Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 11 - Evidence for February 25, 2008 - Afternoon meeting
OTTAWA, Monday, February 25, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, An Act to
amend the Criminal Code and to make consequential amendments to other acts, met this day at 2:08 p.m. to give
consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
The Chair: Honourable senators, we resume our study of Bill C-2.
We have the pleasure of welcoming this afternoon, as witnesses, from the Toronto Police Service, Detective Sergeant
Kim Scanlan, Sex Crimes Unit, Child Exploitation/Special Victims; from the Canadian Association of Chiefs of Police,
Chief Ian Mackenzie of the Abbotsford Police Department; and from the RCMP, Staff Sergeant Mike Frizell,
National Child Exploitation Coordination Centre.
Thank you all very much for being with us. We are looking forward to hearing what you have to tell us.
Chief Ian Mackenzie, Abbotsford Police Department, Canadian Association of Chiefs of Police: Good afternoon,
honourable senators. I appreciate the opportunity to represent the Canadian Association of Chiefs of Police at your
hearing today. As has been mentioned, I am the police chief in Abbotsford, British Columbia, and I am a member of
the Canadian Association of Chiefs of Police — CACP — Law Amendments Committee.
It is my distinct honour today to represent CACP President Steven Chabot, Deputy Director of the Sûreté du
Québec, at this hearing today.
Since its inception in 1905, the CACP has advocated on behalf of Canada's many police organizations on issues of
significant importance to policing and the Canadian public. Among its many objectives, the CACP advocates for
legislative reform, policy improvements and innovative solutions to crime and public order problems. It is in the
capacity of advocating for legislative change and public policy reform that the CACP appears regularly before Senate
and House committees on a number of important public safety issues.
The Co-chairs of the Law Amendments Committee, Deputy Chief Clayton Pecknold of the Central Saanich Police
Service and Assistant Director Pierre-Paul Pichette of the Montreal Urban Community Police Service, appeared before
the House of Commons Standing Committee on Justice and Human Rights last November to discuss Bill C-2. My
comments today will reflect the position presented by those two gentlemen before the House committee as the CACP's
position in regard to Bill C-2 has not changed since then.
I would like to reiterate a general comment made by CACP representatives when they speak to Senate and House
committees. It is simply this: In our view, the criminal law has become far too complex and technical. The result of this
evolution has been a marked increase in the amount of time required for the police to investigate crime as well as a
dramatic increase in the length of trials. In our view, one outcome of the increasing complexity of the law has been a
decline in the public's confidence in all segments of the criminal justice system. This is very troubling to the police and,
I respectfully suggest, should be equally troubling to the legislative branch of government. If the public loses faith in
our criminal justice system then the rule of law is potentially, if not actually, undermined.
The CACP has argued for many years that the criminal law needs to be simplified and that the police need to be
given the necessary tools, within the reasonable parameters of the Charter of Rights and Freedoms, to do our job.
While Bill C-2 addresses some of these concerns, it is only part of the solution, in our view.
The CACP urges Parliament to address many of the other ongoing and significant systemic deficiencies within the
criminal justice system, such as the urgent need to modernize lawful access rules, comprehensive sentencing and bail
reform, and introducing mechanisms to streamline mega-trials and disclosure.
However, the topic today is Bill C-2, and if I can take a few minutes I would like to present the CACP's position in
regard to the bill. I will then attempt to answer any questions you may have.
Bill C-2's short title, as you know, is the ``Tackling of Violent Crime Act.'' The bill's preamble states something that
every Canadian would probably assume is obvious:
. . . Canadians are entitled to live in a safe society;
However, the preamble goes on to note something else that Canadians have now regrettably come to realize is also
obvious. Firearms, dangerous and high-risk offenders, persons driving under the influence of alcohol or drugs, and
sexual predators are threatening the safety of Canadians. The preamble concludes by saying that the bill is meant to
combat violent crime, protect Canadians, keep violent criminals in prison and provide law enforcement with effective
tools to detect crime and protect young persons from sexual predators.
The CACP believes that the preamble to Bill C-2 accurately reflects the current situation in Canada and that its goal
of providing the police with more effective tools to protect Canadians is reasonable and simply makes good sense.
With the committee's indulgence, I would like to make a few comments on four of the major aspects of Bill C-2.
There are, as you know, many specific amendments to the Criminal Code proposed in the bill. My comments will be
fairly global in nature and will not deal with the specifics of the proposed amendments, as I will leave that discussion to
the subject-matter experts and the legislative drafters.
Speaking first on the issue of firearms, the CACP supports the provisions of Bill C-2 that are directed toward the
criminal use of firearms and similar weapons. We believe that the proliferation of guns on the streets of Canada is
alarming and that it is clearly obvious that the current state of the law is inadequate. As committee members will
undoubtedly know, Statistics Canada issued a report I believe last week that highlighted the significant increase in the
number of firearms-related crimes committed in Canada over the past several years. Not surprisingly, the use of guns
for illegal purposes is most prevalent in Canada's large urban centres. However, the Statistics Canada report and
simple observation illustrate that the problem is not restricted to those areas. For example, Abbotsford, where I live
and work, is a city of approximately 130,000 people situated on the eastern border of Metro Vancouver. Abbotsford is
made up of a combination of urban, industrial, commercial, and agricultural land uses and, like many other
communities across our nation, is blessed with a scenic beauty that projects an image of serenity and peace. Yet, in
2006 there were 126 firearms offences and 40 incidents where shots were fired in Abbotsford. In 2007, two out of the
three murders in Abbotsford involved the use of guns. As noted in that recent Statistics Canada report, this places
Abbotsford as number 2 out of 27 census metropolitan areas on the percentage rating scale for gun-related homicides,
just behind Edmonton.
Metro Vancouver recently saw the shooting murders of several people in public places. The same has occurred in
Toronto and other Canadian communities, as everyone knows. There have been well-publicized tragedies of innocent
people being caught in the crossfire. The Boxing Day murder of a 15-year-old girl on a public street in Toronto in 2005,
and the murders of Ed Schellenberg and Chris Mohan in Surrey, British Columbia, on October 19, 2007, are such cases
but are by no means the only ones.
This brazen criminal activity, most of which involves criminal organizations, strikes at the very fabric of our
national culture of peace, order and good government. The Vancouver Police Department and police agencies in the
Vancouver region, including Abbotsford, as well as police in many other parts of the country, have instituted gun
interdiction and gang suppression units that have achieved some level of success in taking guns off the streets.
However, in our view, far too often persons arrested in possession of guns do not receive a jail sentence.
While Bill C-2 will not be the entire answer, the CACP supports mandatory minimum sentences and a reverse onus
in bail hearings for firearms offences, especially when the crime is associated with criminal organizations, because we
believe the judiciary's current sentencing and bail practices are not adequately protecting the public.
The CACP supports the provisions of Bill C-2 in regard to impaired driving. The current state of the law is clearly
inadequate for dealing with persons who are impaired by means of a drug other than alcohol. Allowing roadside
sobriety and drug screening tests and requiring suspected impaired drivers to provide urine or blood samples will in our
view provide the police with more tools to protect the public from the danger caused by impaired drivers.
The CACP also endorses the other provisions in Bill C-2 that are aimed at limiting technical defences. However, we
believe that more still needs to be done in regard to this ongoing problem of impaired driving and the unsafe operation
of vehicles on our nation's highways.
For one thing, impaired driving is one of those areas of the law that has become extremely complex, to which I
referred earlier. The law needs to be simplified to be effective. The CACP has recently submitted a paper to the House
of Commons Standing Senate Committee on Justice and Human Rights with several recommendations regarding
possible improvements to the impaired driving provisions of the Criminal Code, and we look forward to discussing
those recommendations at the appropriate time.
The CACP supports the provisions of Bill C-2 that amend the dangerous and long-term offender provisions of the
Criminal Code. While the amendments are quite procedural in nature, therefore beyond our scope of expertise, we are
very supportive of Parliament responding to the Supreme Court of Canada's decision in the Johnson case.
More specifically, the CACP fully supports a change to the test applied by a judge when he or she must choose
between detaining the offender in custody under the dangerous offender provisions and ordering a long-term
supervision order, whereby the offender serves his sentence in the community.
The CACP believes public safety will be enhanced by changing the test from the current one, where the offender
must be released on a long-term supervision order if the court believes he can be reasonably controlled in the
community, to the new test, where an indeterminate detention is ordered unless the court is satisfied that the long-term
supervision order will adequately protect the public against the commission of another serious personal injury offence
by that offender.
Further tightening of the rules regarding long-term supervision orders as proposed in Bill C-2 will also, in our view,
serve to better protect the public from these dangerous people who have demonstrated through their past behaviour
the capacity to kill and seriously harm others.
The CACP supports the provision of Bill C-2 that raises the age of consent from 14 to 16 years. In our view, the
bill's scheme adequately protects young people who are close in age and who may become involved in sexual activity,
while providing greater protection to vulnerable and easily influenced young people who are commonly the targets of
In conclusion, Bill C-2 is a significant piece of legislation, with many proposed amendments to the Criminal Code
and consequential amendments to other statutes. Specific drafting issues are best left, of course, to the subject-matter
experts and the legislative drafters, but my comments I hope have stated the CACP's general positions on these
On behalf of the CACP, I would like to thank this committee for the opportunity to present our position on these
important issues of public safety.
Detective Sergeant Kim Scanlan, Sex Crimes Unit, Child Exploitation/Special Victims, Toronto Police Service: Good
afternoon. Thank you for the invitation to appear before your committee on Bill C-2, specifically to talk about the age
of protection legislation. The Toronto Police Service has identified the protection of vulnerable persons, especially
women and children, as one of our most important service priorities. With a population of over 2.4 million people, plus
millions of commuters and visitors to Toronto each year, we respond to hundreds of thousands of calls for service.
I would like to share with you some of the experiences of the Toronto Police Service, especially the areas that I
oversee: the Child Exploitation Section and the Special Victims Section. Both areas are responsible for investigations
related to sex offences against children, including Internet-facilitated crimes and street prostitution.
The primary responsibility for both sections is to identify and rescue children and return them to a safe
environment. Our support for the passing of the proposed age of protection legislation is focused on the increased
identification and prosecution of adults who choose to sexually exploit children. Our support for these changes is not
about criminalizing the sexual activity between young people.
How are 14- and 15-year-olds vulnerable? I would like to address this with you.
There is an increased use and access to the Internet. Young people live in the world of the Internet and social
networking, while most of their parents do not. Parents are not always aware of where their children are going online
or to whom they are talking. They do not want their children talking with strangers, but on the Internet it is virtually
impossible to prevent.
Sexual predators have an in-depth knowledge of computers and technology. They spend enormous amounts of time
in the pursuit of their fantasy of having a sexual relationship with a young person. Sexual predators network with other
like-minded individuals and are well-versed in successful grooming and luring techniques. These abilities lead to
potential sexual abuse and exploitation.
Further evidence of the vulnerability of this age group has been provided to me by some of Canada's most
experienced undercover officers. These officers, who represent several provinces, have spent years online posing as 12-
or 13-year-olds. They report that Canada's low age of consent is openly discussed in peer-to-peer chatrooms by sexual
predators. Canada has been identified as a sex tourism destination. Sexual predators have openly sought opportunities
to meet and have sex with young Canadian teenagers, both boys and girls.
Undercover officers continue to report that almost 100 per cent of the time, when online posing as a 12- or 13-year-
old, conversations that are initiated with them move quickly to discussions about sex. Many times, this has occurred in
less than one minute.
Some predators who believed that they were actually talking to a 12- or 13-year-old boy or girl tried to maintain the
relationship with the undercover officer for several months, waiting for the youth to reach the current age of consent,
14 years of age.
Last year, I presented information to the House of Commons standing committee on the vulnerability and
victimization rates for 14- and 15-year-olds using 2005 and 2006 data on reported sexual assaults and missing persons
records. This is from the Toronto Police Service. For this presentation, I was able to add the statistics for 2007 as well.
The records indicate, when looking at all the victims under the age of 18 years combined, over 70 per cent of the
offenders were adults. Fourteen- and 15-year-olds represent the largest proportion of all reported sexual assaults, and
that is for all ages. The next most significant age group represented was 13-year-olds.
The passing of this legislation would mean that 14- and 15-year-old victims of sexual assault would not regularly
have to be cross-examined on the issue of their consent, but only whether a sexual act had occurred. The removal of
this barrier may encourage more victims to come forward.
Fourteen- and 15-year-olds represent the largest age group for reported missing persons. At any given time, there
are hundreds of vulnerable teenagers aged 14 and 15 who run away to large cities like Toronto. They fall prey to sexual
predators that are eager to take advantage of them. Gang and organized crime members recruit runaway teens and get
them involved in drug trafficking and the sex trade. Some of these youths include Canadian and foreign teenagers who
are tricked or coerced and become victims of human trafficking. Most young prostitutes are well hidden, working out
of bawdy houses that are not easy to locate.
Increasing the age of consent to 16 will provide some protection to younger teens who may find themselves in
vulnerable situations. Efforts to gain their compliance for sex would be more difficult, and those who prey on young
people will have to contend with new legal consequences.
Sexual exploitation is an under-reported crime. Offline and online Internet-facilitated crimes against children in
Canada are highly under-reported. Sexual assaults and sexual abuse of both children and adults reported to the police
is estimated to be only between 10 and 25 per cent.
In luring cases, the majority of the offenders use grooming behaviour either on the Internet or in personal contact
with young people. Boys and girls, especially young teens, are often groomed into consenting to an act, whether it is
posing naked, exposing their breasts or genitalia, or meeting for sex. This is an act that they are too young to assess or
to protect themselves against and, therefore, are too young to consent to, which is why this legislation needs to be
Canada needs to be more proactive when it comes to protecting vulnerable persons, especially women and children.
The police alone cannot protect young people from harm. Sexual exploitation in any form is unacceptable and must be
stopped, using all the resources that we have available.
This committee has the power and the ability to make important changes in legislation that will immediately
improve the safety and decrease the vulnerability of young people.
As a parent of two teenagers, this legislation is particularly important to me to help protect them. As a police officer,
the passing of Bill C-2, specifically the age of protection legislation, is a step in the right direction and one more tool for
law enforcement to help keep our children safe.
Staff Sergeant Mike Frizell, National Child Exploitation Coordination Centre, Royal Canadian Mounted Police:
Madam Chair, honourable senators, thank you very much for this opportunity to address you today. I am in charge of
operations at the National Child Exploitation Coordination Centre here in Ottawa. The centre is part of Canada's
National Strategy for the Protection of Children from Sexual Exploitation on the Internet.
Part of our responsibility as the national centre is to remain current on the changing environment so that our
preventative and enforcement efforts are aligned and effective. We deal with all police forces across Canada on these
issues. In this role, we consult regularly with community members, border officers, social and medical workers, police
investigators and all those responsible for the investigation of Internet-facilitated sexual exploitation.
Based on that consultation, I can report that raising the age of protection for sexual activity has frequently been
identified as a desirable legislative amendment. You have just heard from Detective Sergeant Scanlan about some of
the numbers and how 14- to 15-year-olds represent the largest group of sexual assault victims.
Based on our collective experience, we believe that the current age of protection of 14 is a significant detriment to
our efforts to protect children, especially 14- and 15-year-olds, from sexual exploitation. It is always preferable to
prevent crime rather than investigate it after the damage is done.
We believe that the amendment under consideration today would greatly assist in the prevention, deterrence and,
when necessary, the investigation of adults who seek to sexually exploit Canadian children.
We support that the proposed bill ensures that consensual sexual activity between young people is not criminalized.
This law recognizes that youth will explore sexual development and can legally do so with similarly aged peers. The bill
properly leaves the question of sex between teens as a moral issue and not a legal one.
This bill is specifically designed to protect young teens from being targeted by adults who seek out 14- and 15-year-
olds, as this age group has often matured physically but has yet to mature emotionally and reach a mature age at which
they can make an informed decision. That children are still developing emotionally in their early teen years is
recognized in a number of ways by protective laws that already exist. Children aged 14 are not allowed to view movies
with restricted adult content. They are not allowed to drive, get credit, drink alcohol, serve in the military or sign legal
documents, yet they can presently consent to sexual activity with someone multiple times their age. With the exception
of sexual activity, teens under 16 years of age are prohibited from many other activities that involve avoidable risk.
We know that there are adults who pay very close attention to the age of protection as websites and chat rooms
promoting adult-child sex devote considerable time and web space to age of consent charts and define age of consent as
``the age at which you can touch your special friend without either of you getting into trouble.''
To add to this problem, as Detective Sergeant Scanlan stated, the Internet has created a portal for sex offenders to
make contact with our children in what used to be the safety of their own homes. According to our information, there
are approximately 50,000 predators online at any given time trying to make contact with a child for a sexual purpose. I
believe this estimate to be very low. As an example, during a recent training course on Internet luring, we had 20 police
officers in a room all online with different identities. Of those officers posing as children, 9 received live webcam video
images of masturbation and over a dozen luring attempts were documented within minutes of them signing online.
Many of these officers were approached by adults for sex within seconds of going online.
Luring is rampant because of the anonymity of the Internet. It provides offenders who from anywhere in the world
can solicit numerous children at the same time without leaving home. Age, sex and location are always the first
questions asked allowing offenders to quickly identify viable targets.
Because the age of consent is 14, 13-year-olds are being targeted. As Detective Sergeant Scanlan said, offenders will
groom them until they reach the age of 14.
The Internet is also a fertile ground to meet teens as they are using it more and more for social networking while
unsupervised. As you have heard, many parents are well behind their children when it comes to these new tools.
Despite our efforts at preventative education, recent studies have shown that up to 25 per cent of children will meet
someone they have only met online. They will meet them in person.
Not only is domestic luring on the rise but Canada is also gaining recognition as a sex tourism destination.
Investigators have located websites advertising Canada and chat room conversations recommending Canada as a
destination of choice for those who wish to have sex with 14- and 15-year-old children.
The original age of consent or the age of protection was set in a very different time, before many of these things I
have talked about were even contemplated, let alone a reality. Canada's age of protection is among the lowest in the
western industrialized nations. The United Kingdom, the U.S. and Australia are noted for their aggressive efforts with
respect to Internet-facilitated child sexual exploitation, and they have an age of protection of no less than 16 years old.
While Canada has demonstrated its commitment to fighting these crimes with strong legislation, the age of
protection bill will bring us more in line with these progressive countries. This bill will also provide additional
consistency in the legislation.
In a case in Alberta, an adult male took a 16-year-old girl to a hotel room and took sexually exploitative photos of
her. He was rightly charged with producing child pornography. However, if he had had a 14-year-old in the room with
him and had just had sex with her without photographing the act, he would have been immune from prosecution.
It is our experience in talking to Canadians that many already believe that 14- and 15-year-olds are protected. There
is a mistaken belief that young teens are protected from anyone who is more than five years their senior.
Our experience is that Canadians believe it is illegal for a 50-year-old male to have a sexual relationship with a 14- or
15-year-old teen. In conversations with the public or in our dealings with parents and victims, they are often horrified
to learn this is not the case. This bill more accurately reflects the age of protection that Canadians will accept and, in
fact, already expect.
This amendment will impact on the workload of police agencies, but we also believe that it will have a positive
impact on the prevention side to balance that out. If this amendment is passed, the NCECC and its partners will work
to raise public awareness that the age of protection in Canada has been raised and that Canada is not a sex tourism
Senator Baker: I want to congratulate the witnesses here today for the great work they have done, especially the
National Child Exploitation Coordination Centre. You have done marvellous work, and I also congratulate Mr.
Mackenzie for the high profile he maintains with law enforcement in British Columbia.
I have a couple of matters of clarification, Chief Mackenzie. You said your organization was more concerned with
one modernized lawful access rule. Do you mean that you do not want to have to get a search warrant or go through
the necessary procedures in order to enter a place of business or a residence?
Mr. Mackenzie: Not at all. The lawful access provisions that have been on the table for many years still require
search warrant authorizations, and we fully support that. However, the procedures need to be streamlined. Many of
the technological aspects need to be worked on, and I am not an expert in that area.
With the move to BlackBerrys and all of these sorts of things, it is our view that we need a system in place that is not
as bogged down as the current one. We do not suggest that we should not have judicial authorization. We agree with
Senator Baker: Right now you can get telewarrants, which is normal.
Your second proposal is to streamline mega-trials and disclosure. I presume you are talking about huge conspiracy
and trafficking charges.
Mr. Mackenzie: There are two issues, and thanks for raising them. Mega-trials have been problematic all the way
from the Air India trial, some of these large commercial fraud trials and trials relating to organized crime. They take on
a life of their own. You get into issues under the Stinchcombe rule for disclosing documents. It ties into disclosure. You
get into trial delay. As a result, the police are trying to hive off pieces of these investigations and attack parts of the
criminal activity as opposed to the entire criminal activity. It is a complex area, no doubt, but we think there is a need
to look at some rules in regards to mega-trials.
Disclosure is a huge issue for police across Canada. Disclosure has taken on immense resource implications for the
police. When the police finish any large investigation, they will have to leave one or two investigators or officers on that
file for likely another year or longer just to deal with disclosure issues for defence counsel. This is an issue that
Parliament, through the House and the Senate, will need to address.
Senator Baker: As you point out, that issue goes back to Stinchcombe, which was a 1991 decision of the Supreme
Court of Canada. Surely, if the main requirements are an officer's notes, a continuation report, a Crown attorney's
case report and supporting documents, that is not too onerous.
Mr. Mackenzie: Unfortunately, it has taken on a life of its own and it is more than that. Virtually any tip is seen as
potentially relevant and is ordered by the courts to be disclosed to defence counsel.
We are not suggesting anything that will attack the right of an accused to full answer in defence. We support
disclosure as a principle; we just believe that if the courts are not able to set down specific guidelines, perhaps through
law, there could be some limitations on relevancy at least.
Senator Baker: You say that you endorse other provisions of Bill C-2 aimed at limiting technical defences. The only
thing that we have seen under the impaired driving section with regard to eliminating technical defences are the clauses
that change the words ``immediately'' and ``as soon as possible'' to ``as soon as is practicable.'' I think there are 30
changes there. In another one I presume you are talking about the ``evidence to the contrary'' section. Is that correct?
Mr. Mackenzie: That is correct.
Senator Baker: Why are you in agreement with that?
Mr. Mackenzie: Any officer who works on impaired driving will tell you that it is almost as difficult to give evidence
in those cases as it is in a case of murder, for example.
The issue of process becomes the primary issue to which defence counsel direct their attention in seeking an
acquittal. While there must be guidelines for the police to take samples at the appropriate time within the rules, it
comes down to the reliability of that sample. If the Crown can prove that that sample would have been over 80
milligrams in 100 millilitres of blood, you should still have a conviction, assuming the Crown proves all the other
elements of the crime.
Senator Baker: Certainly the evidence to the contrary would cover someone who got a blood test to negate the
results of the Breathalyzer examination. That would be an example of evidence to the contrary, as well as the two-beer
defence. Police officers use that terminology, although I do not think it is good terminology. However, am I correct
that you are in agreement with erasing that, since this bill erases evidence to the contrary?
Mr. Mackenzie: No. You may wish to hear from an expert in impaired driving, but as I understand it, the evidence
to the contrary will be successful if it shows that the reading would have been less than 80 milligrams.
Senator Baker: It would have been 80 milligrams per 100 millilitres of blood unless you have evidence to the
Mr. Mackenzie: That proves it is not, yes.
Senator Baker: So you could have a blood sample to prove that.
Mr. Mackenzie: Yes.
Senator Baker: Moving on to the other witnesses, I notice that you have recently successfully prosecuted several
huge cases throughout Canada dealing with the possession of child pornography on computers. In order to prove those
offences beyond a reasonable doubt, which you are called upon to do, in addition to having possession of the evidence
you must have substantive evidence to back up the fact that the person who had possession on their hard drive was the
person who downloaded or solicited the evidence; is that correct?
Mr. Frizell: Absolutely.
Senator Baker: Is it correct that if you have child pornography on the hard drive of a computer in your possession,
that is recognized as possession of child pornography?
Mr. Frizell: If you are aware of it, yes.
Senator Baker: You provide to the courts proof of use of credit cards online with some agency, usually in the United
States rather than in Canada, and supportive documents from the banks. I understand that in addition to the credit
card record, you get a search warrant for the bank to prove that the person did not object to the charge against their
credit card. You then seize the computer and experts examine the hard drive of the computer to get the evidence.
Mr. Frizell: There are many ways to get pictures of children being sexually abused free on the Internet other than
through credit card transactions. It can be quite complicated to properly investigate these cases.
Senator Baker: Have you had many prosecutions?
Mr. Frizell: The national centre is a coordination centre and we deal with international investigations. Ms. Scanlan
deals more with prosecutions.
Ms. Scanlan: The Toronto Police Service averages between 40 and 60 arrests every year, and we are pretty successful
in most of them.
Senator Cowan: Chief Mackenzie, I would like you to turn to page 4 of your submission. At the top, you said:
. . . too often persons arrested in possession of guns do not receive a jail sentence. While Bill C-2 will not be the
entire answer, the CACP supports mandatory minimum sentences and a reverse onus in bail hearings for firearms
offences, especially when the crime is associated to a criminal organization —
— and this is the important part —
— because we believe the judiciary's current sentencing and bail practices are not adequately protecting the
Is your concern about the actual provisions in the law or about the way in which the judiciary, and presumably the
prosecutors and defence counsel involved in the process, apply the law?
Mr. Mackenzie: As you are aware, there is some sentencing disparity across the country. I come from British
Columbia where I think it is generally accepted that the sentencing might be even more lenient than elsewhere.
Speaking on behalf of the entire CACP, we have struggled with the issue of mandatory minimums. Reverse onus is
always a problem because it questions the presumption of innocence. As police leaders, we respect those basic Charter
issues, and it is a difficult balancing act.
To be blunt, the judiciary has not done its job, in our respectful view, with regard to sentencing on gun crime and on
the issue of keeping a person in jail pending a trial on a gun crime. Respectfully, if they are not able to do that,
understanding that the role of the judiciary is difficult, it is our view that there are many people on the streets of
Canada with guns who are arrested but not dealt with in a manner that adequately advances specific deterrence,
general deterrence and denunciation. If the courts cannot do it, we look to Parliament to do it. If reverse onus and
mandatory minimum sentences are the mechanism upon which Parliament achieves that goal, we support it.
Senator Cowan: In the next paragraph, dealing with impaired driving, you say:
The law needs to be simplified if it is to be effective.
I grant you that mandatory minimums and reverse onus make this simpler. However, the issue is whether it makes
things better or makes people believe that they are better. That is the balance we are trying to strike.
There are horrific examples that witnesses have told us about, the kinds of cases that you deal with daily, and we all
applaud you for the work you do in that regard. However, what is the right balance among all these principles?
Lawyers have become accustomed to believing that judges are in the best position to assess those factors and to provide
the proper balance. They are the ones who hear the witnesses, observe the witnesses and hear all the evidence. It seems
a stretch to turn that on its head and I wonder if it is the right answer. I grant you it is the simple answer. Simplicity is
not always the right solution, and it may be more of an apparent solution than an actual solution to the problems all of
us want to address.
That is more of a statement than a question, but I would appreciate your comments.
Mr. Mackenzie: I respect your view. There is always that balance between simplifying the law so that the process
does not become the issue and the substantive guilt or innocence through a fair trial becomes the issue. The CACP and
I understand your dilemma.
The judiciary has a job to do. I say with the greatest of respect that what is happening now is not working. We have
had a proliferation of guns on the street. If you talk to the deputy chief in Vancouver, any police officer in any urban
centre — and perhaps Detective Sergeant Scanlan will also tell you — people are walking around with guns because it
is a status symbol. They are being arrested by police, but they and their friends and acquaintances are not being
deterred. The result is that there are a lot more guns.
Abbotsford is an urbanizing community, but it shocks the people who have lived there for many years that we are
pulling guns off the streets on a weekly basis. If you go to the large areas, this problem is an epidemic and something
needs to be done. I do not mean to sound alarmist, but it is a huge issue. The courts, through their current sentencing
and bail practices, seem unable to deter that activity. While it is a blunt instrument, what we have now is not working.
Therefore, we support trying something new.
Senator Cowan: I am not persuaded that the situation in Abbotsford will be changed overnight for the better with
the imposition of mandatory minimum sentences. I do not know Abbotsford. I suggest there may be other reasons for
your situation than the absence of mandatory minimum sentences or the sentencing practices of judges who apply their
trade in the Abbotsford area. Perhaps something makes it different, say, from other communities across the country.
Mr. Mackenzie: Maybe someone from Toronto or somebody else can speak about it. However, I am using that as
The imposition of mandatory minimum sentences will help because the people who would otherwise be walking
around with guns will be in jail. I do not mean to make it too simplistic or to be flippant in my response, but the
individual we arrest will be in jail. It is a complex issue. Neither I nor the CACP is suggesting that the only reason we
have this unfortunate change to our safety in our streets is a lack of minimum sentencing. I would not suggest that.
However, I do think it is a piece of the puzzle in the sense that the system has been very weak in its response. When I
say ``I,'' I am presenting on the behalf of the CACP. I think it would make a difference.
Senator Milne: If I may follow on from Senator Cowan's questions, is the problem that the judiciary is not really
applying the present law? Do you think that they will apply a new law?
Mr. Mackenzie: For example, if you are talking about bail, by building in the aspects about the type of gun offences
and whether the accused is involved with a criminal organization, it is a reverse onus; they can still release, but now the
onus is on the accused. One would suggest that there would be a better chance to keep people in jail for the bail.
In regards to sentence, a mandatory minimum removes the discretion to the extent of the mandatory minimum, as I
understand it. Therefore, I do not know if they have a choice unless it fell on the Charter.
Senator Milne: They would have a choice until they got to the third offence, I believe.
Mr. Mackenzie: However it is phrased, yes.
Senator Milne: I have some concerns about reverse onus. Your answer has led me right into it. It seems to me that
with reverse onus, we are taking the old British common law system that the country has grown up with, where a
person is innocent until proven guilty, and turning it around. We are turning it into the system in France, where an
individual is presumed guilty until they otherwise prove themselves innocent.
Mr. Mackenzie: Reverse onus is simply whether or not an individual will be released on bail prior to a trial to
determine guilt or innocence. Reverse onus has been around, I suppose, since the Bail Reform Act in the early 1970s. It
has withstood Charter challenge. It has been trimmed down because of Charter violations, the Morales case being one.
It is a generally-accepted legal doctrine that in certain circumstances — such as for very serious crimes — it is not
contrary to presumption of innocence to place the responsibility on the accused to show why they should be released
on bail as opposed to having the presumption of bail.
Senator Milne: That is in the bail provisions. However, what about the dangerous offender provisions?
Mr. Mackenzie: As I say in the paper, dangerous offenders are dangerous offenders. By virtue of their past
behaviour, they have shown complete disregard for the safety of people. To place them in jail under the dangerous
offender provisions in the new legislation strikes me as common sense. They still have the provisions in the code to
argue that they are not dangerous offenders.
With due respect to the judiciary, we see the Johnson case as being very unrealistic. It places huge liabilities upon
police and correctional services if they have to supervise a highly dangerous offender under long-term supervision.
There is a case in B.C. where a person is under supervision 24/7 in the community. It costs the public a lot of money
and this individual, in our view, should be classified a dangerous offender under dangerous offender legislation. I do
not see it as contrary to the presumption of innocence, and I believe that Supreme Court of Canada case law from
many years ago said that it was not a violation of section 7 of the Charter.
Senator Milne: We heard from Mr. Doob this morning, and he told us that 5,200 violent offenders were released in
2005 and 2006. Of those, 150 were returned to jail for re-offending in that same year. That is a pretty small percentage.
In fact, of all the people charged, if they were to be kept in jail forever, he figured the violent crime rate would go down
by 0.2 per cent.
Mr. Mackenzie: As I was not here for that presentation, so I cannot respond with a lot of knowledge from that
perspective. Statistics can be interpreted in many ways. That is not dangerous offenders but offenders who were
released across the country who committed violent crimes. It is great if the recidivism rate is that low.
I have a few comments, though you may be aware of them. Those are people who have been convicted of a crime.
There are some people who will commit a crime and unfortunately will not come to the attention of the police.
However, I am focusing on dangerous offenders. I believe the wording of the Johnson case is that if it is ``reasonably
possible'' that a person can be controlled in the community, then the judge can issue a long-term supervision order. We
are saying that this was not the intent of the legislation when it was passed.
Let us flip it around. The test is clear. You are aware of it and I paraphrased it. If there is any likelihood that the
offender will commit another designated offence, they will be designated as a dangerous offender and will stay in jail
indeterminately. We see that as advancing public safety. We must accept that reaching a balance is always difficult.
Senator Milne: Detective Sergeant Scanlan, I am horrified by some of the things you said in your presentation. It is
absolutely astounding to me that 14- and 15-year-olds represent the largest proportion of all reported sexual assaults
for all ages, and the next most significant group is 13-year-olds. Where does this data come from?
Ms. Scanlan: This is reported cases, that is, for any victims of any age group that would have come forward.
Senator Milne: Does this come from Toronto police data?
Ms. Scanlan: Yes.
Senator Milne: I understand that the Prime Minister quoted Toronto police data when he introduced this bill in
Toronto, not in Parliament. He said that 40 per cent of the gun crimes in Toronto were committed by people who were
out on bail, on probation or similarly under some sort of restriction. We have been trying ever since to find out in more
detail where those facts and figures came from. We asked the minister and he said he would provide them to us, but he
has not. Could the Toronto Police Service provide that information?
Ms. Scanlan: I could look into it for you.
Senator Milne: Would you please.
Senator Di Nino: I was going to concentrate my questions on the age of consent, but I would first like to clarify a
point with Chief Mackenzie.
Professor Doob said this morning that 5,200 people were released on statutory release rather than on parole. He did
not give us a number as to how many were violent offenders. He did say, and I challenged him on it, that each year
about 150 of these offenders are returned to penitentiaries for a violent offence. I said that this was a heck of a lot of
violent people across the country shattering the lives of Canadians.
His response to me at the end of our exchange, and I am paraphrasing, was basically that the Senate is wrong if it
thinks Bill C-2 will make any difference at all to crime in this country. It will not affect crime. Do you agree, or would
you like to share your opinion with us?
Mr. Mackenzie: I cannot respond directly to those comments.
The CACP's position is that Bill C-2, as I said in my preliminary comments, is one step that we believe will assist in
creating a safer country. It is certainly not the only step. There is no doubt that we are living in a complex world. As a
police community, we would not support the bill if we did not believe that it advances public safety, which is our major
I want to emphasize to the Senate committee that the police chiefs are well aware of the Charter of Rights and
Freedoms and we respect it, but a balance is required. We are coming at this from a slightly different perspective.
Senator Di Nino: I would like to direct a quick comment and a question or two to Detective Sergeant Scanlan and
Staff Sergeant Frizell. First, let me refer to statistics given to us by the Canadian Centre for Justice Statistics. They
talked about the increase in other sexual offences, that is, other than exploitation and those violent things. They have
been going up for the last five or so years. They conducted a survey of children under 14 years and found that girls aged
12 to 14 are the most vulnerable group in regard to these offences.
I think Detective Sergeant Scanlan probably agreed when she talked about 13-year-olds. I will ask her a question
about that in a moment.
I was disturbed by another of their statistics. The presenter said that only 8 per cent of these cases are actually
reported, which means that 92 per cent of sexual offences against our children go unreported.
Detective Sergeant Scanlan, are you finding that most of these are not reported? Could you give us your opinion?
Ms. Scanlan: In sexual assault cases and other offences against children which would include some of the Internet-
facilitated crimes as well as other sexual offences, we are finding it highly under-reported. The statistic I provided today
was somewhere between 10 per cent and 25 per cent for all age groups. However, that would include adults who have
the choice, the option and the knowledge to make those reports. Children are very vulnerable and sometimes the court
system as it is set up currently is adversarial. It is difficult, and so parents make that decision.
Another thing to note is that many times offenders in these cases are known to the children. It could be someone in
their own home, a coach or a teacher. That position of trust is always there. I think it takes a long time for kids to come
forward. We hear more from adult survivors of abuse than we do from actual children who are abused in this age
Senator Di Nino: It is not covered by this survey. However, you also said that the largest number is girls 14- and 15-
years-old; is that correct? That is a larger number even than children who are sexually assaulted.
Ms. Scanlan: The number I provided was both sexes combined.
Senator Di Nino: What breakdown would there be between girls and boys?
Ms. Scanlan: I do not have the statistics in front of me. However, last I recall, it is about 60 per cent female and 40
per cent male.
Senator Di Nino: Staff Sergeant Frizell, do you have any comments on those questions?
Mr. Frizell: As Detective Sergeant Scanlan has said, under-reporting regarding children is not at all surprising. Even
with the Internet, the majority of offenders are still in positions of trust. Child victims often feel guilt or feelings of
responsibility themselves. They feel that they must have done something or that all the adults like this person.
You often hear offenders described as being great with kids. Of course they are, which deters the child from
reporting in the first place. Of course, our court system is not very kid-friendly. That is often a deterrent as well.
Senator Di Nino: Bill C-2 is proposing that the age of consent be raised to 16 years. I imagine both of you agree that
is a good tool for us to be able to make life a little better for these children.
Mr. Frizell: It is a tool, but it is a big-time preventative measure. These websites will now all have to change and put
up new notice that 14- and 15-year-olds in Canada are not free game for predators around the world to come and visit.
Ms. Scanlan: I would agree. It would immediately increase the safety of young Canadians as well as foreign young
people who are brought here or who end up here for one reason or another and may be coerced or tricked into the sex
Senator Campbell: Chief Mackenzie, I would like to talk about possession of a firearm and commission of an
offence. The Criminal Code currently includes minimum mandatory sentences for possession of a firearm and
commission of an offence. However, we have had testimony here and it would seem to me that the first thing ``dealt'' is
the weapons charge. If I stick up a bank, I am going to get four years for the gun and who knows what for the robbery.
However, the first thing the Crown is going to do is cut a deal with defence and chuck out the gun charge. Guns are
never mentioned during the plea, and I walk out of there with maybe a deuce less.
I would suggest that perhaps there should be no option, although this may raise some ire. If you commit an offence
with a gun, you are charged with a gun offence. It should be deal with first, and then we go to the next one.
I would even add that there should be no option on whether it is concurrent; you go consecutive. You get four for
the gun and then we do the armed robbery charge and we throw that on. We are adding on here. We are saying, ``Let's
us do more time and more time,'' but in reality there is no time.
I have statistics here stating that in 2005-06, 211 cases were completed in court where the most serious offence was a
firearms offence. That is bubkes — nothing. It also says that 1 per cent of the total caseload in adult criminal court is a
In fact, we already have the tools to do this. What we have not done is given a direction to those people prosecuting
these charges that this is not Let's Make a Deal. If a gun is involved, I want them to be done for the gun, and then we
do the next one. Would you agree with that?
Mr. Mackenzie: Not as an exclusive response.
Senator Campbell: We will work up to the rest of it.
Mr. Mackenzie: Certainly, the issue of plea bargaining and bargaining out gun charges is a concern; there is no
doubt about it. I think you are correct in how you stated that.
Senator Campbell: In your area, how many gun-related cases did you have last year?
Mr. Mackenzie: In 2006, we had 126.
Senator Campbell: We only had 211 prosecuted in all of Canada.
Mr. Mackenzie: I find that an amazing figure.
Senator Campbell: It comes from Senator Stratton's favourite document. I will promote it for him. It is dated
February 14, 2008, and is entitled ``Crime Trends in Canada,'' by Lynn Barr-Telford, Director of the Canadian Centre
for Justice Statistics. I am referring to slide 9 entitled ``Fewer firearms cases being convicted.'' It is near the back.
We have had some evidence — and I think this relates to British Columbia and certainly to your area — that much
of the gun-related crime involving death is endemic to certain communities where we have difficulties. In British
Columbia, I do not think it is any secret that young Indo-Canadian males are being killed. I think we see much the
same thing in Toronto, and yet with the minimum sentencing and all the rest of it, we cannot seem to stem the tide. Do
you have any ideas outside of Bill C-2 that would address this problem?
Mr. Mackenzie: There does seem to be this culture developing with some young folks that it is a status symbol or
part of their being, almost, to carry guns. We all know that much of this activity is associated with criminal
organizations and their criminal enterprises. I do not really have a response.
I do know that in B.C. the police are working closely with the South Asian community to deal with some of the
cultural issues. It is a long-term, slow process, I am sure. We do need to turn that around. Other than that, I do not
really have a response.
Senator Milne: Senator Campbell has just suggested that we basically eliminate plea bargaining for any crime that is
committed with a gun in hand. However, we heard that the number of people detained in provincial institutions
awaiting trial now rivals, and in some provinces like Ontario dramatically exceeds, the number of people actually
found guilty and serving sentences. If we eliminated plea bargaining for so many of these crimes, that number would
mushroom, would it not?
Mr. Mackenzie: I cannot answer specifically, but I will point out one thing that you are probably aware of. I do not
have any scientific or academic data to support this, but it is our sense, certainly in British Columbia, that many
defence counsel tend to not fight for bail for their clients because they will get double time pre-sentence. It is a bit of a
tactic by some defence lawyers — and, again, I am not criticizing them; they are doing their job — to have their clients
do pre-sentence remand time, if you want to call it that, because they will get double time.
I did suggest in previous testimony that Parliament needs to address this. I think they have initially started looking
at the issue of double time prior to the actual trial. That might be one aspect of it, as far as the increase goes.
Senator Oliver: My questions relate to luring, and they are for Detective Sergeant Scanlan and Staff Sergeant Frizell.
In your presentation, Staff Sergeant Frizell, you had a section called ``luring.'' One of the things you referred to was
a recent training course on Internet luring, where 20 police officers went online. I was shocked at what occurred in the
First, I appreciate the support that you have for Bill C-2, particularly with respect to the age of protection. I
understand why you brought up luring in that context. However, some of the things you said about luring actually go
beyond this particular bill. Given what you determined from that particular one-hour event, were any charges laid?
Mr. Frizell: Yes. We followed up on all investigations.
Senator Oliver: Were there convictions?
Mr. Frizell: I do not know. I would assume so, yes.
Senator Oliver: A couple of years ago, I introduced in the Senate a private member's bill against spam. One section
of the bill dealt with the Internet sites of email addresses of young children — 14, 15 and so on. I had provided that
there would be very severe penalties for any person entering those sites and giving fraudulent information or materials,
pornographic materials, and luring. The bill failed; it was blocked in committee and did not get anywhere. If we had an
anti-spam bill specific to the problem of luring children, do you think that is something that might help?
Mr. Frizell: Many measures could be taken. This is a very basic one. The Internet has opened up a whole
opportunity for predators of all sorts to get to children, and not just children. There is a myriad of things we could be
doing. It could be something as simple as when a child joins a site, there would be age or parental verification. For
example, in the U.S., parents have to acknowledge that they are aware of what their child is doing. There could be child
privacy acts that look out for the privacy of children online.
However, children do not have a voice like adults do. They do not lobby or vote, so it is important that we speak for
them and that measures such as you have described are entertained fully if we are to prevent the commission of
offences against children.
Ms. Scanlan: I think every measure we can bring forward to help keep kids safe is very important. One thing we have
to note, though, is that the very popular social networking sites do have age limits — 14 and up or 16 and up. Kids are
curious and crafty, and they still manage to get on to these sites. They can work around that. However, if legislation
were introduced to help protect even younger kids, because we are seeing the age go down and not up, I would support
Senator Oliver: Down to what ages — 15, 14, 13 and younger?
Ms. Scanlan: We know that if we want to help to keep kids safe, we have to educate them about responsible use of
the Internet at a much earlier age, even starting as early as Grade 1. They are going online at much earlier ages because
it is becoming an everyday life tool. If they have older siblings or parents who go online, kids are often introduced at a
younger age. There are also computers in schools and libraries, so it is very accessible.
Senator Tardif: My question is to Detective Sergeant Scanlan and Staff Sergeant Frizell. Certainly, I support the
prosecution of sexual predators, whether they prey on young children on the Internet or elsewhere. However, my
concern is the situation of a 21-year-old boy and his 15-year-old girlfriend engaging in kissing and sexual touching.
Under this bill, that would be considered a criminal act and this boy would be considered a criminal for that behaviour
with his girlfriend. Would Bill C-2 increase such categorization and stigmatization of that young person?
Ms. Scanlan: The age difference included in the bill is, in particular, meant to protect 14- and 15-year-olds. The age
range of five years is given as an acceptable difference in age. I know there are some cases in the United States that have
been particularly troubling. Young people need to be protected and that needs to be considered. If young people are
aware of the laws as they are laid out, then they need to consider the law and watch their behaviour carefully.
Senator Tardif: You would be ready to say that, unfortunately, it is the responsibility of the person whether he is
committing a criminal act.
Ms. Scanlan: It will be on a case-by-case basis. The reports are very low in number and the extent of the sexual
nature of the relationship would be taken into consideration.
Senator Tardif: Who would take this into consideration?
Ms. Scanlan: It would be taken into consideration when it comes to the attention of the police.
Senator Tardif: Would you prefer the attention of the police rather than that of the judiciary?
Ms. Scanlan: The police have the ability on a case-by-case basis to make the decision on whether to prosecute. We
always bring it to Crown attorneys. We do not want to get into the situation of determining whether there is sexual
activity. That is a moral decision that will be decided on a case-by-case basis.
Senator Tardif: My point is that, yes, it is a moral decision that becomes a legal issue because of the way in which the
bill is framed in that particular circumstance.
Ms. Scanlan: It is not defined, as I see it.
Senator Tardif: I agree.
The Chair: Mr. Mackenzie, on page 3 of your statement, you said that Statistics Canada issued a report last week
that highlighted the significant increase in the number of firearms-related crimes committed in Canada over the past
few years. My recollection is that what the report said was consistent with what the Canadian Centre for Justice
Statistics had given us about earlier years, which was that the number of violent gun crimes was about stable but that
the proportion of those crimes committed by young people was rising. That is an alarming thought. However, the total
proportion was roughly stable in recent years. Are we talking about two different studies?
Mr. Mackenzie: No, it is the same study.
The Chair: Would you agree with my recollection?
Mr. Mackenzie: I will accept that.
The Chair: My next question is to Ms. Scanlan and Mr. Frizell. I do not know how you can bear the agony of doing
what you do day after day, but like everyone else, I am grateful to you for doing it. I can think of no more wrenching
I find myself wondering about what has gone wrong in our legal system. Section 153 of the Criminal Code already
prohibits sexual exploitation of a young person under the age of 18, and simple consent is not a defence. The courts are
instructed to take into account the age, the age gap, the evolution of the relationship — the grooming that you were
talking about — and the degree of control or influence over the young person by the older person. That is exploitation,
and much of what you were talking about is clearly exploitation of the grossest kind.
Section 172 of the Criminal Code, in some detail, prohibits Internet luring of young people. Those provisions are
already on the books. If you are telling us that they are not working, why are they not working? What is going wrong?
Mr. Frizell: Section 153 kicks in once the horse has left the barn; it is not a preventative section. We do not see
websites that list the age of consent in Canada as 14. Unless you are in an exploitive relationship, it is simply the age of
consent here and they come to Canada.
Luring was mentioned to give you an idea of the kinds of charges and where young people are met with jeopardy.
Offenders will come to Canada to meet, so it is not a luring situation. They meet over the Internet and then come here.
We need to let them know that Canada is closed for business. We need to build a barn door to keep the horse from
getting out rather than rely on section 153, which is a measure once the offence has already happened.
The Chair: Most Criminal Code sections take effect once an offence has occurred. The age of consent would indicate
where you are not allowed to do this. It is only after you have done it that you will be hauled up before the courts.
Mr. Frizell: That is true, but it is the behaviour that you are trying to prohibit. I would like to think that the
Criminal Code prevents many people from committing those crimes in the first place. The average person would not be
aware of section 153 or be able to read and make sense of as a preventative measure. It is more for the police and
lawyers to address the situation that has already occurred. Age of protection, rather, makes it clear as to where we
draw the line in Canada: Children below this age threshold are given the full protection of the law.
The Chair: I believe I understand what you are trying to say, although I still find myself a little puzzled.
Ms. Scanlan: I agree that it is seen as a preventative measure. It is clear that under the age of 16 our youth are better
protected. The consent issue that I raised before would not have to be determined regularly in court. Occasionally,
there will be times when it could be, but most often it would be accepted that if you are under the age of 16, the next
issue is that the offence actually occurred and not that they were consenting to it.
The Chair: Have sections 153 and 172 been useful to the police and prosecutors when they charge someone with such
a ghastly offence? Have these sections been usable in court, or have they run into difficulties?
Ms. Scanlan: I do not think many of them have run the full test. Certainly, we have laid charges on the basis of the
section on luring, but we have not laid as many in respect of section 153.
The Chair: It is all still too new for us to know.
Ms. Scanlan: It is challenging. When you deal with street people, street prostitution comes to mind. It is always a
matter of who they are with, why they are with them and in what context. Because young people are so vulnerable and
may have left a situation at home worse than the one they are in now, you do not always get the truth up front and may
not be able to proceed the way you want to.
Senator Stratton: I appreciate your being here, witnesses. Like Senator Fraser, I admire what you do. It takes a lot
of courage and I know I could not do it.
I would like to get back to the age of protection issue and the provision regarding five years plus a day. One of our
people said that there is a tremendous difference emotionally and mentally with respect to someone who is, say, age 15
and someone who is age 21 or 22. Their approach to life is different. A girl at age 15, for example, could be controlled
to a great degree by an older guy. I would expect you would take that into consideration when you go into such cases.
How you would determine that, I do not know. It becomes an area where it argues for the fact that it should be done
on a case-by-case basis — at least I think that.
As Senator Carstairs said earlier, what if a 14- or 15-year-old girl dresses up and entices a guy who is 21 or 22.
Perhaps he is a little naive. The same issue prevails there, but on the opposite side; that is, it is enticement by a younger
girl to an older guy. I assume that is on a case-by-case basis.
I am not asking you to comment unless you want to do so. No comment? Good. I wanted to be clear on that.
Chief Mackenzie, I want talk about the figures that Senator Campbell shared with us. He said that in 2005-06, there
were 211 cases completed in court where the most serious offence was a firearms offence carrying a mandatory
minimum sentence of four years of imprisonment. The statistics in the same document indicate that the rate of youth
accused of firearms-related violent offence increased 32 per cent since 2002 and the attempted murder rate was up 24
per cent since 2004. Could you comment on the difference? Is it because there are plea bargains?
Do you agree, first, with the statistics that I quoted on the firearms-related offences by youth and the attempted
murder rate? Those are disturbing statistics.
Mr. Mackenzie: I have not read that report, so I cannot speak specifically on the statistics.
Senator Stratton: We will get you a copy of that report, then.
Mr. Mackenzie: Certainly, our experience is similar to that. Whether you are talking about rates of crime
statistically, or whatever, the police experience across this country is very simple: The streets have changed over the last
number of years. There are a lot of guns on the streets. To re-emphasize, there seems to be a lack of response by the
legal system to deal with that troubling reality. We are looking to Parliament to assist in that response.
Senator Stratton: An interesting statement by a previous witness was that this may be a short-term aberration. To
measure this kind of thing over five, six or seven years is too short a time frame. You must measure 10 years and
beyond. That is not the sense I get. I would like your opinion as to whether or not you really feel that this is increasing
at a dramatic rate year by year and is not showing signs of diminishing.
Mr. Mackenzie: We have not seen it as an aberration. I am sure the social scientists would give you better
I have been a police officer for 32 years and am leaving the police service in four months. I have a bit of personal
experience, if it is of some use. I was a police officer with the Vancouver Police Department for many years, and I dealt
with very few guns. I am the police chief of a police department with 200 officers, and we deal with guns regularly in a
relatively tranquil city. I do not see it as an aberration; I think it is a very troubling change to our culture. As a citizen,
it concerns me, let alone as a police chief.
I wish to say — again, hopefully not out of line — whether it is an aberration or not, we have a situation here that
requires response because we have shootings and killings and people walking around with guns. It is that simple. I do
not mean to make it sound too simplistic, but that is the reality of the experience of police officers and communities
across this country. We believe the current response is inadequate.
Senator Baker: Staff Sergeant Frizell, you said that you were associated with the international section. What did you
mean by that and what function do you perform?
Mr. Frizell: Internet crimes against children is a borderless offence. We have people in Germany detecting offenders
in Canada, and we have offenders in Canada extorting girls in other countries. You very much have to go back and
If someone in Germany finds that either an offender or a victim is in Canada, they need a conduit. For example, if it
is a little girl living in Saskatoon, Germany does not deal with the Saskatoon Police Service; they have no idea how to
look that up. We are the conduit for dealing with investigations that originate outside of Canada and need to come in
and vice versa. We also provide training, research and technology. We do everything we can to support the
investigators in the field.
Senator Baker: Does a great deal of your work involve these sites for which people pay to access? Is that part of your
Mr. Frizell: Yes; it is a significant part.
Senator Baker: You say it is a significant part. Therefore, it would be a coordinated investigation with police forces
in other nations.
Mr. Frizell: That is right.
Senator Baker: What limitations are you under as far as the requirements of Canadian law?
I noticed you started to smile, Madam Chair. I imagine it is quite a subject of conversation. You have these foreign
nations, yet they are partaking with you in an investigation to try to catch these perpetrators. I suppose you are bound
by Canadian standards on how search warrants and other things are executed in other nations. Am I incorrect in that
Mr. Frizell: No. The Charter applies on a more global basis. In other words, as a Canadian, you cannot commit an
offence in Germany and expect the Canadian Charter to protect you. You have chosen to go to Germany and commit
Most of our laws and the mutual legal assistance treaties are designed to assist investigations where someone has
gone to another country and committed an offence. When someone is on the Internet in Canada, offending against
someone in the U.K., this is the first time in our history of which I am aware that we have to rely on the laws and the
police in another jurisdiction to keep our children safe in their own bedrooms in this country. They have to rely on us
as well. That is why we are very strong proponents of Canadian legislation keeping pace with that in other developed
Senator Baker: You said a great deal of your work has to do with these sites for which payments are made by the
perpetrators. Do the sites that manufacture the material that is contrary to Canadian law, and the payment for those
services, sometimes stretch into two and three different countries? For example, is the settling of a credit card account
done in Europe somewhere and the site for compiling this material could be in the United States, or are the
transactions fairly consistent in the sense that they are between one person and another or an agency of some sort?
Mr. Frizell: It is complicated. Children could be raped in one country or several countries. The images could be
funnelled to a point in another country where the offenders would have a site for advertising hosted out of one country,
a site for payment out of another, and a site for hosting the images out of yet a third country. These things can change
in a matter of minutes. Where a site is being hosted out of one country, in a day it could be hosted out of a completely
different time zone or hemisphere. It is extremely difficult to track these folks down.
Senator Baker: Could you tell us what nation predominates as far as the payment of these services is concerned? Is
there one country to which many of these credit card payments go?
Mr. Frizell: I do not have any recent information on that.
Senator Milne: Detective Sergeant Scanlan, I have been reading that Minister Oda said that Canada will spend $2.6
million over the next three years to train police agencies in developing nations to use this Canadian-developed child
exploitation tracking system. I understand that was developed because one of your cohorts in the Toronto Police
Service, Detective Sergeant Paul Gillespie, sent an email to Bill Gates asking for help in stopping Internet child abuse.
I am appalled to think there are 50,000 predators online at any one time around the world. If you were speaking to
parents right now, which you are because this hearing is being televised, what would you tell them to do to protect their
Ms. Scanlan: The number one thing I would say is to keep the lines of communication open with your children and
to plan for it in advance just as you would a fire drill. The number one fear of kids is that you will take their access
away, so if something happens they might not tell you. They may be afraid to tell you or they may tell you in bits and
pieces and you may not get the whole story. However, if you have an open discussion in advance with your children
and talk about the potential of cyber-bullying or someone trying to lure them, when something does happen your child
will know what your response will be. They will probably seek you or another trusted adult out and then you can deal
with the situation effectively.
Senator Milne: I hope people are listening.
Senator Andreychuk: Just to sum up your briefs, and we are talking about Bill C-2 here and the age of protection
being raised to 16, children have not changed in the sense that they grow and mature and their emotional well-being
takes time. We have watched maturation issues for a long time, and we have often argued as to when one is fully an
adult. We seem to be centering on the age of 18 now for being fully adult.
I used to say that children are the same, but the tools they have today are different. There is the Internet, and they
have access to information that they never had before. When I was a judge in Family Court, I looked to the
community, the parents, the school and perhaps the newspapers or maybe a television show or two that would impact
them. In this new age of cellphones and the Internet, the tools are infinite. We need to retrain children about how to
protect themselves and to teach parents what to do. Parents used to say, ``Be wary of strangers.'' Going on the Internet
is not the same as equipping a child for life in the school or on the street.
I was interested that the Canadian Centre for Child Protection was given $2 million to develop program tools for
parents to identify all these issues you have been talking about. Part of what I see Bill C-2 doing is educating the
Canadian public to be aware of these problems and also that that behaviour is not acceptable. You cannot do it in
Canada; you cannot do it offshore. I like Ms. Oda's attitude to it because we cannot do it alone. It is worldwide
problem, and children are vulnerable wherever they are.
Will Bill C-2, properly handled, be one more educational tool to say that this kind of behaviour is unacceptable? The
kind of people who intrude on the maturation of young people are different from when I was growing up. We need to
understand what is behind the move to increase the age of protection from 14 to 16 given the tools and access we have
created. Am I correct that that is the fundamental philosophy behind this?
Mr. Frizell: I agree with you. As I said earlier, it draws a line in the sand. This is what is acceptable in Canada and
this is what is not.
Senator Cowan: Chief Mackenzie, I want to go back to the discussion that you and I had earlier. Senator Campbell
had some comments to make and questions to ask about the incidence of gun-related crimes, the number of times that
charges are actually laid.
I think it would be a mistake if we were to do something that people falsely believed was effective, when in fact we
were letting them down in the sense that people would assume that adopting these minimum mandatory sentences
would mean that everyone who got caught with a gun would go to jail for whatever period of time was stipulated. The
bill takes away a judge's discretion but not the discretion of the Crown to make a deal as these cases progress through
Is there not a risk that the public rightly would assume that this bill fixes a problem and that those bad people who
have guns and should not have guns will go to jail, no matter what happens? In fact, they will not go to jail. I look back
at 1995 when a significant number of offences were added to mandatory minimum sentences. We have said time and
time again to government officials: You have had since 1995 to show us that those mandatory minimum sentence
additions to the Criminal Code have had an impact. Nothing has been shown.
One assumes that if there was positive information to support mandatory minimum sentences, the government
would have trotted it out already, but it has not. Are we not running the risk of compounding the problem by falsely
misleading the public into believing that these provisions in Bill C-2 will make a difference when they will not?
Mr. Mackenzie: I cannot respond to that question in any way other than to repeat that from our perspective what
we have now does not seem to be working and that the CACP would not support this scheme if we did not believe that
it had a good likelihood of improving the current scenario. Your comments are fair, and you would need more
informed people to respond to them than I. Perhaps some Crown counsel should be here to answer that question.
There is a close relationship in B.C. between Crown counsel and the police. There is a provincial committee of which
I am co-chair along with the Assistant Deputy Attorney General, and we talk about public policy and harmonizing
police strategies and priorities with those of the Crown, accepting the fact that we are independent of each other. I am
confident, and I think the CACP is confident, that Crown counsel will always address the way they apply discretion in
the public interest, with an understanding that this issue is of such concern that Parliament has brought in increased
mandatory minimum sentences and we should not deal those away. Would that happen all the time? No, but I believe
you would see greater incarceration.
Senator Cowan: Again, with the highest respect for Crown attorneys, why should we think that their exercise of
discretion is somehow better in the public interest than that of judges? There is no appeal from a decision of a Crown
attorney, but there is an appeal if a judge is too lenient; that is what appeal courts are for. Show me where I am wrong
Mr. Mackenzie: I think you make a rational argument. You would have to ask a constitutional expert whether or
not Parliament even has the ability to interject in Crown discretion. Parliament has the ability within the Charter of
Rights to set minimum penalties.
Senator Cowan: Within certain parameters.
Mr. Mackenzie: Within the parameters of the Charter, and the courts will have the final say on that.
The Chair: I should like to thank you all three of you. We have heard interesting witnesses as we continue our study
of this bill, but I have to say your testimony has been perhaps the most gripping of all. We are very grateful to you.
Honourable colleagues, we are very pleased to welcome, at this close of the afternoon, the following witnesses:
appearing as an individual, Mr. Mohamed ben Amar, Professor at the University of Montreal; from the Canadian
Centre on Substance Abuse, Mr. Doug Beirness, Manager, Research and Policy; and from the BC Civil Liberties
Association, Mr. Kirk Tousaw, Chairman of the Drug Policy Committee.
Have you decided amongst yourselves who would start? Professor ben Amar?
Mohamed ben Amar, Professor, University of Montreal, as an individual: Madam Chair, I wish to thank you for
having invited me to appear before your committee. Driving under the influence of a drug is a major concern to us all.
Drugs that impair the ability to drive a motor vehicle are called psychoactive drugs. A psychoactive substance may
alter people's perceptions, mood, consciousness, behaviour and various physical and psychological functions. There
are five main categories of psychoactive substances, as you will find in my presentation.
The first one is for what we call central nervous system depressants. These drugs can slow down mental functions
and make us feel more relaxed and less aware of our environment. They include alcohol, another category of
substances called anxiolytics, which reduce or eliminate anxiety, sedatives, that calm the person, and hypnotics, which
help to sleep. I would mention, within this category, substances that you are familiar with due to their popular use:
Valium, Xanax, Fiorinal, Imovan and Starnoc all belong to this category. This same category includes GHB, opiates,
such as morphine, codeine, methadone, heroin, and, lastly, volatile solvents.
The second category is that of what we call ``central nervous system stimulants,'' which mainly affect the brain. They
are divided into major stimulants, including amphetamines and cocaine — and one must remember that amphetamines
are more powerful than cocaine — and minor stimulants, including caffeine and nicotine.
The third category is that of hallucinogens. These substances disrupt the mental process and can cause rather major
impairment. This category includes cannabis and its derivatives, as well as other hallucinogens such as LSD, mescaline,
PCP, ecstasy, ketamine, et cetera.
The fourth category is that of psychoactive medications, essentially antidepressants, antipsychotics used to treat
mental disorders such as psychoses, mainly schizophrenia, and mood stabilizers, for the treatment of bipolar disorder.
Finally, the fifth category comprises what we call androgens and anabolic steroids.
By reviewing this classification, we can see that each drug has its own properties. Therefore, evaluating a state and a
level of intoxication by a particular drug requires specific tests.
I would like to comment on four aspects of the section ``Driving while impaired by a drug'' of Bill C-2. My first
comment pertains to sobriety tests on the road, which are perfectly acceptable. It must nevertheless be underscored
that these tests have to be validated scientifically for each class of substance, and that one must ensure that the
interpretation of the results is accurate.
The second element pertains to the provision of body samples at the police station. In my view, the blood sample
should be privileged, because saliva tests are not reliable and urine tests have weaknesses. However, a positive blood
test does not necessarily mean that the person was impaired by the drug when he or she was piloting the motor vehicle.
Third, as for blood alcohol tests, I have a concern with regard to the restrictions to the notion of proof to the
contrary. It is very difficult, in my view, to demonstrate apparatus misfunction. Moreover, it is possible that, in certain
cases, although the result of the breath test at the police station exceeds 80 milligrams of alcohol per 100 millilitres of
blood, for different physiological reasons, the level of alcohol of the accused at the time he or she was driving was
below the legal limit.
Last, it is important to take into consideration pharmacological interactions, because often times a drug is not taken
alone and is mixed with alcohol or with another psychotropic substance, which affects the results even further.
That just about covers what I had to say. I thank you for your attention and would be pleased to answer your
The Chair: If all witnesses were as precise and concise as you, the time devoted to our study would be greatly
reduced! Not that this has not been fascinating. All of our witnesses have been very interesting.
Doug Beirness, Manager of Research and Policy, Canadian Centre on Substance Abuse: In the interest of brevity, I
will read my remarks as that will prevent me from going off topic.
We at the Canadian Centre on Substance Abuse appreciate the opportunity to meet with you today to share our
views on the issue of drugs and driving in Canada as you consider Bill C-2.
As you may know, CCSA is Canada's national non-governmental organization, formed in 1988 by an act of
Parliament to provide national leadership and evidence-informed analysis and advice on substance use and abuse in
Canada. Accordingly, the issue of drugs and driving is of great interest to our organization. We believe we are well
positioned to contribute meaningfully to the discussion.
CCSA supports the drugs and driving sections of the legislation, particularly with respect to the requirement for
drivers who are suspected of driving while impaired by drugs and/or alcohol, to submit to physical coordination tests
such as the standardized field sobriety test, to submit to an evaluation conducted by an officer trained in the drug
evaluation and classification program, and to provide a bodily fluid sample for analysis. These provisions help to
create a process that is parallel and comparable to that currently used for alcohol and driving.
My colleagues and I at CCSA believe impaired driving is an area of serious concern in Canada. When the public
thinks about drug use, they tend to think in terms of the lives destroyed through addiction to these substances. They
often overlook the acute and tragic effects of a collision caused by a driver whose ability is impaired by the use of
drugs. There is an ever-increasing body of evidence documenting the impairing effects of these drugs and the elevated
risk of traffic crash involvement following drug use.
Epidemiologic studies of drug use among fatally injured drivers in Canada indicate that drugs, often in combination
with alcohol, are detected in up to 30 per cent of fatally injured drivers. Public opinion surveys indicate that about 17
per cent of Canadian drivers report having driven within two hours of using an impairing substance.
An analysis of data from the recent Canadian Addiction Survey found that 5 per cent of drivers in Canada admitted
driving within two hours of using cannabis in the past year. Among those aged 16 to 18, 21 per cent reported driving
after using cannabis. That is slightly higher than the 20 per cent who reported driving after drinking. Such findings
suggest that the drugs and driving problem is by no means insignificant and may, in fact, be increasing.
Our work on this issue highlights the risks posed by the impairing effects of drugs in traffic. At the same time, it
serves to illustrate that relative to the extent of knowledge about alcohol and driving, the knowledge base on drugs and
driving is extremely limited. To a large extent, this is because drugs and driving is a far more complex issue than
alcohol and driving. These complexities have hindered progress in the field, rendering as tenuous any unequivocal
statements about the magnitude of the problem of drugs and driving. As such, there is a dire need for credible scientific
research to shed light on the true nature and magnitude of the problem of drugs and driving in Canada.
A persistent difficulty that has plagued research in this field is the detection and measurement of impairing drugs
used by drivers. Whereas the presence and quantity of alcohol can be easily determined through breath analysis, no
valid and reliable device comparable to the Breathalyzer currently exists to test drivers for other substances.
Technological innovations using oral fluid samples hold promise for a device to detect the presence of other drugs;
however, an acceptable and reliable device may be several years away.
In addition, unlike alcohol where agreed-upon levels of blood alcohol content consistent with impairment exist, such
levels have never been established for other types of drugs. The ``alcohol-crash relative risk curve'' presented in the
classic study by Professor Borkenstein, which was influential in setting the 80 milligram per decilitre alcohol limit in
1969, has yet to be established for other drugs. Hence, it is critical that tests to determine the extent of driver
impairment accompany the collection and testing of bodily fluids for the presence of drugs.
Over the past several years, my colleagues and I have been working with the RCMP on an evaluation of the
implementation of the drug evaluation and classification program, otherwise known as the DEC program. Last week,
you heard from Sergeant Rob Martin that the DEC program is a systematic and standardized protocol to assess
suspected impaired drivers for signs and symptoms associated with impairment by drugs. As part of our project, we
have reviewed the scientific evidence on the accuracy of the DEC program and concluded that the ability of trained
officers to identify the drug category responsible for the observed signs and symptoms was very good, with measures of
accuracy typically exceeding 85 per cent. False negatives — that is, misses — were not uncommon. However, false
positives — that is, errors — were relatively rare. This review paper was recently published in the peer-reviewed journal
Traffic Injury Prevention. I provided the clerk with a couple of copies of that paper.
We have also examined the drug evaluations conducted by Canadian officers trained in the DEC protocol. Copies of
this report are also available from the clerk. The findings show that the judgment of the evaluating officer concerning
the category of drug responsible for the observed impairment matched the drug category found through toxicological
analysis in 95 per cent of these cases. If we only look at those cases that actually involved a suspected impaired driver
found on the road, the accuracy increases to 98 per cent.
Our work has also investigated the reliability of the DEC protocol, that is, the degree to which different officers are
able to agree on the category of drug involved. We provided a randomly selected group of drug recognition experts
with evaluation test results conducted on 23 individuals. The information provided included only the recorded
observations and the results of tests performed during the original evaluation. The report of the arresting officer, the
evaluating officer's narrative and any admissions of drug use by the suspect were specifically excluded from the
information we provided. Using this limited set of information, our analysis showed that officers agreed on the
category of drug involved 75 per cent of the time.
Given that our experts were not able to observe the suspect first hand and that only limited information was
provided, we consider the results to be very good. The results are also consistent with those from a similar study
conducted in the United States.
As positive as our research results are, it is also evident that the DEC protocol is not perfect. The data indicate that
the accuracy of the DEC protocol varies according to drug class; that is, some drugs are simply more difficult to detect
than others. The use of more than one drug and the use of alcohol in combination with another substance can mask
some symptoms and exacerbate others, leading to a misspecification of the drug category.
Nevertheless, we are convinced that the DEC protocol is currently the best available procedure to assess drug-
induced impairment. Further research and evaluation is necessary to better understand the role of drugs in road safety
and how best to identify and deal effectively with those who engage in the behaviour. For example, in evaluating the
accuracy of DEC assessments, it would be beneficial to know the quantity of the substance found in the fluid sample
rather than simply an indication of its presence or absence. Very low drug levels might help to explain some of the cases
that are missed. The drug levels could also be used to help identify thresholds for the detection of various types of
Further research and development of the protocol will ultimately lead to improvements. Our own research continues
and we are currently using existing evaluations to identify key sets of variables in the assessment that can be used to
help identify specific drug categories.
We also believe that there is a necessity to focus on the issue of impairment that is fundamental to the overall intent
and purpose of the proposed legislation. The mere presence of a drug is not sufficient to demonstrate that the driver's
ability was impaired. The legislation outlines a process whereby the investigating officer must establish reasonable and
probable grounds of impairment of the ability to operate a motor vehicle before a demand for a bodily fluid sample is
made. This process eliminates fears about the possibility of criminal charges being laid as a result of a positive drug test
that may not be linked to actual or recent drug use.
The process also eliminates the possibility that drivers using an over-the-counter medication or drugs prescribed by
a physician will necessarily be subject to criminal charges. The police must first establish that the driver's ability to
operate the vehicle was impaired.
Undoubtedly, you have already recognized that Bill C-2 will require officers trained in both field impairment testing
and drug evaluation and classification techniques. There are currently 2,427 officers trained in the standardized field
sobriety test and only 214 certified drug recognition experts in Canada.
From personal experience, I can attest to the fact that the DEC training is both intensive and demanding. It is, by all
accounts, the most difficult police training course there is. It requires commitment, ongoing study and practice. If this
legislation is to have a beneficial impact on drug-impaired driving, there needs to be an ongoing commitment to the
training of officers in these techniques, as well as to the continued development and evaluation of these techniques.
The introduction of this legislation and the training programs necessary to support it are bold steps, and they are
needed to address a persistent and growing problem. However, as you consider this legislation, it is important to
recognize that enforcement is only one component in an overall strategy to deal with drug-impaired driving. There is a
need to include prevention, adjudication and rehabilitation as integral components of a broader strategy to deal
effectively with drug-impaired driving.
Education and awareness programs specifically targeted to various subgroups of drug users — youth, middle-age
people and seniors — are also required. Prosecutors and the judiciary must be well-informed and knowledgeable as to
the types of evidence that will be presented in drug-impaired driving cases; and convicted offenders must be dealt with
appropriately, not only through sanctions, but with effective rehabilitation options.
As a final note, we would like to recommend that due consideration be afforded to the need for a comprehensive
evaluation of the legislation and the widespread introduction of the DEC program. We view evaluation as more than
simply a process to determine whether or not a program has failed or succeeded. Evaluation serves to inform policy-
makers of the areas where improvements may be needed to maximize the effectiveness of a program and where
efficiencies can be introduced. In the area of drug-impaired driving, a commitment to ongoing monitoring and
evaluation is critical.
In closing, I appreciate the opportunity to present our views on drugs and driving to the committee. Thank you for
your interest, and I look forward to any questions you may have.
Kirk Tousaw, Chair, Drug Policy Committee, B.C. Civil Liberties Association: I am here as a member of the volunteer
board of directors and as the Chair of the Drug Policy Committee of the B.C. Civil Liberties Association. The
association is Canada's oldest and most active defender of civil liberties and democratic freedoms, and is this country's
pre-eminent advocate in this area.
I thank the committee for the opportunity to present on this important issue and the impact of Bill C-2. I will begin
my comments with a general proposition concerning the role of criminal law in our society. I will then discuss three
specific points regarding Bill C-2. My comments will focus on the proposed mandatory minimum sentences for
firearms offences; the changes to the age of sexual consent; and the granting of new, broad investigative powers to
police in cases of suspected drug-impaired driving.
As a general matter, government should be loath to use the criminal law power, and particularly cautious when
enhancing penalties, creating new crimes or giving legislative blessing to significant increases in police power. This is
because the criminal law represents the most coercive tool in the government's toolbox.
The civil liberties that Canadians enjoy and that form the cornerstone of our democracy are rarely more at risk than
when the government acts in the area of criminal justice policy. Changes to the criminal law should, at minimum, be
contemplated only when there exists a demonstrable social need for the change, and they should be implemented only
after very careful consideration of the need and the effects of the policies at issue.
Unfortunately, Bill C-2 fails on both counts. The proposed legislation does not respond to any actual or perceived
need in the Criminal Code, as many others, including criminology professor Neil Boyd, have noted before this
committee. Perhaps worse, the process by which this bill was pushed through the House of Commons, and the attempt
by the government of the day to pressure this body into quickly passing the bill, demonstrates significant disregard for
the principles of careful consideration, reflection and debate over deeply important issues.
The issues of firearms, youth sexual activity, protection of privacy and regard for the due process of law are far too
important to be used for short-term political gain. All Canadians are done a disservice when speed is substituted for
substance. I am pleased that this body appears prepared to take the necessary time to reflect on these matters, and I
urge you to stand strong in the face of political pressure for haste.
With respect to mandatory minimums, the association is generally opposed to the use of mandatory minimum
sentences. Judicial discretion in sentencing is a hallmark of our democracy and a fundamental principle of our criminal
justice system. Indeed, the occasional media sensationalism on the subject of unfit sentences — a statistically rare
occurrence, but likely a factor leading directly to this portion of the legislation — implicitly recognizes this principle
while appearing to argue for the opposite.
In those rare cases where judges have imposed sentences perceived to be unfit — and, accordingly, almost always
too short — the disapproval of the sentence almost universally takes the form of a complaint that the punishment did
not fit the crime. Let me be clear that these cases are uncommon and they are outside the norm for sentencing. In the
vast majority of cases, the sentencing judge does an excellent job tailoring a sentence to the facts of the case before him
There is an old saying that bad cases make bad law. I would amend that to say that bad press often leads to bad law.
Unfortunately, the use of mandatory minimum sentences will exacerbate the problem of unfit sentences. We hear,
though rarely, of cases where a too lenient sentence was imposed for a serious crime. However, if this bill passes, we
can expect to commonly see sentences that are far too harsh in the context of the individual case before the judge
because judges will no longer be able to use their long-standing historical discretion to craft sentences that take into
account an offender's degree of culpability and role in the offence. This is the experience of other jurisdictions that
regularly use mandatory minimum sentences.
Other problems with mandatory minimums include the disparate impact on racial minorities and economically
challenged defendants; the significantly increased costs associated with both the criminal justice system and the
correctional system; a reduced ability for correctional officers and parole boards to impact in-custody behaviour; and
an increasing tolerance for the imposition of such mandatory minimum penalties in situations where the empirical
evidence of the efficacy of these policies is even more lacking than in the area of firearms offences — such as, for
example, drug crimes.
This last factor is evident in the current government's proposed Bill C-26, which seeks to add a series of mandatory
minimums to our nation's failed and harmful policy of drug prohibition.
On the issue of mandatory minimums, I would close by quoting from a 2002 review of mandatory minimums
conducted by the Department of Justice Canada. I quote:
The use of incarceration as a preventive measure, therefore, must be finally tuned or its counterproductive effects
may well outweigh its benefits. Therefore, MMS should not be introduced merely to placate a political
constituency or without regard to a thorough understanding of the infractions or offenders for whom they are
The association respectfully opposes raising the age of sexual consent. Again, there appears to be little or no
empirical evidence demonstrating any need to change the long-standing age of sexual consent in Canada. Responsible
sexual decision-making is a developmental process that requires social guidance, not legislative control. Young people
are already protected from sexual exploitation, Internet luring and prostitution by sections 150 through 172.1 and
subsections 212(2) and 212(4) of the Criminal Code covering sexual offences and disorderly conduct. Raising the age of
consent will create barriers to sexual health information, especially among marginalized youth who need it the most.
Barriers to sexual health information will result in more cases of sexually transmitted disease, HIV/AIDS and
pregnancies among youth. Raising the age of consent may criminalize healthy sexual relations between young people
and may place undue restrictions on their autonomy and sexual freedom. Finally, the impact of this law is likely to be
discriminatory because its effects will be more acutely felt by sexual minorities, who already face significant
stigmatization as a result of their sexuality. The best way to protect children and youth is through education and
empowerment, not the criminal law.
Under the Criminal Code, the age of consent currently for anal intercourse is 18 years — four years higher than
other forms of sexual conduct. This disparity has been criticized for targeting and criminalizing consensual sex between
adolescent sexual males. When the Ontario Court of Appeal declared that section of the Criminal Code to be
unconstitutional, a decision also joined by the Quebec Court of Appeal, Justice Abella, writing for the majority,
pointed out something worth considering in this context. She wrote:
Health risks ought to be dealt with by the health care system. Ironically, one of the bizarre effects of a
provision criminalizing consensual anal intercourse for adolescents is that the health education they should be
receiving to protect them from avoidable harm may be curtailed, since it may be interpreted as counselling young
people about a form of sexual conduct the law prohibits them from participating in. Hence, the Criminal Code
provision ostensibly crafted to prevent adolescents from harm may itself, by inhibiting education about health
risks associated with that behaviour, contribute to the harm it seeks to reduce.
The legislative summary accompanying Bill C-2 points out the average age of first sexual intercourse is 14.1 years
for boys and 14.5 for girls. Many of these young people will be criminalized as a result of this bill.
Ultimately, raising the age of consent disempowers young Canadians by removing from them not only the ability to
consent but also the ability to withhold consent to sexual activity. The association is concerned that raising the age of
consent will restrict young people's decision-making autonomy and may restrict access to health information and
services for these young people.
At the very least, if the age of consent for non-anal intercourse is increased to 16 years as this bill proposes, the bill
should remedy the existing discrimination in law and reduce the age of consent for anal intercourse from 18 years to 16
years. At a minimum, this would reduce the differential impact of our current scheme on sexual minorities and bring
consistency and a measure of equality to the law in this area.
Finally, on the issue of drug-impaired driving, the association opposes the changes to the Criminal Code in this area.
I will speak about two things: first, the restriction on evidence that may be tendered in opposition to blood alcohol
concentration test results; and, second, the drug-impaired driving testing regime.
The evidentiary restrictions related to blood alcohol concentration tests, or BAC tests, are based on the faulty
assumption that the test is infallible. As undue restrictions on the Charter right to full answer and defence and the
presumption of innocence, these proposed restrictions will certainly be challenged and are likely to be found
constitutionally invalid. Rather than reducing the amount of time required in court on blood alcohol concentration
cases — one of the purported justifications for these changes — this law will dramatically increase the burden on the
criminal justice system. This proposed legislation is good for criminal defence lawyers, such as myself, but bad for the
criminal justice system. The presumption of innocence and the corresponding right to call evidence in one's defence are
the very foundations of our criminal justice system and must not be casually set aside.
The proposed drug testing procedures are problematic for several reasons. I will discuss five of them as briefly as
First, significant concerns exist with respect to the accuracy of the drug recognition evaluation process, or DRE.
Second, saliva, urine and blood testing are highly invasive of personal privacy and are often degrading and
humiliating experiences for the persons being tested.
Third, the process set out in the legislation is cumbersome and extremely time-consuming. We must recall that the
individual is detained by police the entire time.
Fourth, and most problematic, is that the results of both the evaluation and bodily sample testing are of little or no
evidentiary value. The process, while appearing to be scientific, is susceptible to significant error rates. One study listed
in the legislative summary accompanying Bill C-32, which is the government's last version of this proposed legislation,
suggested that average error rates are in the neighbourhood of 21 per cent. Put another way, of every 100 persons for
whom a blood or urine sample is demanded under threat of being charged with an offence for refusing, 20 will have
been falsely accused and improperly and involuntarily subjected to a very invasive process. Moreover, that invasive
process — the forced taking of blood, urine or saliva — yields essentially worthless information. That same legislative
summary is clear on this point at page 13:
Ultimately, there is no measurable link between driving impairment and drug quantity.
Put in legal terms, the information gleaned from the testing is irrelevant to the ultimate issue of impairment. The
biggest burden will fall on marijuana users, in particular on legal and licensed medical cannabis users who can and will
test positive hours, days or weeks after consuming cannabis despite that they may not have used the substance prior to
driving and may not be impaired at all.
The final objection is philosophical rather than practical or utilitarian. Laws should not be promulgated so that the
government may be seen to be doing something as opposed to actually doing something about a problem, whether real
or perceived. The money required to implement this new law is much better spent on educational programs designed to
teach people, particularly young people, about the danger of driving while impaired. We have made great positive
strides in this country using education rather than enforcement as the primary method of achieving our shared goals,
and, critically, education does not unduly infringe upon the civil liberties and freedoms that are the very foundation of
The Chair: Mr. Beirness, you provided a paper on the accuracy of evaluations by drug recognition experts in
Canada, which seems to be extremely interesting, but I am not a scientist. On the last page, table 2 indicates measures
of accuracy according to drug class. What do those numbers represent? For example, with respect to sensitivity, under
cannabis we have 0.791. Does that refer to 79 per cent accuracy or 0.79 per cent accuracy?
Mr. Beirness: It means 79 per cent accurate. I should explain what that is. ``Sensitivity'' refers to the proportion of
cases in which the drug was present and was detected by the DRE examiner. If cannabis was present, the officer
detected it 79 per cent of the time.
Senator Andreychuk: Mr. Tousaw, I respect your work because a good justice system pays attention to justice
broadly and specifically takes into account the offenders and those who may be subject to the consequences of the
Criminal Code. Equally, I respect the prosecutors and the police who also take justice into account but who have their
particular role in enforcement. Therefore, I know that many of your comments come from that point of view.
However, this committee also does its work. Some of us have been on this committee continuously and, in my case,
for 15 years. This issue is not new. We have seen many amendments to the Criminal Code, so I personally take
exception to the fact that we have not had the time to look at this bill. We have heard from over 55 witnesses and we
gave them generous time. Our chair has been eminently fair with all of us to ensure we all received equal time, which I
appreciate. I do not take into account political realities in the same way you do. Our job is to be efficient. Some parts of
this legislation have been before us for more than two years. I have every confidence in this committee that it will carry
out its due diligence. I set aside those remarks that you make, but I respect the rest of your remarks.
Are you against mandatory minimums, or you were addressing something particular in Bill C-2, per se? Did you
make the same kind of representations on the previous Criminal Code amendment bill?
With respect to the age of protection, as the Salvation Army called it, rather than the age of consent, which I happen
to think is an appropriate characterization, education and empowerment are issues now; yet, young people are
extremely vulnerable at those ages of 14 and 15. Education does not seem to be getting to where it can because of the
reticence of sharing those situations. Obviously, we will have a larger category of people now caught. Where the age of
consent was age 14 before, it will now be age 16. I understand that argument, but it does not flow from that that the
change is to get at the adult, not the young person. Have we done such a good job in education and empowerment that
now, all of a sudden, if we go to age 16, the dynamic will change? In other words, I think it is difficult for teenagers to
reach out, to be open with their parents and to get access to the information. Perhaps we do not have enough programs
in our schools. I think that is a fundamental problem with young people.
The change proposed by Bill C-2 is to get at the attitude and the behaviour of adults. We just had a panel that
graphically and horrifically pointed out to us the difficulties of what is going on, particularly with the new
technological tools that are at the disposal of an adult. It is making the situation much more difficult for a young
person aged 14 or 15 today than it would have been, say, in my day. Can you address those issues?
Mr. Tousaw: Yes, I can. I appreciate the work this committee has been doing and I share your comments with the
amount of analysis this committee is putting into this bill. My comments with respect to the haste are directed at the
process in the other legislative body and not to this one. However, I do take your comments to heart.
With respect to mandatory minimum sentences, the association is generally opposed to them — not specific to Bill
C-2 but in general. There is both an empirical problem and a philosophical problem with mandatory minimum
sentences. The empirical problem is that there is little evidence that these mandatory minimums achieve positive social
goals. In other words, there is little evidence of a deterrent effect or that they reduce crime rates. The philosophical
problem is that, as I said in my opening remarks, the discretion of the sentencing judge and the ability to tailor the
punishment to the crime is the building block of the criminal justice system in terms of sentencing. It is only the judge,
sitting in the courtroom and hearing the facts of the case, who has the ability to really apply the law to those facts. That
is the role of the judge. The mandatory minimum sentencing provisions take that discretion away with, I think, tragic
consequences in many instances.
I used to practice criminal law in the United States, where mandatory minimum sentences are much more common.
I can tell you from first-hand experience that when they exist, there are significant problems with people being caught
up who should not be in jail for that length of time and also problems created in the pre-trial process. Often, the fact of
a mandatory minimum sentence becomes a bargaining chip during plea negotiations. Frankly, that is an inappropriate
place for those types of decisions to be made. The discretion, as I think was said during earlier comments, should be in
the hands of the judge and not in the hands of the Crown prosecutor.
Senator Andreychuk: I was a judge. I wanted as much discretion as I could so that I could take into account every
situation. Of course, that is natural. However, this morning Professor Doob rightly pointed out that the role of
parliamentarians is to give guidance to the court. It is not an unfettered discretion that courts have ever had. While
mandatory sentences reduce the amount of discretion, they do not take away discretion; nor, if we were to move away
from mandatory sentences, would they have unfettered discretion.
Is it not the role of Parliament, from time to time and very cautiously, to give guidance to judges in appropriate
situations? Could not one tool be mandatory sentences?
Mr. Tousaw: I agree that it is the role of Parliament to give guidance to judges. For example, Parliament has the
ability either to criminalize conduct or not to criminalize conduct, which either involves or does not involve the
criminal justice system in that particular activity. However, when a mandatory minimum is set, the discretion is entirely
removed to go below that mandatory minimum. While the judge has the discretion to stay at the mandatory minimum
or to go higher, effectively going lower is taken off the table. I do think that is an undue restriction on the role of judges
in the system.
There are cases in which a three-year penalty or five-year penalty for a particular crime is either an unfit sentence or
too harsh a sentence. Those cases may be rare but they do exist, and mandatory minimums remove the discretion to
appropriately tailor sentences in those situations.
With respect to the age of sexual consent, while the bill is ostensibly targeted at the adult, it will criminalize youth
conduct as well. To be fair — and this was raised in the presentation by the earlier panel that I happened to catch the
end of — it is unclear to me that police lack the tools to appropriately target adults engaged in inappropriate
behaviour. The Criminal Code provides a mechanism by which adult behaviour targeting children — luring, predatory
behaviour and exploitive behaviour — are already criminal acts and can be and are prosecuted in this country.
In effect, we are adding a series of laws or tools that are not needed and that may pose significant problems for those
that get caught up in the umbrella.
Senator Andreychuk: On that point, having heard all of the witnesses on this bill, it seems to me that in the past —
2005 and earlier — we have criminalized exploitive sexual behaviour by adults toward children. This bill is attempting
to put the onus on adults not to go down that line and not to say, ``Well, I can do these certain things, but if I stop
short of the actual intercourse or behaviour that is already codified, it is okay.'' Does that not put the young person
under a lot of undue influence from an adult who probably does not have that child's best interests at heart? We are
saying that an adult who has reached the age of maturity cannot even think about moving down that line and then
having the benefit of the law by saying, ``I did not quite go over the line.'' In the old days, you had to prove intercourse.
We now say that a lot of sexual behaviour is assault. Do you not agree that is what we are doing here in this section?
Mr. Tousaw: I do not agree. I think that going down that road is, in effect, already criminal. If the age of consent is
14 or 16, it does not change that equation, in my respectful submission. It simply changes the number. The person will
still be able to go down that road; it is just that they cannot go down the road past a certain point. It does not prevent,
unfortunately, the unwelcome behaviour by adults. That behaviour will continue to exist.
Senator Andreychuk: Not under the age of 16.
Senator Baker: Mr. Beirness, you and the Canadian Centre for Substance Abuse have a vast amount of experience
in coordinating efforts with the police departments on the implementation of this legislation. You say that 2,427
officers have already been trained in the field sobriety tests that will now be imposed on drivers in Canada.
Six provinces in Canada have a provision in their highway traffic acts such that a police officer can stop a vehicle
with no ``articulable'' cause simply to investigate a violation of sections 253 to 258 of the Criminal Code — six
provinces, arbitrary detention, enshrined in law, highway traffic act, just to investigate impaired drivers. We also have
that federally with the RCMP and all the police forces doing periodic stops at roadside at Christmastime, New Year's,
What will be the key question to trigger all of this? Do you know the question the police officer will ask when
investigating drug-impaired driving? Right now, when the police officer comes to your car window, he is instructed to
ask for your driver's licence. If he detects the smell of alcohol, the first question the police officer has been instructed to
ask is, ``Have you been drinking tonight?'' What question will the police officer ask of someone they are investigating
for drug-impaired driving?
Mr. Beirness: That is an interesting question, and it will vary across the country in the different police forces.
If you are talking about the random stops that police do specifically at Christmastime, they are not simply looking
to detect the odour of alcohol. They are looking for signs and symptoms that seem unusual, symptoms associated with
your eyes, fumbling to get your licence out, anything at all. What they say depends on what they see in that first few
seconds of that interaction. Does the person seem coherent? Do they seem to be having difficulty in any way with
normal actions? Then they may ask if the person has had something to drink. They may not suspect that the person has
had any alcohol at all because they do not smell it or the person says no to that question. Then they may ask, ``Have
you had any drugs tonight?'' Certain drugs have a certain odour associated with them, most notably cannabis. The
odour of cannabis is quite detectable for many officers. They could proceed from there.
Senator Baker: You could be a senior citizen who uses hemp cream, which is perfectly legal.
I can tell you are knowledgeable by the very statements you made in reference to glossy eyes, flushed face, fumbling
with the driver's licence. The first question is, ``Have you had a drink tonight?'' By law, under our Criminal Code, if an
officer suspects that you have alcohol in our body, the officer will then subject you to the roadside test.
You know the question I am about to ask you. The officer says, ``Do you have any drugs in our body?'' The person
responds by saying, ``Yes, I am on prescription drugs, Celebrex. I have arthritis.'' The officer is now bound by law to
put that person through a test at roadside of whether or not they can stand on one foot.
Senator Stratton: No, no.
Senator Baker: Wait for the answer. He will agree with me.
Mr. Beirness: I do not believe they are bound by law to do that. They are looking for a suspicion. If they have a
suspicion that you have been using some substance —
Senator Baker: I just told them I am using it. That is the key issue.
Mr. Beirness: They will be looking for suspicion. Once they have suspicion, then they can go to the next step, which
is looking for reasonable and probable cause.
Senator Baker: No, the suspicion is founded upon the question, ``Do you have any alcohol in our body?'' and you
say yes. By law, as you know, that then requires the officer to take the next step. The officer is mandated. He has no
choice because, by law, he suspects. You just told him that you have alcohol in your body. When the question is asked,
``Do you have any drugs in your body?'' and the senior citizen says, ``Yes, I do,'' and it is one of the arthritis drugs
mentioned by Mr. Ben Amar, the person then by law has to do that test. Do you not see the logic of that?
Mr. Beirness: No, I disagree. I think the officer has a good deal of discretion on what he considers to be suspicion at
Senator Baker: Discretion. How could he have discretion, sir? I may have enough medication in my body to be drug
impaired. There is no discretion once he suspects you have drugs in your body.
Mr. Beirness: Once he has suspicion that you may have drugs in your body, then he is looking for other evidence to
go along with that. If he suspects that you are impaired by that drug, he will indeed go to the next step.
Senator Baker: The next step is the test at roadside. I have a copy of what that person will be asked to do. That
person will be asked to raise one of his or her feet and count out loud while looking at the raised foot for a period of
time that the officer tells you to do so.
Mr. Beirness: That is indeed one of the tests.
Senator Baker: It is now verified that it is one of the tests. I ask you, sir, can you do that?
Mr. Beirness: Certainly.
Senator Baker: I cannot. A great many people, including senior citizens, cannot do it. By law, then, the officer must
proceed to the next step; is that not correct?
Mr. Beirness: There is more than one test.
Senator Baker: Mr. Beirness, there are other tests, but the person has just failed that one. I will not read the next one
because the chair will cut me off.
My point is this: There is a principle in law that says better to have 10 guilty people go free than to convict an
Mr. Beirness: We have not convicted this person.
Senator Baker: We have not convicted them. Supposing the person cannot urinate in a bottle in front of someone.
You have convicted him. There are many ways a person is convicted if they cannot perform the tests. If you do it twice,
you automatically go to jail. Could the other two witnesses comment on what I have just said?
Mr. Ben Amar: You have raised very serious questions. I have been doing sobriety tests for almost 20 years and
testifying in court for the same period.
First, some people, not elderly people but those 25 or 30 years old, are not capable of performing two of those three
tests that involve equilibrium.
Second, some people are not naturally capable of doing these tests. It does not mean necessarily that they are under
the influence of alcohol or a drug.
Third, those three tests are standard tests for any type of drug, when in fact, as I mentioned in my presentation,
every drug has different effects on the body.
Ultimately, the procedure is that you have to show the person how to perform the tests. In some cases, the person
may not understand what he has to do, and then the evaluator considers that the person failed one of the tests when in
fact he did not understand what he had to do.
I think that if we introduce the sobriety tests, we have to videotape all the procedures in order to give the person the
right to defend himself or herself and challenge the protocol that was submitted to that person. I am extremely
concerned about that.
This aspect has also been challenged in the courts in the province of Quebec because the person does not have the
right to a lawyer. When do you give the person a right to call a lawyer — before or after? Sobriety tests in Quebec are
rarely used because constitutional matters are involved. Of course, it is very easy to do the roadside test for alcohol. It
is very reliable. If you fail the test it is because you are over 100 milligrams. You are then taken to the police station
where a more precise machine can provide an accurate result in many cases. However, in the case of drugs, this is not
available right now.
Another point is that some anti-depressant drugs cause drowsiness. Maybe 12 or 15 per cent of Canadians suffer
from depression. A drug called Remeron induces a lot of drowsiness. What will be done if the presence of that drug is
detected in the blood? Will a zero tolerance limit be applied? What limit will apply? With respect to drugs, we do not
have the tools to tell us that over such a limit the person is impaired and below the limit they are not impaired.
Finally, we do not have a reliable urine test on the road. An accurate test on the road is not available except for
alcohol. For example, urine tests can be positive for cannabis even though the person has consumed 30 days before. In
the case of drugs such as benzodiazepines or Valium, these tests can be positive when the person has not consumed the
drug for five, six or seven days. I find many gaps in the application of the sobriety tests and in the use of the
interpretation of the results for convicting a person.
Senator Stratton: This is rather important because I do not want seniors out there thinking they will all of a sudden
be charged because they cannot lift their leg.
Let us assume that a senior has taken drugs for health care reasons and is then stopped for driving erratically. The
officer detects that and asks him questions. What occurs if the senior admits that he is on drugs for therapeutic reasons
and the police officer is concerned? I would suggest that you check the testimony of last week. That person is then
taken to the hospital for examination by a medical doctor to ensure that he is okay.
The Chair: This is not a supplementary question, Senator Stratton.
Senator Stratton: This has nothing to do with hopping on a foot.
The Chair: This is a statement designed as a point of clarification.
Mr. Tousaw: I share some of those concerns. As I mentioned earlier, there is an error rate in these drug recognition
expert testings that can be significant.
The problem is this: If the police are quite good at the roadside of detecting drug impairment, as Mr. Beirness
pointed out, then we do not need the ability to draw blood, urine or saliva. We leave it in the hands of the police to
make that determination and either charge or issue a 24-hour prohibition, as they commonly do.
If they are not good at determining drug impairment or if there are significant error rates, and I think that there are,
then we have a problem that the test results may be used to bolster an incorrect assessment.
For example, many people in this country use marijuana, about 2,300 legally for medical reasons, some not legally
for medical reasons — and those estimates are anywhere from 400,000 and 1 million — and some for non-medical
reasons. Given the length of time it stays in your system, you could be stopped while driving, be subjected to some of
these tests and be unable to lift your leg, as an example. As a result, you could have your blood drawn and could test
positive for marijuana in your system. That positive test will be used to bolster the police's judgment on the side of the
road even though the positive test does not tell anything about whether the person was impaired during the time of
driving. It could have been a week earlier that they used cannabis. That is a significant problem.
In addition, in the case of the senior perhaps being taken to hospital after admitting to using a drug therapeutically,
for some drugs that may end up being the practical result, although I am not sure it is a result mandated by law.
However, for a drug like cannabis, which is used legally and medically by people in this country, including by seniors
for arthritis, my sense is that the police will have a different reaction than if one is taking a pharmaceutical substance,
and that will have a discriminatory impact on those medical users. There are a number of problems with the legislation.
Senator Milne: I have decided that I am really in trouble. Not only am I very arthritic and on Celebrex and I stagger
when I walk, I am also the reason hemp is a legal crop in Canada and I use hemp products all the time. I am really in
Mr. Beirness, you say that there are 214 officers now trained in this DEC method of roadside testing. Of those 214
certified drug recognition experts, 57 are now in the process of training. How long does this difficult training last?
Mr. Beirness: It is a two-week in-class training course followed by an examination, which is usually several weeks or
months later. They must complete 12 evaluations under a supervisor.
Senator Milne: Considering there are about 2,500 officers now trained across Canada in the standardized field
sobriety tests, how long will it take us to get up to 2,500 certified drug recognition experts across Canada and how will
they be distributed amongst our police forces?
Mr. Beirness: It will take a long time, several years, before we get enough drug recognition experts to cover the
country with individuals who can do this type of evaluation.
Senator Milne: No matter what the rush is to pass this particular law, nothing will happen in this field for quite some
Mr. Beirness: We already have those 214 who are working now.
Senator Milne: Based where?
Mr. Beirness: Most of them are in British Columbia. There are none in Quebec. There are a number in Nova Scotia
and some very active ones here in Ontario. They are all across the country, with the exception of Quebec.
Senator Milne: Mainly out in B.C.?
Mr. Beirness: A large proportion of them are in B.C.
Senator Milne: Mr. Tousaw, when it comes to actually forcing someone or suggesting strongly that someone give a
bodily fluid sample, what are your thoughts? Peeing in a bottle is one thing and a cheek swab is another. These are easy
to do, but if you actually have to give blood, this is an intrusive procedure or intrusive test. What are the chances of this
surviving a constitutional challenge?
Mr. Tousaw: While the urine test is less intrusive than the blood test, it does also represent a fairly significant
intrusion into personal privacy because, of course, the person must be monitored while providing the sample to ensure
that they are not providing a false sample or otherwise diluting it. It is a humiliating experience. It is not something
pleasant to go through.
I think the chance of a constitutional challenge is in the range of 100 per cent. The chance of success on a
constitutional challenge would be difficult to venture. In my view, the biggest ground of attack, besides the privacy
intrusions, is what is yielded at the end of the process? It is simply not information or evidence that supports the charge
of impairment. It is essentially legally irrelevant. I could test positive for cannabis metabolites in my system sitting here
today, which does not mean that I am impaired by cannabis as I sit here today. It simply means that at some point in
the prior 30 days I may have either consumed it directly or been exposed to second-hand smoke. That is a problem.
What do we have at the end of the process? We simply have evidence that someone had a drug metabolite in their
system. We do not have any evidence of impairment.
Senator Milne: Mr. Beirness has told us that the investigating officer must establish reasonable and probable
grounds of impairment of the ability to operate a vehicle safely before a demand for a bodily fluid sample is made. He
said that the police must first establish that the driver's ability was impaired. Does that give you any comfort?
Mr. Tousaw: Only a bit. Perhaps it is the cynicism borne of being a criminal defence attorney, but I have seen many
cases in which reasonable and probable grounds, at least the officer's belief of reasonable and probable grounds, tends
to wane under cross-examination or when all the facts come out. The problem is that for the upwards of 1 million-plus
Canadians who have used cannabis in the last 30 days, if they test positive, that will be used to then back-justify the
reasonable and probable grounds that the police officer said were in place.
If they are as accurate as they claim to be in informing a judgment about impairment on the front end, then I say
they do not need the test on the back end. They can go into court, as they do now, and testify that they stopped the
person. They noted that the person was driving erratically, reeked of marijuana or exhibited shakiness of the hands or
fumbling with the wallet. They observed as well that the person was unable to complete the various physical roadside
sobriety tests. Therefore, either the 24-hour prohibition was put into place or the person was charged with impairment,
and the court of law will determine whether there was sufficient evidence to justify a conviction. There is no need for
the invasive procedure of going and forcing them — and it is ``forcing'' because you are under threat of criminal
sanction for refusing — to give blood or urine or saliva.
Mr. Ben Amar: I agree in this aspect because the police ultimately have many tools to prove to the judge that the
person was driving under the influence of alcohol or drugs. Therefore, I think it is fair to present this evidence. The
judge, upon the balance of probabilities and proof, will consider if the person was under the influence of a drug or
If you would allow me, I wish to comment about the third point of my presentation, the alcohol tests. I find difficult
the notion of restrictions to ``proof to the contrary'' for the following reason: It is extremely difficult in court to show
what went wrong when the Breathalyzer test is administered. Even when a technician has a controlled test that is
perfect and a blank test that is perfect and sees a discrepancy between the first and the second result, he is sometimes
not able to say what went wrong. If this bill is accepted as is, the different perspectives for an accused will be extremely
I will give you a second and last example. It is possible that the person who is tested at the police station will show a
result that is over the legal limit of 80 milligrams. Let us take the example that the result is 90 milligrams in the first test
and 85 milligrams in the second test. If the person has just finished the drink, we say that this individual is in the
absorption phase and some of the alcohol did not have time to reach the blood. Therefore, there is a possibility that the
level of alcohol was below the legal limit when the person was driving. This has been presented in many cases in front
of court. If the judge finds this defence credible, then he will consider it.
I find it very restrictive and without reason to change the actual procedure concerning what is called ``proof to the
Senator Milne: This is your chance to rebut, Mr. Beirness.
Mr. Beirness: I would like to make it very clear that this legislation and the process that the police go through in
determining whether a person has committed the offence of drug-impaired driving is not a process to look for drug
users. This is a process that involves road safety. They are looking at trying to remove from the roads drivers who are
impaired. They are not out there doing random drug tests; they are looking for impaired drivers.
Someone who is driving erratically, driving slowly even or someone who stands out in the traffic for whatever reason
may very well be stopped. The job of the officer is to determine why and what is wrong. It could be alcohol; it could be
drugs. It is a process whereby they systematically gather evidence. The evidence does not start with a drug test; it ends
with a drug test.
First, the police develop a suspicion; then they get the reasonable and probable grounds of impairment; then they do
the drug evaluation and classification test, which is a very in-depth examination of all sorts of signs and symptoms
associated with drug use. Only then does an officer come to an opinion as to whether or not that person is, first,
impaired, and,second, possibly under the influence of a given category of drug. At that point, the person will be asked
to provide a sample of bodily fluid. Ideally, it should be blood. We are not using blood in this country at this time. We
are primarily using urine. Eventually, we may be able to use oral fluid, which is less intrusive. We are not quite there
yet, but soon we will be, I hope. Then, and only then, do we have evidence that the person was impaired and, secondly,
that this impairment was caused by drug use. Then the person is charged. It must be verified by the toxicological
examination of that bodily fluid sample.
We are not out there looking for drug users. People who have been smoking marijuana or have been in the presence
of someone smoking marijuana will not be randomly tested and charged with impaired driving. They must show
evidence of impairment first and foremost. That is what the officer is concerned with.
Senator Milne: How will that work with respect to the standard roadside spot checks at Christmas, anywhere or at
Mr. Beirness: To date, it has not been an issue because they are not doing it. They are looking primarily for alcohol.
We have not gotten to the point where, systematically, there are officers trained in drug recognition techniques doing
those types of spot checks. We do not have enough of them.
Senator Di Nino: Let me pick up on that for a moment. Sergeant Martin testified before this committee. He is a
training facilitator for the RCMP. He spent 31 years as a policeman for York Region, and so on. He is the guy in
charge of this. He described a very though process of training that he described as being international in the sense that
they cooperate with the Americans and, I think, the Mexicans. My memory is faulty, so I may be wrong.
He described a thorough training and education process to train the men and women who will be looking for these
problems. He was very eloquent. He said, as have you, that the police are not looking for drug addicts. If there is
reasonable belief on the part of the officer that someone is impaired, regardless of why they are impaired, their job is to
get that person off the road. Furthermore, to be able to decide whether they are impaired or not, a number of things
must happen. He said that the drug issue would be the last to be considered after seeing the driving behaviour, et
I add in parentheses that at four different times in the last seven or eight years, I have spent New Year's Eve on the
road with two police forces, the Toronto Police Service and the York Regional Police. We did RIDE programs twice
each night, which gave me a wonderful opportunity to see for myself how these officers respond. From my personal
experience, they are extremely well trained.
My comment to you is that police officers go through thorough and extensive training to be able to handle these
issues. I would like you to verify that, if possible.
Once again, I wish to stress the point, as I think you said, that this is not about looking for drug addicts or users.
This is about looking for people who demonstrate, through their behaviour, whether it is in the automobile or once
they are out of the automobile, that they appear to be impaired; is that correct?
Mr. Beirness: That is indeed correct. It is a rigorous training course. There are officers who go through the training
course and at the end of the two weeks decide it is too much for them. They do not want to do this because it is too
rigorous. It takes too much of their effort to do that. It is not that they want to do.
To reiterate, they are looking for impaired drivers; they are not looking for drug users.
Senator Di Nino: Someone just gave me the testimony by Sergeant Martin, but I will not read it.
The Chair: It is already on the record.
Senator Di Nino: For those who may not have been here, please read that testimony. You will then have a better
understanding of how rigorous the training is.
Senator Milne: Is this part of repeating the testimony?
The Chair: No, Senator Di Nino said he would not repeat it.
Senator Di Nino: I said that it is on the record if you want to read it.
Mr. Tousaw, you made some pretty strong comments opposing the age of consent changes proposed in Bill C-2.
Earlier, we heard from Staff Sergeant Frizell from the RCMP and Detective Sergeant Scanlan from the Toronto Police
Service. In case you were not here, I would like you to read a couple of things they said. Detective Sergeant Scanlan
talked about the chatrooms and she says:
. . . Canada's low age of consent is openly discussed in peer-to-peer chatrooms by sexual predators. Canada has
been identified as a sex tourism destination.
Data that they presented to the committee in the other place said that:
Fourteen- and 15-year-olds represent the largest proportion of all reported sexual assaults, and that is for all ages.
The next most significant age group represented was 13-year-olds.
As well, she said:
Fourteen- and 15-year-olds represent the largest age group for reported missing persons.
This is an issue that I think screams for a solution.
Staff Sergeant Frizell, talking about the National Child Exploitation Coordination Centre, stated that they regularly
consult with community members, border officers, social and medical workers, police investigators, et cetera. Based on
the consultation, he said that:
. . . raising the age of protection for sexual activity has frequently been identified as a desirable legislative
Finally, he says —
The Chair: You are now reading the testimony.
Senator Di Nino: Except, I think that Mr. Tousaw was not here. It is important to put this testimony on the record.
Staff Sergeant Frizell believes that:
. . . the current age of protection of 14 is a significant detriment to our efforts to protect children, especially 14-
and 15-year-olds . . . .
Here, he was speaking on behalf of his organization. Both he and Detective Sergeant Scanlan said that it is a
preventative measure probably more than anything else.
I am obviously convinced that these people who work with children on a regular basis — and, as the chair and
others have said, a very difficult task — have said that we need this bill to help us so that we can help these children.
What is your comment on that?
Mr. Tousaw: I certainly respect the work that they are doing and I think it is important work. However, by virtue of
doing that work, the officers become exposed to a certain category of persons. I think that the exposure over a period
of time to people engaged in criminal sexual exploitation tends to colour one's view of just how much is occurring, as
well as what the other impacts of the legislation may or may not be.
In other words, it does not surprise me that people who spend most of their day dealing with some of the worst
criminal sexual offenders and behaviours that we can think of seek more and more tools to combat that behaviour. I
think that is perfectly normal. However, I would caution against placing undue weight on the experiences of those
persons, precisely because they are so absorbed in the issue.
Groups like Egale and others have expressed significant concern about raising the age of sexual consent on sexual
minorities. Youths have expressed that kind of concern. It is a significant restriction on youth sexual freedom. That is
something that we must be alive to.
No one would oppose raising the age of sexual concept because they want to make it easier for criminals or make it
harder for police to prosecute criminals them. That is not the source of the opposition. With respect to criminal law,
there are often externalities associated with changes in the law that we do not necessarily take into account on the front
end. I am urging this committee to take those things into account now rather than after the legislation is passed, when
some of these effects begin to be felt, particularly among sexual minorities in this country.
Senator Di Nino: Surely you are not suggesting that experience does not count. They are talking about the
perpetrators of these crimes. The whole community does not try to commit these kinds of crimes. They are talking
about that small group, although I think Senator Milne suggested that 50,000 predators on the Internet is not such a
small group. I suggest to you, sir, that because they understand the issue and see it every day, their opinion is not
clouded in the wrong way but in a fair manner to be able to identify the problem and suggest solutions.
Mr. Tousaw: Certainly, I do not mean to suggest that people with experience in the area should be disregarded —
quite the opposite. Their opinions should be given great respect. However, when you are absorbed in an issue and you
deal with essentially the worst situations all the time, every day, as human beings it is difficult not to let that alter our
perceptions of what is going on in the world. Unfortunately, police officers are in a difficult position when they are
asked to testify about legislation because they are immersed in dealing with offenders, and the very worst offenders. It
colours the perception. I am not saying that the perception should be disregarded, but we must understand that there
are other consequences of a change in legislation in this area.
I might add that what I did not necessarily hear in the portions of the presentations that I listened to was any
empirical proof — not feelings — that the tools we already provide to the police are lacking and that they somehow
need these additional tools and these provisions to do their job more effectively. I believe Staff Sergeant Frizell said
that the studies on this issue were not there.
Senator Di Nino: He provided many statistics.
The comment you made about those involved every day in a particular endeavour could apply to defence counsel or
to all of us, as a matter of fact.
Mr. Tousaw: That is a fair point.
Senator Cowan: To pick up on that last point, I do not know whether you were here when Chief Mackenzie was
giving his evidence. He and I had a discussion in the course of his presentation. He said that their organization of police
chiefs supports the mandatory minimums and the reverse onus. I will quote a portion of what he said:
. . . because we believe the judiciary's current sentencing and bail practices are not adequately protecting the
I asked him whether it is a problem with the substantive provisions of the law or is it the way in which the system is
interpreting the law. His evidence speaks for itself on that matter.
I would like your views on that because you are on the other side of the fence. From your vantage point and
experience, are you suggesting that we might be overreacting to the horrific examples that have been detailed to this
committee and to other committees and that we read about in the press? Is it a problem with the law or is it a problem
with individual cases where some of us might say that such an offender should not be allowed to get away it or should
not be able to walk out after only a year? Is it a knee-jerk reaction? Some might argue that a knee-jerk reaction would
be to take away the discretion and make a specific time mandatory, whether two years, four years or something else. Is
the problem rooted in the provisions of the Criminal Code as they exist? Is anything more needed to deal effectively
with the situations that, unfortunately, we find in our society on an everyday basis?
Mr. Tousaw: No, I do not think that tools are lacking in the law. In fact, I would go a step further and suggest that
with respect to the imposition of what the public or others perceive to be unfit sentences, there is not a problem in our
society with that. A few cases each year gain significant notoriety in the press precisely because they are uncommon,
about which we might say individually that the violent offender should have been locked up longer. Undoubtedly,
there are situations in which the offender should have been locked up longer, but those cases are few, far between and
In the vast majority of sentences imposed, a judge appropriately applies the facts to the law and arrives at a just and
fit sentence, as we give him or her the discretion to do and we trust them to do because that is the role of a sentencing
judge. The problem is that the odd case is reported on the front pages of the paper whereby a sentence is seen to be
unfit. You do not see the headline in a paper very often, ``Violent offender sentenced to appropriate length of
imprisonment'' because that simply does not sell papers.
Senator Cowan: The same can be said for the words ``inappropriately long sentence.''
Mr. Tousaw: Yes, the use of such words in a headline does not sell papers either. No one is interested in reading
about that so there is a perception of a problem that is not justified by the empirical evidence and the realities that go
on every day in the court system. Legislation should not be crafted to fix problems that exist only in perception. That is
especially true in the area of criminal law, where we employ the state's most coercive tools — prosecution,
incarceration and criminal sanction — on the citizenry. That area is too important for perceived problems to be the
basis of legislation.
The Chair: Mr. Beirness, I would like to come back to the issues surrounding impaired driving. You made it
depressingly plain that we are a long way from having the kind of capacity for drug-impaired driving that the we have
had for quite a long time for alcohol-impaired driving. You said that we are several years away from an accurate,
reliable roadside machine for such detections. I gather we are also several years away from having much guidance on
what level of which drug constitutes the level of impairment, which we have a firm fix on in respect of alcohol. How
long do you think it will take us to get there for both of those things?
Mr. Beirness: Do you mean to reach the capacity of DRE officers in this country?
The Chair: No. You spoke eloquently to the need to beef up our ability to assess impairment and the DRE officers.
However, I am talking about the equipment, as distinct from judgment and experience, and the scientific data on the
levels of different drugs in a person's bloodstream or urine that are a valid and reliable indication of impairment.
Mr. Beirness: First, in terms of the roadside ``drugalizer'' test, I think we are four or five years away from something
that will be valid and reliable to provide consistent results. That is not to say that such tests are not being used because
there are devices out there. The Australians are doing random roadside drug testing now. They rely on two separate
oral fluid samples. The first one is to get the first indication and the second one is to confirm it. I do not think we are
ready to go there yet, and I would prefer that we did not go there yet. At present, the Australians are looking only at
cannabis and amphetamines, which are only two of several possible drugs that can impair the ability to operate a
vehicle. There are hundreds of drugs that can cause impairment.
As to the second question about when we might have reliable levels of drugs equated with impairment similar to
what we have with alcohol now, quite frankly, I do not think we will ever be there for every available drug. We are not
going to get there. There are simply far too many drugs out there, some of which we do not see often on the road let
alone in people who come to our attention for any reason. Certainly, with respect to some of the major drugs such as
cannabis, within the next few years we might begin to agree on a level. Studies are ongoing, particularly in Europe, to
establish a level. What we are really interested in, though, is impairment. As long as we are testing impairment and
getting good evidence of impairment, then we are okay for now.
The Chair: Some things can cause impairment, notably fatigue, that are not captured in the Criminal Code, nor
should they be. If I am stopped because I am driving when I am more tired than I thought I was and I am incapable of
standing on one foot for however long I am required to stand on one foot, then they take me away. This is something
that the ability to do diminishes with age; you have to practice standing on one foot. It so happens that I ingested a
little bit of marijuana a week ago and they find a trace of it in my blood; there I am, convicted of a criminal offence. We
had one witness who said in all seriousness that since any possession of this drug was illegal, even the tiniest amount
would suffice for him.
Mr. Beirness: That is why I stress that this is about impairment, impaired driving.
The Chair: We have established that I am impaired because I am tired, not because I am stoned.
Mr. Beirness: You have given evidence that there may be something wrong. If you go through the entire 12-step
DRE procedure, chances are you would not test positive for marijuana based on the officer's judgment of all the other
things that they look at during that examination. The one-leg stand is one piece of the evidence that they are collecting.
The Chair: It is just a very a graphic one.
Mr. Beirness: You are right and it is something we can all relate to, but all the symptoms that would be normally
present with someone impaired by marijuana would simply not be there. He would not see the fluttering eyelids or the
large pupils or the rebound in the pupil size when he shines a light in your eyes. They would not be there simply
because you were not impaired by the marijuana that you claim would be in our system.
The Chair: I will tell you that when I am tired, my eyelids do flutter. I do not know if my pupils dilate, but my eyelids
Senator Andreychuk: I think that was a good point: Do not drive if you are that tired.
We are being deflected by the testing. We went through that with the issue of alcohol impairment. You had to walk
the fine line, and then defence counsel proved that some people cannot walk foot after foot, left and right, on a straight
line, and we suddenly had many cases thrown out of court because they did not comply. Good defence counsel did
their jobs adequately. Nonetheless, through all that time, the issue was that we wanted to get people off the road. We
wanted to have responsible drivers, and we used the Criminal Code. We have used the provincial legislation, as Senator
Baker pointed out, because the consequences — the death toll — are so horrific for people who are legitimately driving
on the road or to pedestrians.
Mr. Ben Amar, did I understand you to say that you think that the Breathalyzer is a problem today? We have put
protocols in place. The machines are tested. Every time defence counsel brought up some legitimate inadequacy, the
case was thrown out and there had to be a response from the prosecution and the police. We finally got to the point
where we test the machines and follow a check list. As human beings, we are reasonably certain that if all of the
prerequisites are followed, chances are that the Breathalyzer works. You saying it does not. No one else has said that,
nor is that the experience in all the literature. It is not 100 per cent perfect, but it has certainly come a long way. We
have not gone that far with drugs. You pointed out alcohol, so I was curious.
Mr. Ben Amar: All of the Breathalyzers used in Canada today are reliable. In 86 per cent of the cases, they favour
the accused because if you do a simultaneous blood test, the result of the blood test will be higher. What concerns me
are the restrictions to what we call ``proof to the contrary.'' Until now, an accused could call an expert witness to testify
that because he drank a few drinks just before driving his car, he was in the absorption phase and therefore the level of
alcohol was below the legal limit at the moment he was driving.
When a technician comes to court, we see that the standard alcohol control test was done properly and all the
procedures were done properly, but in some cases there is a discrepancy between the first and the second result. Today,
when there is more than 20 milligrams difference between the first and second one, you have to do a third test. When
the third test is done, even if we see that the control test went well, the technician is not able to determine what went
My concern is not saying that we do not have accurate machines. They are excellent machines. However, in some
cases we have to provide an opportunity for the accused to bring forward scientific evidence challenging the results
based on physiological reasons or something else.
We should not forget that the machines used today in Canada and worldwide are all calibrated at the same level.
They multiply by a ratio of 2,100 the level of alcohol in the breath to ascertain the level of alcohol in the blood. Major
experts — and Professor Kurt Dubowski of the United States is probably the leading expert in the world — have
determined that this ratio can vary from 1,100 to 3,200. Therefore, in some cases the machine does not properly apply
the ratio between alcohol in the breath and alcohol in the blood. In 14 percent of the cases, the person is not favoured
by the breath test.
Those are some limitations. I am not referring to the majority of cases, but in some cases there is a possibility of
bringing evidence to the contrary that would not be acceptable if we change this definition of ``proof to the contrary.''
Senator Andreychuk: I would take it that Bill C-2 is attempting to get those with alcohol off the road, those with an
impairment, and stop certain defences, the two-beer test. You are saying that there may be some validity to that
Mr. Ben Amar: That is correct.
Senator Baker: Or, of course, the temperature in the room could be off when the test is being done, which would
nullify the accuracy of the test; or the solution was not changed on time; or the person was unable to blow for 10 or 12
seconds into the machine at a steady rate and subsequently convicted.
Having listened to all of your testimony, I believe you are saying that if the present provisions of the Criminal Code
are removed or taken out, as is being suggested, then the person who knows they are innocent cannot take the
extraordinary step, for example, of getting a blood test done to prove that they are not impaired. When removing
evidence to the contrary of the presumption that the blood alcohol level was at a certain level, you remove all the
Mr. Ben Amar: Yes. I agree with your statement, senator.
Senator Baker: When I was cross-examining Mr. Beirness, I did not want to leave the wrong impression. I have great
respect for this gentleman and for the work that both he and his centre do. They do credible work.
Mr. Beirness, you are correct when you say that the issue is impairment and that various indicia of impairment
contribute to a police officer arriving at a conclusion that there are reasonable grounds to believe that a person is
impaired. The very indicia of impairment to which you refer, which are part of this entire process, are present in certain
people anyway, especially elderly people. What are the major indicia? Watery eyes, flushed face, fumbling with driving
documents, a bit of slurred speech, being unstable on their feet. You have there the six indicia of impairment. I have
read thousands of judgments relating to impairment over the past 30 years, and those are the standard indicia.
The problem occurs with a senior citizen who is in the circumstance of exhibiting all those indicia — especially if you
do not personally know the person — including slurred speech, being unable to stand on one foot and to walk the
straight line. As Senator Andreychuk said, we threw that test out 30 years ago. Guess what? They are bringing it back
with this amendment in the bill. That is another test at roadside. The possibility exists that a senior citizen on
medication, who may not be impaired at all but who has all the indicia and cannot perform that final function of
urinating in a bottle in front of someone and cannot stand on their one foot for 20 seconds, could be convicted of an
Do you see my point? All the indicia that are present for alcohol impairment make sense — there is no doubt about
that. However, when you are into an area where there is no smell on your breath, no alcohol in your system and
everything else is so hazy, the indicia could add up to prosecuting an innocent person who is not impaired at all.
Senator Andreychuk: Or to a person who is impaired and kills someone on the road.
Senator Baker: That was not my question, though. Mr. Beirness will address my question, I am sure.
Mr. Beirness: The key factor is that all the indicia that the officer observes and notes on the form on which he writes
all this stuff down must match the drug that comes up in the toxicology test.
If the person has all those things that you said — which, by the way, are signs and symptoms of alcohol but not
necessarily all drugs or not necessarily any particular drug —
Senator Baker: They are the signs of impairment.
The Chair: Senator Baker, let him answer.
Mr. Beirness: The watery eyes and the flushed face are signs of alcohol, not necessarily all other drugs.
Senator Baker: Not necessarily, but possibly.
Mr. Beirness: Some possibly, yes.
However, there are other symptoms that they are looking for in the course of a drug recognition expert examination.
There is a series of 12 tests that they are going through. All the signs and symptoms that they see in the course of that
examination lead them to believe that the person is impaired by drug X, this category of drugs. That drug must come
up in the toxicological fluid sample collected by the DRE. If it does not, then they have no case.
Senator Baker: But he does not collect the fluid sample.
Mr. Beirness: Eventually he will get one.
Senator Baker: But the person cannot do it.
Mr. Beirness: There is a lot of case law.
Senator Baker: Also, the officer has not seen him or her drive. They have not witnessed the person driving because it
is a regulated, legal stop at roadside. It is done all the time throughout Canada.
Mr. Beirness: You are correct. It is done all the time throughout Canada. They are looking primarily for alcohol.
They will look primarily for alcohol in the years to come as well. There may be occasions in the course of that quick
investigation at the side of the road where they may find some evidence suggesting that something other than alcohol is
involved. At this point, I do not believe they are doing that. There are very few officers available to do that. I do not
think that is a problem.
All the cases that we have on record now are from observations of driving.
Senator Baker: You know that the DRE test was recently struck down by one superior court. Are you aware of that?
Mr. Beirness: A DRE case was struck down in Alberta last year. It has gone to appeal and will be retried.
The Chair: In case anyone watching on television is in any doubt, I should make it clear that no one around this
table thinks people should be driving while they are stoned. All we are attempting to do is to understand, as best we
can, the implications of the bill before us. No one here is standing up for impaired drivers, except to the extent that
they have legal and constitutional rights. Drug-impaired driving is as bad as drunk driving, if not worse.
Senator Stratton: I would refer you again to statistics from the Canadian Centre for Justice Statistics, slide 11, just
below the first bullet of four. This is actually quite interesting:
The rate of impaired driving offences dropped 68 per cent between 1981 and 2006.
We are doing something right through education and roadside testing. I straightened up when I saw that they will do
roadside testing. You change your attitude dramatically when you see that. We are doing something right in relation to
the problem of alcohol.
I have asked this question before, but if we are doing something right in that regard and we are embarking down
that road for drugs and drug testing, then we will go through the same kind of thing as we have done with alcohol, will
we not? I view that as an evolutionary process.
With respect to alcohol, we want to get rid of the two-beer plea. Prosecutors in the United States cannot believe that
Canada has such a plea. I suggest to you that we are starting down this road with drugs, are we not? It will be an
evolutionary process over time, but we need to do it. Do you agree?
Mr. Beirness: Yes.
Senator Stratton: Thank you. That is all I want.
The Chair: Gentlemen, thank you all very much indeed. It has been another fascinating session. It is amazing how
much there is to learn. There is an unending amount of things we need to learn.
Our next meeting will be at 10 a.m. tomorrow morning, at which time we shall proceed to clause-by-clause
consideration of Bill C-2.