Senator Dagenais on removing the drug expert from the provisions of the Criminal Code.
You're an expert, Senator Dagenais, and Senator White is a member of the police chiefs who set the standards in the United States. You don't have to give evidence here, but certainly to consult with us behind the scenes before we do third reading of this bill in the chamber.
Senator Sinclair: Sir, one of the concerns I have is that the roadside screening devices for drugs that we've heard about to this point in time only test for opioids and don't test for all drugs. Do you agree with that?
Mr. Pruden: I think I'm supposed to answer through the chair. I'm not sure of the procedure on that, but I will say, Mr. Chair, I thank the senator for the question.
It's correct that the oral fluid screening device will check for the presence of the drugs that have been engineered for the particular oral fluid screening device. I would note that in the United Kingdom they test only for THC, a chemical in cannabis, and they test for cocaine. There are many other drugs that would not be picked up by the oral fluid screening device.
Senator Sinclair: With this particular clause requiring that a peace officer send someone for a blood test, they have to have come to the conclusion, based upon the roadside screening device, that they're impaired by a drug that is caught by the roadside screening device, which would only be opioids at this point in time based upon the information we have.
Mr. Pruden: THC and cocaine are not opioids, but those are the two that the United Kingdom tests for.
It's clear that oral fluid screening devices are engineered for particular drugs and not every drug in the huge range of drugs that exist. It remains the case that under the bill the officer could either send the person to the drug recognition evaluation officer who does test for a broader range of drugs than the oral fluid screener tests, or they could send the person for a blood test or for a test of the oral fluid or for a test of the urine.
Senator Sinclair: With a warrant.
Mr. Pruden: By demand, under the statutory demand.
Senator Baker: Upon arrest. They are arrested.
Mr. Pruden: Once the police have reasonable and probable grounds to believe that the impaired driving offence has been committed, they are authorized to make those demands.
In a similar way, once they have reasonable or probable grounds to believe that either alcohol-impaired driving has occurred, or over 80 milligrams of alcohol in the driver has occurred, they may make a demand for an approved instrument test at the police station, which can be used in court. Only the evidential test on the approved instrument can be used in court.
Similarly, the oral fluid device would be a screening device; it wouldn't be the evidence relied on in court. The evidence for the court would be the observations of impairment at the roadside plus the drug evaluation or the analysis result of the blood sample, urine sample or saliva sample.
[Translation]
Senator Carignan: I see you have a good grasp of the process in the act, which gives two options to the peace officer. The officer can turn to the drug recognition expert or use samples, depending on the step of the process, if the first step has been taken. So, after the first detection step, the two options are available. Often, the choice will depend on the availability of a drug recognition expert in the sector in question.
My question concerns two issues. First, you said in the United Kingdom, the testers could cover two families of drugs. You likely heard the experts who came here to talk about devices that can detect several families of drugs. These devices simply need to be programmed to detect the other families of drugs. Under the amendment to the Criminal Code, the Attorney General of Canada, by order, must certify or approve the detection of other families of drugs based on the device's analysis.
[English]
Mr. Pruden: To answer the question, I believe I first have to make reference to the way that the Attorney General of Canada approves the alcohol equipment. The Attorney General turns to the advice of the Alcohol Test Committee of the Canadian Society of Forensic Science, which has established evaluation standards that must be met. If those are met and if the committee feels that the particular equipment is robust and advisable for use in Canada, it will tell the Department of Justice and the minister that this equipment could be recommended for use in Canada. The minister then has to make a decision whether to add it to the list of approved screening devices for alcohol testing.
It is conceivable that a similar process, as contemplated in the bill, would be used for oral fluid drug screening devices. That means that the minister would turn again for advice to the Canadian Society of Forensic Science, but this time to the Drugs and Driving Committee. Currently, the Drugs and Driving Committee is looking at oral fluid screening devices in terms of what evaluation standards would be needed to test the devices.
As you mentioned, it is possible to engineer or program more than one drug in, but my understanding of the U.K. thinking is that they're going after the most commonly used drugs by drivers, so they've selected THC and cocaine.
I don't know the exact cost, but there are greater costs with the greater number of drugs that have to be engineered into the equipment. So far the U.K. has said they're happy with those two that are most prevalent in the U.K.
[Translation]
Senator Carignan: My second question concerns the quantity of drugs in the blood. Senator Baker raised an important point. If paragraphs 2(3.4)(a) and (b) of the bill were amended to refer to the quantity of drugs in the body rather than in the blood, it would align perfectly with the current paragraph 254(3.4)(a) of the Criminal Code, which refers to the presence of a drug in the body. Would this solve the problem raised by Senator Baker?
[English]
Mr. Pruden: I think you would find, Mr. Chair, that the forensic toxicologists, forensic scientists, would say you can't come up with a scientific concentration of drugs in the body. You have to pick a particular fluid or fluids. It could be said alcohol is in the blood because they are able to use a ratio and convert. However, when it comes to drugs, they would be able to make a concentration of a particular drug in the blood or its concentration in the oral fluid or that drug's concentration in the urine.
It might be, from the scientific point of view, much more specific, and from their point of view, they would be able then to give you a concentration. But just to say a concentration of drugs in the body, I don't think they could tell you they can do that.
[Translation]
Senator Carignan: So, the current Criminal Code would not apply.
[English]
Mr. Pruden: I'm looking to section 254.
Senator Carignan: I'm referring to paragraphs 254(3.4)(a) and (b).
Mr. Pruden: Yes, there's a very big difference. The difference is that, currently, rather than concentration, they are determining under paragraphs 254(3.4)(a) and (b) whether the person has the presence, which is very different from determining concentration.
[Translation]
Senator Carignan: If we simply removed the notion of the quantity of drugs in the blood and returned to the original clause and the notion of the presence of a drug in the body, would this solve the problem raised by Senator Baker?
[English]
Mr. Pruden: It would look after the difficulty that Senator Baker earlier pointed to. You would then have the existence of the drug in the body. You would not have a concentration that could be referred back to by toxicologists, but it would show that that drug was in the body.
[Translation]
Senator Carignan: So, this would solve the problem raised by Senator Baker in relation to subclause 2(1), which contains the definition of an "approved screening device.''
[English]
Mr. Pruden: Yes. That would also solve the concern that the word "blood'' is used in respect of drugs. If it were the presence in the body, showing alcohol or drugs in the body, that would overcome the concerns related to the word "blood'' being used alone.
Senator White: Just so we're clear, the people who were here — I spoke to them afterward — did talk about the fact that you could test for multiple drugs. I'm looking at Australia, which uses the exact equipment. The gentleman who was sitting in the middle said they test for tetrahydrocannabinol, methamphetamine, crystal methamphetamine and MDMA because they are the three largest drug issues in Australia. They don't have a crack cocaine challenge. In fact, they don't have the same challenge around fentanyl that we're facing.
I heard — and somebody can correct me — they can test for that they wish, and most places are testing for the most common drug.
Second, Senator Baker talked about removing the drug recognition expert. I don't see anything in here that removes the drug recognition expert. My perspective would be that the DRE is extremely important to combatting drug-driving offences. To be fair, unless you see something there, I don't see it.
Mr. Pruden: I would agree that the drug recognition expert pathway remains available, and the bill is adding another pathway that the officer could use.
Senator White: One more tool in the tool chest.
Mr. Pruden: The tool could be used to get to the end result of obtaining a blood sample that would be — if the earlier suggestion by Senator Carignan was used — showing a presence of the drug or the alcohol in the body.
Senator White: Thanks, Mr. Pruden. I appreciate it.
The Chair: I get a sense that Senator Baker suggested that any amendment coming forward would be carried forward on third reading. We have consensus on that.
Shall clause 2 carry?
Senator Baker: On division.
The Chair: Carried, on division.
Shall clause 3 carry?
An Hon. Senator: On division.
The Chair: On division.
Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Carried.
Does the committee wish to consider appending observations? No.
Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed.
Thank you.
We'll now move to clause-by-clause consideration of Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women).
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women)?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clause 2 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall the preamble carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Senator Batters: On division.
The Chair: Carried, on division.
Does the committee wish to consider appending observations to the report? No. Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed.
That completes our business for the day. Is there anything else members want to raise?
Seeing nothing, before we adjourn and in light of the fact that we're not going to be meeting next week, I want to take this opportunity to thank you and our outstanding staff for another year of very solid work by this committee.
Hon. Senators: Hear, hear!
The Chair: I'm well into my seventh year on this committee, my fifth as chair, and we've consistently done good work. But as we all know, this year has been quite different. We haven't had the legislative workload from the new government, and we've had the opportunity to undertake and essentially complete a very important and much-needed study on delays in our justice system. I'm optimistic, as I know most if not all of you are, given our response to our interim report, that the final report will not be a shelf-sitter but a document that will be a catalyst for many overdue changes in the justice system.
Thank you all for your continuing good work and for not giving me too much of a hard time. Merry Christmas, happy holidays and all the best for the new year.
(The committee adjourned.)