Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 43 - Evidence - May 10, 2018
OTTAWA, Thursday, May 10, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, met this day in public at 10:30 a.m. to give consideration to the bill; and in camera, for the consideration of a draft report.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Good morning, honourable senators.
It’s my pleasure this morning, in our consideration of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, to welcome the representatives of Public Safety Canada and the Department of Justice.
[Translation]
On behalf of Public Safety Canada, I’d like to introduce someone who is a familiar figure at our table, Mr. Trevor Bhupsingh, Director General of Law Enforcement and Border Strategies.
[English]
Good morning, Mr. Bhupsingh. It’s a pleasure to welcome you. I understand you are accompanied by Rachel Huggins, Manager, Policy Development; welcome Ms. Huggins. From the Department of Justice, familiar witnesses, I would almost say friends of the Legal and Constitutional Affairs Committee, Ms. Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section and, of course, Mr. Greg Yost, Counsel, Criminal Law Policy Section.
Welcome. I understand Public Safety Canada has an opening statement.
Trevor Bhupsingh, Director General, Law Enforcement and Border Strategies, Public Safety Canada: Good morning, Mr. Chair and honourable senators. My name is Trevor Bhupsingh, I’m the Director General, Law Enforcement and Border Strategies at Public Safety Canada. I’m here with my colleague, Rachel Huggins, Manager of the Drug Policy Division at Public Safety.
Thank you for having us here again today. I will provide remarks on behalf of Public Safety Canada and Department of Justice Canada. We are happy to reply to your questions, specifically regarding some questions that came from my testimony on February 14.
[Translation]
We would like to first provide you with an update on the process for evaluation, testing, and approval of oral fluid drug screening equipment, or drug screeners. As I mentioned at my earlier appearance, oral fluid drug screeners would be a new tool for Canadian law enforcement. The process to identify and approve screeners in Canada is an independent and objective process which takes time.
[English]
Drug screeners are used in other countries, including Australia and the U.K. and have undergone rigorous testing and evaluation processes before law enforcement officers have been able to use them in the course of a criminal impaired driving investigation. The process to introduce this new tool for use by Canadian law enforcement requires a similarly rigorous independent testing and evaluation process, involving a number of partners, collaboration with outside stakeholders and industry, and approval by the Attorney General of Canada.
Department of Justice Canada officials are here and can speak to how and why this process was established. I can tell you that since the Oral Fluid Drug Screening Device Pilot Project that concluded in the spring of 2017, led by Public Safety Canada and the RCMP, the government has viewed these screeners as a useful tool for law enforcement. A copy of the final report from that pilot project was provided to this committee earlier this year.
The process to approve the screeners has included the development of standards and evaluation procedures by the Drugs and Driving Committee of the Canadian Society of Forensic Sciences. These evaluation standards are the specific requirements that all screeners must successfully be tested against in order to be recommended by the Drugs and Driving Committee to the Attorney General of Canada for use by law enforcement.
Public Safety Canada and Justice Canada have partnered to support the approval process of the screeners and the role of Public Safety Canada has been to support the laboratory testing of the screeners. We have done so by entering into a memorandum of understanding with the National Research Council to perform the laboratory testing portion of the evaluation.
To date, the DDC, the Drugs and Driving Committee, is actively involved in evaluating a number of screeners. At the National Research Council the screeners will be tested against the evaluation standards and the results will in turn be sent to the DDC and then the DDC will evaluate those results.
As soon as a drug screener is determined by the DDC to meet the evaluation standards, a recommendation will be made to the Attorney General of Canada. And once the bill comes into force, the Attorney General will then have the legislative power to approve drug screeners through a ministerial order. At that time the Department of Justice would follow the procedures that apply for all ministerial orders. This includes publication in Part I of the Canada Gazette of a notice of intention to make the ministerial order. This step is typically followed by a 30-day public consultation period. Upon the expiry of the public consultation period, the Attorney General of Canada may sign the ministerial order and arrange for final publication in Part II of the Canada Gazette.
Once the legislation is passed and the screeners are approved, then law enforcement from all jurisdictions will be able to procure the screeners as another useful tool for law enforcement to help remove drug-impaired drivers from Canadian roads.
As the screeners are moving through the testing, evaluation and approval process, Public Safety Canada is also taking a number of steps so that the screeners can be approved for police forces across the country and they will be able to do that and implement it without delay.
For example, Public Safety Canada has struck a small federal-provincial-territorial senior officials working group that is meeting on a regular basis to discuss and explore screening and procurement options and issues. Once jurisdictions decide on a drug screener for use by law enforcement, in a circumstance that one or more screener is approved and listed, Public Safety Canada and the RCMP will roll out a new national master, train-the-trainer curriculum on the use of approved screeners for police services across Canada. Law enforcement trainers will be brought together for national and regional train-the-trainer sessions to ensure that the training on the screeners can happen in the most efficient manner in all jurisdictions.
Members of the committee, oral fluid drug screening is a new tool for Canadian law enforcement and we are taking the time required to ensure we put the most reliable tool in the hands of law enforcement. However, it is important to note that when drug screeners are approved, they would be but one tool to help remove drug-impaired drivers from Canadian roads. Training of law enforcement officers to recognize the signs and symptoms of drug impairment in drivers is critical to reducing the occurrence of this serious crime.
Our officials, in collaboration with the RCMP, have been working to develop and deliver information and training materials for all Canadian law enforcement on how to better detect drug impairment. For example, the new standardized field sobriety testing, SFST, training curriculum includes an introduction to drug-impaired driving. That is now available. Any officer being trained in SFST since January 2018 will also receive this course as part of their training. The training focuses on the most commonly seen clues that indicate recent drug use and impairment, with a specific in-depth focus on cannabis impairment.
Additional training is also available online, including training on drug impairment geared toward already-trained SFST officers, an online basic education session about drug-impaired driving for non-SFST-trained members and an in-person International Association of Chiefs of Police-certified SFST refresher course is also available.
Thank you, honourable senators, for the opportunity to provide you with additional information on the process to evaluate oral fluid drug screeners.
With regard to the correlations between cannabis use, driving abilities and impairment, Justice Canada can speak to the scientific foundation underpinning the proposals that are part of Bill C-46, but we would like you to know that Public Safety Canada has entered into a three-year agreement with the Centre for Addiction and Mental Health to continue to build scientific studies relating to the effects of THC on driving.
With that, I will close. We are happy to answer questions about that research project or anything else you would like to inquire about.
The Chair: Thank you very much, Mr. Bhupsingh, for your presentation. Since you have called upon the Department of Justice Canada to speak to the scientific foundation underpinning the proposals in Bill C-46, I wonder if Ms. Morency or Mr. Yost would want to use that invitation to present to the committee any essential information on that.
Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice Canada: I believe the committee has the essential information, because you’ve had the chair of the Drugs and Driving Committee before you to discuss the research they did and the report they made to the Minister of Justice. That is available on their site. That’s with respect to THC, which has been the centre of concern here.
It is clear there is unanimity among toxicologists that it is an impairing substance. There is, however, a great deal of uncertainty as to exactly what level constitutes an impairment.
Various jurisdictions have picked different levels. Some American states are at 5; the United Kingdom is at 2; and Ireland is 1. The government has been very clear that it has a precautionary approach with respect to THC. In light of the uncertainty as to exactly where the cutoff is, the government has proposed two levels, the 2 nanogram level for the summary conviction offence and the more serious hybrid offence at 5 nanograms. You also had witnesses recently who spoke of the correlation — which might not be the right word — that if you are detecting 25 nanograms at the side of the road, which is the DDC’s proposal, you will have a person who has recently consumed. Recent consumption of cannabis is associated with impairment that affects your ability to drive.
The Chair: Thank you. No doubt there will be questions.
[Translation]
Senator Boisvenu: Mr. Bhupsingh, I am quite concerned by your testimony. In February, we asked the minister for the timeline for approval. We were told it would be the end of March or April. We are almost in the middle of May. I have listened to you and you speak of consultations and of publication in the Canada Gazette. We will be into next fall before the minister makes a decision.
What frightens me even more is that once the bill comes into force — and that is what you are saying — the Attorney General will have the legislative power to approve the devices. In other words, you cannot approve the devices until the bill has passed.
I asked the question last February: when will the bill be adopted? It was supposed to be passed in April. Nothing has been done yet. I asked the minister how many RCMP detachments in Canada have a drug recognition expert available seven days a week. We still have not received an answer.
My question is the following: if cannabis is legalized on July 1, how many months will go by while Canadian police officers do not have roadside screening devices? How many months will go by between legalization and the moment when drug recognition officers are trained everywhere in Canada? What is the period during which there will be neither drug recognition experts nor devices to evaluate the level of impairment of drivers who consume marijuana and are on our roads?
[English]
Mr. Bhupsingh: Thank you very much for the question. As we have come to this committee to update the timing of the approval of devices, it’s an independent process, as I mentioned. Officials in the department don’t have any control over the testing of the devices. At the time I presented at the committee back in February, in terms of the evaluation of those devices, that was the time frame.
In the interim, over the past couple of months, that process has continued. It’s being run by an independent organization that is setting standards and criteria. The manufacturers are submitting their devices to be tested. I’m not privy to that testing or the approval of those devices.
I can tell you that we have a lab that will be testing devices. I can’t predict how long that will take. It’s a technical process. It’s hard for me to predict exactly the time frames that a device will become available.
We are planning for training on the devices. That is long under way in terms of how we will carry out that training.
[Translation]
Senator Boisvenu: The government has known since 2015 that it was going to legalize marijuana. In 2015, the Conservative government tabled Bill C-73 in order to provide a framework for roadside drug screening. Mr. Blaney tabled Bill C-226 in 2016. I see that the content of the current bill, Bill C-46, is closely related to these other bills.
What we are hearing this morning is that we are still not ready to purchase the devices nor to determine which devices will be used. The drug is going to be legalized on July 1 and we will probably not have the devices before next fall. Do you realize that, for four to eight months, this drug will be legal, including a consumption level of 2 to 5 nanograms, but police officers will have received no training, nor will they have any device for roadside testing? Are you well aware of that?
[English]
Mr. Bhupsingh: We have always said that as part of the DID proposal in the bill that devices are one lever of other levers currently being used by law enforcement. There is already an impairment charge in the Criminal Code where officers can charge for impairment. That exists; that’s not changing.
We also said that we would increase other levers that police officers have, including SFST training and DREs.
Yes, there is some unpredictability around the device and the identification of the device as it goes through an independent and technical process. At the same time, there are other levers that are available, and there is an existing offence in the Criminal Code.
Maybe I can turn to my Justice colleagues to expand on that last point.
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: I might add that if Parliament adopts Bill C-46, when it receives Royal Assent, Part 1 will come into force. That means that in addition to the existing drug impairment offence we have now in the Criminal Code and in addition to the authorities that exist now in the Criminal Code to enable roadside testing and assessment for drugs, Bill C-46 will bring into immediate force Part 1, which are the new per se offences for drug impairment, immediately.
There will necessarily be a bit of a lag between the Royal Assent and coming into force of Part 1, and even the ministerial order approving an oral fluid drug screening device, because that process cannot be initiated until the bill receives Royal Assent and comes into force.
We can assure the committee, we understand the concern. It remains a commitment for the government to do everything we can to support and facilitate the timely implementation of all of the measures supporting Bill C-46, as my colleague has outlined on training enhancements under way now, and to work towards a timely process to facilitate getting to the ministerial order on the devices.
[Translation]
Senator Dupuis: My first question is for Mr. Bhupsingh. Thank you for being here. On page 9 of your presentation, you refer to a new national master training curriculum. Is the purpose of this program to train the trainers or the police officers? Can you tell us more about it?
[English]
Mr. Bhupsingh: Thank you for the question. I will turn to Ms. Huggins to explain the details of the training. To answer the senator’s question, it’s a national program to train the trainers who would then train law enforcement.
[Translation]
Senator Dupuis: Perfect.
[English]
Rachel Huggins, Manager, Policy Development, Public Safety Canada: It is correct that it is a train the trainer program, we are going to take law enforcement trainers who already exist and provide them with, partially, the drugs that impair training, so more on the signs and symptoms related to drugs, and then on the specific device that gets approved.
[Translation]
Senator Dupuis: I have a complementary question. Your text states that law enforcement trainers will be brought together to provide national and regional sessions in order to ensure that training on the screening devices can happen in an efficient manner in all jurisdictions. So, how will these national and regional training sessions work?
[English]
Ms. Huggins: They will be organized through the RCMP as they are coordinating most of the training related to the drug-impaired driving. They already have communication with trainers across the country, so it would be to bring those trainers together and train them on the devices, to train others.
[Translation]
Senator Dupuis: Perfect, thank you.
Ms. Morency or Mr. Yost, if I understand correctly, the situation certain witnesses, including police forces, spoke to us about does correspond to the legal reality, which is that at this time, there are police officers on duty who stop people under the Criminal Code because they suspect that they are impaired drivers.
Those provisions will continue to apply as they do now until the moment when the new provisions in Bill C-46 come into effect. So there is no black hole between the two. There is a current legislative criminal system that applies and will continue to apply, and which will then be completed by a new system when Bill C-46 comes into force. Is that what we are talking about?
Mr. Yost: That is correct. There are a few changes and improvements to the existing program that will come into effect when royal assent is given. Ms. Morency spoke to the fact that there will be new offences and that officers may collect a blood sample without the supervision of a doctor, which will make the system more efficient. All of the changes in Part 1 will also be in Part 2 and will come into effect 180 days later. So there is no black hole.
Senator Carignan: My question is addressed to Mr. Bhupsingh. I heard the answer you gave where you said that you don’t control the time involved, and we understand that. What we do know is that we don’t know when the equipment will be available and we know that it will take several months.
There are other means of detection that exist and other systems in place. The problem is that we heard other witnesses say that there are only 600 drug recognition experts, including one in the Yukon and one in the Northwest Territories, and that we need to double or even triple the number of drug recognition experts if we are to have effective monitoring.
We heard the RCMP scientific laboratory representative tell us that they had evaluated the possibility of calling on the private sector for help given the increase in the number of analyses. She told us that she had not found anything that was up to their standards. And so she is having to expand her laboratory as it was already at maximum capacity. If everything goes well the expansion will begin in July 2019.
When we look at all of these aspects, including the drug recognition experts, the equipment, the training, the devices and the analytical capacity, we feel somewhat uncomfortable to be passing a bill on the legalization of cannabis when there are no tools in place and when the capacity to meet the demand is inadequate.
If you were a senator and were under pressure and had a decision to make, would you be comfortable doing that?
[English]
Mr. Bhupsingh: It’s not for me to decide whether it will come into force but we are trying to develop many different levers to give to law enforcement and it’s hard to predict what the demand will be. The lab capacity, the blood testing. I would say that when we started last year, across the country, with respect to the drug recognition experts we were at about 500.
We’re currently at 778, I think, in the last 10 months in terms of where we are at, and the strategy going forward is to increase that number considerably.
You’re correct. There is better coverage for DREs in some areas. With respect to training in provinces and territories we have asked each jurisdiction to provide us with some type of strategic plan in terms of how these issues will get covered. For example, for SFSTs and DREs we have asked jurisdictions to come up with a plan to deal with rural, remote and Indigenous communities, because there are issues there for coverage.
Going forward, we’re expecting provinces and territories to address these issues. I would also mention that the proposal itself, and the training and the funding that have been set aside, is over a five-year period. It’s a phased approach to how we operationalize this. As I said about the device itself, I don’t know what the current status is in terms of the devices. I’m hopeful that it won’t be six or eight months before a device is identified.
[Translation]
Senator Carignan: My next question is addressed to Ms. Morency or Mr. Yost and concerns the power to arrest, and mandatory detection tests. You seem to be presenting this as though it were something new. The minister told us that it wasn’t new and that this power already exists. And in the various statements that were presented, we were told, “This will be done during a legal roadside test that will comply with the law.” We are talking about any driver who is stopped legally. The minister said that this power already existed, but I’m having trouble following. If something already exists, why do we have to add it to the Criminal Code? Could you tell us in what practical situations this random test — which you referred to as mandatory — could be administered, as you understand it?
Mr. Yost: The power to stop vehicles randomly to verify whether the driver has a driver’s license and whether the vehicle is registered exists throughout the country. A part of this power is to verify whether the person respects legislation regarding sobriety. The Supreme Court of Canada supported that approach when roadside alcohol detection devices were challenged in court, and agreed that this is a reasonable and effective measure to reduce the number of deaths on the road. The power exists.
The change in the legislation is that today, the police officer who must decide if the driver is sober or not has to depend on physical observation. Can he smell alcohol? Does the person have red eyes? These analyses have been done for years. The big difference is that if Bill C-46 is adopted and comes into effect, police officers will be able to determine sobriety quickly and in a scientific manner with an approved screening device, by asking drivers to provide a breath sample.
Senator Carignan: In the absence of symptoms?
Mr. Yost: Without indications or suspicions, and so on. Some research has shown that up to 50 per cent of people who have a blood alcohol content above the legal limit escape detection when they are stopped by the police. Everywhere it has been used this measure has produced excellent results in reducing the number of impaired drivers, because they now know that they cannot avoid providing a breath sample, and officers will be able to rapidly detect whether they are above the legal limit. That is the big difference.
[English]
Senator McIntyre: There is no question that Bill C-46 is an important bill. The proposed legislation would reform the entire impaired driving regime in the code. That said, I echo the remarks made by my colleagues Senators Boisvenu and Carignan. Time is running short and a lot remains to be done, particularly on the issue of new investigative methods.
I assume you’re working with the provinces and territories in terms of trying to develop a technical guide for police and Crown to assist with an effective implementation of this bill.
Ms. Morency, could you walk us through this process?
Ms. Morency: As I said in my appearance in February, that is very much part of the process we’re already engaged in with our provincial-territorial counterparts on supporting the development of materials that will help the provinces and the territories with the effective and timely implementation of Bill C-46.
As you say, senator, Bill C-46 proposes a significant overhaul of the entire regime, and so right now what is available is also serving as a basis to help provinces and territories to begin some of their own immediate preparations. The Minister of Justice has tabled a Charter statement. We have prepared — and it is publicly available — a legislative background on Bill C-46 as it was introduced, and work is ongoing through our existing FPT forum in the criminal justice realm to develop other supporting materials, including technical materials.
There would be additional training efforts under way, as my colleague has mentioned, on the law enforcement side.
Ms. Huggins: As part of the training that’s being incorporated into the standardized field sobriety testing, it includes elements on the bill and the new offences, and how to use them.
[Translation]
Senator Pratte: First, I must say that I find it hard to understand how we can at one and the same time say that we are worried about delays — and I share that concern — and consider delaying the adoption and implementation of the bill, when one of its main elements is the approval by the minister of the screening devices, which depends on the bill coming into effect. If the bill does not come into effect, ministerial approval cannot take place.
Senator Carignan: Did we talk about this? Is someone considering delaying it?
Senator Pratte: In the questions, at least, but perhaps that is my imagination. Let’s say it’s my imagination.
Senator Boisvenu: I never said that Bill C-46 was going to delay the adoption of Bill C-45.
Senator Pratte: In the questions.
The Chair: Honourables senators, at 11:30 a.m., we will have an opportunity to hold an in camera discussion to prepare the report, and you may raise these issues at that time.
Please continue, Senator Pratte.
[English]
Senator Pratte: Mr. Bhupsingh, I want to clarify a couple of things as far as the calendar is concerned. You mentioned that at the NRC, the screeners will be tested. Can you clarify if the screeners are presently being tested or if the tests have not started yet?
Mr. Bhupsingh: I’m not aware, senator.
Senator Pratte: You don’t know whether or not they’re being tested?
Mr. Bhupsingh: No.
Senator Pratte: Okay. I want to clarify the process that even if the screeners were to be approved, let’s say, a month from now, the way things work, according to the law, nothing can move forward until the minister approves of the screeners? Again, if the screeners were to be approved by the DDC, could some work be done before ministerial approval?
Mr. Bhupsingh: Yes, some work is being done. As I already mentioned, we have a senior officials meeting with provinces and territories to talk about the potential procurement of to devices, to make it as expeditious as we possibly can, and to talk about bulk purchasing, talking to manufacturers about warranties. There are a number of variables that are unpredictable. Number one, will there be one device? Will there be several devices? If there are several devices, will law enforcement use one device or several? Those are all being worked through in terms of potential options.
The way the money is being flowed for the devices, it’s going through a contribution agreement from the federal government through Public Safety to provincial governments. The provincial governments will look at procuring those devices. If the federal government can be helpful with that, we’re looking at options to do that.
Senator Pratte: Once the Attorney General has approved the drug screeners, is there a way we cannot do the 30-day public consultation period?
Mr. Bhupsingh: I’ll turn to my Justice colleagues to answer that.
Ms. Morency: We have been in discussion with our colleagues at Treasury Board. Again, we’re all trying to identify possible paths, depending on the timing. We absolutely remain committed to exploring opportunities to move forward. If there is a way to move forward more quickly and we’re able to secure those agreements to do that, we’re absolutely committed to doing our best to support that.
Senator Pratte: Thank you.
Senator Batters: Yet again, on these marijuana companion bills, as the Minister of Justice has called them, Public Safety officials come to this committee and provide us with answers that I find exasperating.
At the same time, in mid-May, you can’t even give us a date that these drug testing devices will be ready. Now I hear you don’t even know if they’re being tested right now. The federal government’s appointed spokesman on these bills, MP Bill Blair and the justice minister’s office, in a news story today is scolding the Senate for not passing these bills more quickly.
This is unbelievable. At the same time, maybe it’s frustrating for you too to work for a government that is tasking you to push these bills to be passed as soon as possible, but the bills are clearly not ready.
At the end of your statement you mentioned this three-year agreement that you now have, so I won’t ask you questions about that.
You say Public Safety Canada has entered into a three-year agreement with the Centre for Addiction and Mental Health. Frankly, that explains some things.
How much money is that three-year contract? When did you start negotiating that contract? We recently had CAMH in front of this committee. When did you finalize that contract? What sort of deliverables exist for that contract? Was it put up for a bidding process or was it sole-sourced to CAMH?
Ms. Huggins: It’s actually a contribution agreement that we have with CAMH. The amount is approximately $900,000 over three years, and it is for a dose-ranging study. So the work that CAMH has done is already in existence on the correlation between impaired driving and cannabis. Public safety has focused in on looking at doses related to THC levels and driving ability and the correlation with the THC nanogram level in the blood.
The study will look at three levels: a low THC level, a medium and a high. It will also incorporate saliva so that we have better evidence on the correlation between saliva samples and blood level — well, the sample from blood levels of THC. We are also looking at including a piece on breath. We know that new technology is coming forward, so we want to see if there’s a correlation with breath as well.
Senator Batters: Is $900,000 the total over three years or is that per year?
Ms. Huggins: It’s the total over three years.
Senator Batters: Okay. You didn’t answer my questions about when did you start negotiating that contract? When did you finalize that contract? Was it put up for a bidding process or was it sole-sourced to CAMH?
Ms. Huggins: Contribution agreements aren’t bidded on. The research was already under way in a different format, so there was no bidding process for the contribution agreement. It started in 2017.
Senator Batters: What month?
Ms. Huggins: December, and the agreement was signed in early January.
Senator Batters: Okay. Why weren’t these types of things, which seem to be very applicable and important to be able to institute the types of significant changes you’re trying to make with this bill, why weren’t the contribution agreement and the studies done much before this was entered into? Your government has known for two and a half years that they were going to try to legalize marijuana. Why weren’t these types of things entered into much sooner than this?
Ms. Huggins: The research of Bruna Brands in CAMH, she has been doing studies on impaired driving and THC levels. This is just a different format of that study. There is some evidence already of the existence of a correlation between impaired driving and THC levels.
Senator Batters: By that time, the bill was already in the Senate. Why not have Public Safety Canada enter into that sort of agreement at the time the bill was introduced or maybe even prior to the bill getting introduced?
Mr. Bhupsingh: I guess ultimately it came down to there was existing research that we were able to evaluate. There were key questions that we think on an ongoing basis will get resolved, and we wanted to be supportive of that research. So at the time we were doing this last year, we were in contact with Bruna Brands, who is a leading expert in this area. We wanted to assist her in the new pieces of research that are getting done.
That’s virtually how the timing worked on this. If we could roll back time two and a half years ago, we would have invested in this particular research. I think the proposal was still being developed, so it was hard to predict exactly what sort of research we would pursue.
Senator Jaffer: I want to thank you all for being here. You’ve been available at all times to different committees, and I want you to know we very much appreciate your presence.
I have a different question, and it is on criminality. I don’t want anyone to think that I don’t take impaired driving seriously, because I certainly do. But the challenge is criminality and IRPA, the Immigration and Refugee Act. Even if let’s say you have been convicted of exchanging joints, the fact is it triggers the Immigration and Refugee Act and the inadmissibility of landed immigrants.
My question is to share with you the concern that this will disproportionally impact landed immigrants. Have you looked at this? May I have your opinion on it?
Mr. Yost: The underlying approach to penalties in this bill is to treat impaired driving as the serious offence that it is, the one that kills and injures more Canadians than any other criminal offence. It is reflected in several ways, not the least of which is raising the penalty for impaired driving causing bodily harm to 14 years and the increase in penalty to 10 years on indictment for routine no bodily harm and no death injuries.
Behind that is the requirement that the person must be facing 10 years on an offence for which he’s convicted before we can bring in a dangerous offender or a long-term offender application. We are currently in the situation where a person who has half a dozen or a dozen offences, we have to wait for them to kill or injure someone before we can try to get them permanently off the road as possibly a dangerous offender.
That is the policy behind it. The immigration consequences have been raised before this committee. That is an issue which I may say is under the jurisdiction of the Minister of Immigration, I understand, but I am not an expert on that. There are mitigating procedures they can use and they are considering how they will approach this in the future.
Senator Jaffer: I understand, but you and your government are all we have. You certainly have studied this, and the minister has certainly heard the concerns.
The problem is the triggering. The way you’ve set it up, how can I fight that? Of course I can’t. But that’s the problem when you’re trying to deal with a whole range of issues. The way you set it out, I would be embarrassed even to try to challenge or argue with you about the circumstances, but it’s the range and that’s the concern. Since you are all I have — we’re not going to get the Minister of Immigration — I’m wondering if there was any thought given as to how we’re going to deal with this.
Ms. Morency: I’m not sure we can add much more beyond that we have been in discussion with our colleagues at Citizenship and Immigration. We are aware that they continue to look at the implications, as my colleague Mr. Yost has said, and that there are some tools available to them to deal with any implications on an immediate basis.
The rationale, the objective that Bill C-46 seeks to achieve, as my colleague has described, is clear. In terms of IRPA, the Immigration and Refugee Protection Act, it is developed — again, we’re not experts and we don’t purport to speak on their behalf, but certainly our understanding is some of the rules that that legal framework establishes to determine admissibility do borrow, to some extent, what the Criminal Code treatment is of some conduct.
So to the extent that Bill C-46, the Minister of Justice and the government have been very clear to say, and as my colleague said, impaired driving is very serious conduct, and we expect and hope Canadians will be taking those signals from Bill C-46 that the courts will as well, including with the increased penalties.
To the extent it relates to the broader implications, we will continue to work with our colleagues at Citizenship and Immigration, but it’s hard to have one message that impaired driving is serious only for Criminal Code purposes, and the question then becomes well, is it less serious in the immigration context? I think that’s one of the concerns it tries to address.
Senator Jaffer: Can you share with us what tools you’re looking at?
Ms. Morency: Again, it’s not for us. We have just been in discussions with our colleagues to determine if there are opportunities for immigration officials to address some of these concerns on an immediate basis. Obviously they will have a range of policies and ministerial directions, whatever. I can’t speak for them, but obviously up to the point of legislative reform.
I think the point we wanted to really underscore was the objective of Bill C-46 and why it’s there and the importance of being able to bring a dangerous offender application in an area where we know there are recurring, repeat offenders quite a bit. You heard that evidence from our colleague from the Canadian Centre for Justice Statistics who talked about that quite a bit in his remarks. It is a very important thing, and we are trying to, through the Criminal Code amendments, have a very consistent framework to deal with it, including through the penalties.
Senator Boniface: Thank you all for being here once again. I wanted to step back a bit to the training pieces and particularly training on the SFST. You indicate that there is a new program. I’m trying to help to understand the clarity with which it’s done. As the federal government, you have an overarching perspective. You’re dealing with the provinces. The provinces then deal with the police agencies. The police agencies will make decisions on their priority of training, what order it’s done in and suchlike, based on whatever their operational needs are; is that correct?
Mr. Bhupsingh: Yes, that is correct. That being said, we are working with, I think, the people we need to be working with, which are the provincial and territorial governments, law enforcement agencies, including the CACP, that have views about how this training should be done. Yes, there is priority setting around that, but, from law enforcement that I talk to across the country, this is a priority. I don’t know if Ms. Huggins wants to add anything about the specifics of the training.
Ms. Huggins: No, not to that, unless there is another question.
Senator Boniface: The point I’m trying to get to is that those discussions are underway. As with all new legislation, the police will train, and, when they’re ready to go, they’ll be ready to go.
On the work that Public Safety Canada has done — in a followup to Senator Pratte’s question — am I correct that you’ve done as much as you can do, to this point, to get the oral screeners to where they are at the National Research Council? On the steps it will take after them, you’ll be working to get those steps done. I want to hear you saying, “We’re doing everything we can do.”
The Chair: Not to be found guilty. That’s what you meant.
Mr. Bhupsingh: I think that’s almost impossible, but, that being said, in all seriousness, chair, yes, that is correct. On those points where we can influence efficiencies, where we can do things in parallel, so that we’re ready, when and if a device is identified and approved, we will be ready to operationalize it and get it into the hands of law enforcement. As much training in terms of how we will do the training has been set up.
In terms of looking at procurement options, that has been set up. Our colleagues at Justice have looked at ways to expedite the listing and the gazetting process. Everything, I can assure you, that we can possibly do to expedite and create efficiencies in the process, legally, we’re trying to do and have done.
Senator Gold: Welcome back once again. My understanding, from research, is that the criminal law is not always an effective instrument to deter behaviour. It doesn’t work well in many areas with regard to youth. But there is one area in which it really seems to work, and that has to do with driving. The research is pretty clear that way. Driving with drugs in your system is a very serious and current problem, independent of the legalization of cannabis. My understanding is also that, once Bill C-45 is passed, there still will be an 8- to 12-week period before it actually comes into force because, I guess, the regimes have to be stocked and so forth.
My question is this: Could you comment on the government’s assumptions? This is actually to any and all of you. Could you comment on the government’s assumptions regarding the possible deterrent effect of these changes in Bill C-46 by the combination of the creation of new per se offences, publicity and public education around the existence of these new per se offences and the public education that is already underway and shall continue about the impact of drugs on driving? I would be interested in your views.
Mr. Yost: The deterrent effect, we believe, in terms of the legislation, will be if people understand that we now have a better way to detect that you’ve been using three drugs that are the most commonly found drugs impairing drivers, which are, of course, the THC, cocaine and meth that we are awaiting the drug screeners for.
In terms of developing the messages and all that, that’s in the hands of communications professionals. They have a budget. I’m not part of that at all.
There are other things in the legislation besides this that may have an effect. Mandatory alcohol screening, when it comes in, if it comes in, is likely to be a major deterrent because people often combine smoking a joint and having something to drink, and that’s a very dangerous thing to do. So that’s there. What we do not control is the level of enforcement, how visible that will be on the roads, et cetera. That’s part, as I understand it, of the contribution agreements that are being worked out with the provinces.
Ms. Morency: If you look at the history, in Canada and around the world, of how we’ve dealt with alcohol-impaired driving, the success and the research results that you heard recently from the Canadian Centre for Justice Statistics showed that the rate for alcohol-impaired driving has been decreasing, whereas drug-impaired driving has been increasing.
If you look at the successes and try to understand maybe what has contributed to the decrease in alcohol, it is probably very much a combination of a very rigorous criminal-law framework to deal with it, with many reforms over the years and an incredibly proactive public legal education. The two have probably gone hand-in-hand, and I know that there is research around the world to show the impacts that that can have.
That serves as a very good signal, going forward, on drug impaired. The more we do to educate Canadians of all ages, motorists, everyone, about the risks and the challenges and the different ways of dealing with it — you want to consume cannabis? Go ahead. Take a taxi home. Public education will be incredibly important, along with the new legal framework on drug impaired, and we are hopeful of that outcome because of the results we’ve seen on alcohol impaired over the years.
Senator Pate: I wanted to clarify with a supplementary question to that. All of the evidence, including the research that’s been available on the Justice website and the government website, actually reveals that it is primarily, as Ms. Morency has said, education and the certainty of being caught, not the penalty per se, that have been seen to create the greatest deterrent, if you will, effect. If people know that there are devices that can detect and if they drive and are likely to be at stops, they’re less likely to do it. So I wanted to clarify my understanding of what’s on the website. If you have different information than that, I think it would be important to let us know.
Second, what impact are you seeing that this is likely to have in terms of policing practices with particular groups that are already often targeted, in terms of Indigenous and other racialized groups, particularly African-Canadians?
Ms. Morency: In terms of general impact, criminal law generally, it’s the certainty of being caught and the swiftness of a response of being caught that generally has the biggest impact in criminal law. I would agree that, in the context of the criminal law reforms that have been undertaken over the years — and we’ve provided some background on this — it’s not just the penalties but also the measures that have been adopted by Parliament, the drug recognition evaluation process in 2008. Bill C-46 is proposing to go further with mandatory alcohol screening. So it’s a combination of things.
As my colleague has said, if we understand now that, in road stops, maybe up to 50 per cent of people get through because police at the roadside don’t have reasonable suspicion to go further and ask but that now they would be able to if C-46 is enacted, it’s all of those things combined.
In regard to the penalty regime, some options that exist under the Criminal Code now and that Bill C-46 would continue, in terms of losing access to your vehicle, the interlock and all of those other things, have immediate impacts as well. People don’t want to lose access to a vehicle. In total, the penalty scheme in the code and as Bill C-46 proposes has a broader impact.
Mr. Yost: One thing that has not been discussed is the measures taken by the provinces as they respond to the fact that we are creating new tools for the police. It’s hard to keep track of all the announcements made by the provinces with respect to their legislation, but several of them have adopted essentially zero tolerance; that is, we will impose an immediate licence suspension upon you if we detect THC or the other two drugs in your oral fluid.
Criminal law cannot move as fast as the administrative functions of the provinces in terms of that sort of triad, namely, the certainty of being caught, the severity of the penalty and how fast it is imposed. The provinces will impose the initial penalties for people who are found to have these drugs in their system at the side of the road.
The penalties under the Criminal Code for a first-time offender, $1,000 fine and a prohibition of one year with a possibility of going on an ignition lock, is a very solid shot across the bow and then we have them escalating. After the first time, if I do this again I’m going to jail. That has a deterrent effect on most offenders. Some, however, as we know, are constantly doing it.
The Chair: On a second round I have Senator Carignan.
[Translation]
Senator Carignan: Ms. Morency, you say that both are needed, for prevention and for the legislative tools. The fear of getting caught is an important aspect of prevention. As for publicity on prevention, we heard representatives from CAA and Éduc’alcool. According to them, the resources are very small as compared to the investments that are needed to change drivers’ habits.
Do you have some idea of the additional amounts that were announced and which could offset this lack of public funds for prevention, publicity and anti-drug messaging at this time?
[English]
Mr. Bhupsingh: Chair, if I could speak a bit to that. In terms of some of the communications that are going on, we’ll continue with our campaign around “Don’t Drive High.” I agree with you, senator, around the need for having prevention as well as the legislative tools. Based on the discussion here, I think that’s a key element going forward in terms of getting the results that we want.
In terms of the public awareness going forward, there has been substantial investment in terms of having a national campaign being rolled out.
I can tell you about the public safety pieces in terms of what we’ve tried to do in the targets. We are concerned about youth, as you’re aware, so we’ve had active social media campaigns that will continue as we build on that. We have been partnering with a number of different organizations that are important to this discussion, including MADD, CACP, Young Drivers of Canada, the Canadian Automobile Society, just to look at ways that we can partner with them and align our messaging. We think that will have a better and stronger impact going forward.
[Translation]
Senator Boisvenu: Ms. Morency, earlier I made a brief comment. Does the content of Bill C-46 derive in part from the content of Bills C-73 and C-226?
Mr. Yost: A large part of Bill C-46 can be found in Bill C-73.
Senator Boisvenu: No, it’s the reverse.
Mr. Yost: Yes, there are indeed some links. Bill C-73 only concerned alcohol-impaired driving. Bill C-226, the content of which was almost identical to Bill C-73, adds random alcohol testing. Some changes have been made to the wording here and there, particularly as concerns mandatory minimum sentences. All of this can be found in Bill C-46.
There is an advantage to the fact that Bill C-73 died on the Order Paper. The provinces had more time to study it and propose recommendations to improve it. Some technical adjustments were made, but Bill C-46 adds some elements regarding offences that involve blood drug concentrations and screening tests. That is new.
Senator Boisvenu: Mr. Bhupsingh, you said that 778 officers had been trained, correct?
[English]
Mr. Bhupsingh: For point of clarity, I think I inadvertently misspoke on that. I apologize because I couldn’t read my own writing. The number is actually 718 that are currently trained in the country. Those are the latest statistics we have from the Royal Canadian Mounted Police who manage the drug recognition experts.
[Translation]
Senator Boisvenu: Why is it so difficult to obtain this data broken down by police station? You give us figures broken down by province. Are they concentrated, for instance, in Regina, or are they distributed throughout the province? I’m trying to understand why it is so difficult to obtain more specific data regarding the number of police stations that have a drug recognition officer. Is there a reason?
[English]
Mr. Bhupsingh: I’m not aware of the difficulty, senator. I could go back and see if we can get some disaggregation. I think the last time we appeared — and I can’t recall before which Senate committee — the RCMP gave statistics that you’re probably referring to by the province. I can go back, chair, and see if we can get a disaggregation of that for the senator and see if we can get that to you.
[Translation]
Senator Boisvenu: I’d like to say to Senator Pratte that earlier, when I was talking about delaying the adoption of a bill, I was referring to Bill C-45, which is about the legalization of marijuana, and not about Bill C-46.
[English]
The Chair: Thank you.
I would like to ask you a question, Mr. Bhupsingh. From the moment the instrument is approved and certified by the Minister of Justice and the time that the manufacturing group receives the order — maybe it will be one or two manufacturing but we don’t know yet; you said there may be more than one — what is the time involved to make sure this is approved? Then we have the hundreds or thousands of pieces of equipment that are needed. What is the time to manufacture the instruments? Do you have any idea? That is part of the consideration of the time frame that we want to take into account to make sure that, as one would say, the ball is rolling on the road.
Mr. Bhupsingh: I haven’t had any discussions, chair, with the manufacturers about that. It would be hard for me to predict their manufacturing process in terms of time from order to delivery of the devices.
The Chair: Thank you. That answers my question.
I was thinking about the critical path of the various steps that need to be complete before officers are on the road. They have the instruments, they have been trained, and they have the lab capacity to take into account over the next months. What is really the reasonable perspective of time is what I was trying to figure out. Thank you for your answer.
Thank you, Ms. Morency, Mr. Yost, Ms. Huggins and Mr. Bhupsingh for your contributions.
We will move on to the next section of the meeting, which is the drafting of our report.
[Translation]
Honourables senators, the second part of our work this morning should normally be done in camera. Could one of you move a motion, so that we may continue our work in camera?
[English]
Senator Batters: I have a question. When we do clause by clause next week, will that be in public?
The Chair: Yes, of course. Once we have finished the deliberations in camera on the substance of the report, when we move to the adoption of the bill it will be in public.
Senator Batters: There was a memo that came out from the clerk that was a little unclear, so I wanted to make sure.
The Chair: It’s clear in my mind.
Thank you, senators. We will go in camera.
(The committee continued in camera.)