Alistair speaks on changes to drug-impaired driving rules

Mr. Alistair MacGregor (Cowichan—Malahat—Langford, NDP):   Madam Speaker, I would like to thank the Minister of Justice for introducing this bill in conjunction with Bill C-45, the cannabis act.

     It is good that this bill was brought forward for debate in the House before Bill C-45, as robust laws against drug-impaired driving should be well in place before legislation occurs. The last thing we need with the legalization of cannabis is for people to start using the drug, thinking it is safe to drive a motor vehicle. In conjunction with this bill, a clear message needs to be sent to Canadians on the dangers of impaired driving.

 

     In 2015, police reported 72,039 impaired driving incidents, representing a rate of 201 incidents per 100,000 of population. This is the lowest rate since data was collected on impaired driving in 1986. It represents a 65% drop, and 4% lower than what was reported in 2014.

 

    In the same year, police reported 122 incidents causing death and 596 incidents causing bodily harm. That compares to 1986, when there were 196 and 1,581 of these incidents respectively. When the size of the population in those years is taken into consideration, these figures correspond to rate decreases of 55% and 73% respectively.

 

    Over the past 30 years, all provinces have seen substantial decreases in their impaired driving rates. This is a good thing. However, it should be known that impaired driving is still one of the leading causes of criminal death in Canada. With one of the worst impaired driving records in the OECD, we certainly need a public awareness campaign that is effective and well-funded.

 

    When this bill receives royal assent, part 1 will come into force immediately. It makes amendments to the current sections of the Criminal Code, from section 253 through to section 259, mostly to update them for drug-impaired driving. Drug-impaired driving has been a criminal offence since 1925, but in the wake of big changes coming to our drug laws, we they are in sore need of an update.

 

    We need to keep drivers off the roads if they are impaired by drug use. We need to ensure that the drivers being stopped are actually impaired. The proposed plans are to use roadside oral screeners that are approved by the drugs and driving committee. These screener purport to be able to check THC in the body, which may or may not be directly connected to impairment.

 

     Police officers could only demand that someone be subjected to these tests if they had a reasonable suspicion to believe the driver was impaired. This could be due to the driver weaving or swerving on the road. The driver might exhibit symptoms such as red eyes or smell strongly of marijuana.

 

    The test takes about 10 minutes to administer and will give a reading of whether THC, the active ingredient in marijuana, is in the body. The bill does not have clear limits on how much marijuana in saliva qualifies as impairment. It is very important we have a science-backed initiative that stops impaired drivers in their tracks.

 

    The government has offered some recommendations for new penalties for the amounts of THC in the body. The first offence is a summary conviction for drivers with low levels of drugs in their body. The current proposed limit, which will be set by regulation, would be two nanograms of THC. The second offence for higher amounts would come in with a per se limit of five nanograms. The third offence would be for having high levels of drugs and alcohol in the body.

 

     It is clear that drivers who test positive for both agents have greater odds of making an error than drivers positive for either alcohol or cannabis alone.

 

    Part 2 of the bill will come into force 180 days after it receives royal assent, and it will completely rewrite the Criminal Code on impaired driving and include updates to drug-impaired driving that I just mentioned. Part 1, would amend the existing sections of the Code to provide for a transition period for provincial governments and police services. However, after 180 days, part 2 would effectively repeal everything from section 249 to section 261 and add an entirely new series of sections after section 320.1. Of note, there are significant changes to the penalties for impaired driving.

 

    The penalty for dangerous driving causing death will be increased to life imprisonment, which is up from the current 14 year penalty. Strong penalties are imperative when it comes to impaired driving, because the taking of someone's life while driving impaired is the result of a conscious decision and it must be treated with the same severity as a homicide.

 

    Our approach in the NDP has not just been about more penalties for this offence. We want to seek ways to educate and deter the behaviour in the first place. For that reason, we will be looking for the government to take the lead on a public awareness campaign that promotes deterrence before anyone gets behind the wheel. The statistics show that a decline has been occurring in alcohol-related incidents, so this has been working in previous efforts.

 

    One of the major changes to this legislation comes from the removal of the need for reasonable suspicion to administer an approved screening device.

 

     Currently, the police need reasonable grounds for suspicion to demand a breath sample, as per subsection 254(2). Police can develop a reasonable suspicion by seeing a car swerving, by the smell on a driver, or if a driver has admitted to having drink or has slurred speech. These allow the police to form a reasonable suspicion to demand a breath sample. It is currently a very important part of our laws. The section to be amended does have some constitutional considerations.

 

    The government has stated that an estimated 50% of people who are stopped and are over the legal limit are able to pass through current detection methods. It is indeed one of the reasons it has given for removing the need to have reasonable suspicion to check for a breath sample.

 

    Many civil liberties groups have raised concerns about this change. They are concerned that certain visible minority groups could be disproportionately targeted, and concerns about this are justified. We need look no further than the experience of police street checks in Toronto, known as carding. While black residents in Toronto made up just 8.3% of the population, they accounted for 25% of the cards the police wrote from 2008 to mid-2011.

 

    What would happen if we applied these statistics to random breath tests? Say that visible minorities made up 8.3% of the driving population that was pulled over in a lawful traffic stop, but they accounted for 25% of the demanded breath samples by police. This underlines some of the dangers we can face when we allow police to have that discretionary power, and it is a point that needs to be examined in detail.

 

    Random and mandatory breath tests for alcohol screening could be challenged under section 8 of the Charter of Rights and Freedoms, which provides the right to be secure against unreasonable search or seizure. It could also be challenged under section 9, which is the right not to be arbitrarily detained or imprisoned.

 

    The government has assured the House that the invasion of privacy would be minimal in the case of a roadside test in which police officers already have the right to demand several types of information from drivers. The Department of Justice has said:

 

     The information revealed from a breath sample is, like the production of a drivers licence, simply information about whether a driver is complying with one of the conditions imposed in the highly regulated context of driving.

 

    Warrantless roadside breathalyzer tests raise constitutional concerns. They can only be saved by section 1 of the charter by weighing the infringement against the public good served by fighting drunk driving and by the officer's assurance that he or she has reasonable grounds to suspect a crime has occurred. Many in the legal community have noted that if the law is changed to remove this constitutional safeguard, the reasonable grounds for suspicion, then it can no longer be saved by section 1.

 

     Section 1 provides for reasonable limits to the rights in the charter only if they can be demonstrably justified in a free and democratic society.

 

    For a section 1 analysis, the Oakes case of the Supreme Court provides a good backdrop. It states that the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. The means, even if rationally connected to the objective in this first sense, should impair as little as possible the right or freedom in question.

 

    In the Ladouceur decision, the Supreme Court wrestled with the issue of random stops of civilian vehicles by police. The minority opinion stated there were serious implications with such a power. It stated that the decision of a police officer may be based on any whim, that some may tend to stop younger drivers, older cars, and so on, and racial considerations could be a factor. It is indeed a thorny issue and it is not easily settled after a few hours of debate.

 

    One of the great constitutional experts of Canada, Professor Peter Hogg, has mentioned in the past that random breath testing would infringe charter rights, but the benefit of public safety from reducing crashes and deaths would be so strong that it would be upheld in court. It would, in other words, be a reasonable limit on constitutional rights and freedoms. He wrote at the time, “The invasion of the driver's privacy is minor and transitory and not much different from existing obligations to provide evidence of licensing, ownership, and insurance.”

 

    It should be noted that Professor Hogg was referring to random stops, such as a checkpoint. This is a scenario where every driver passing through is subject to random breath testing, so there is no room for discriminatory practice. With the way Bill C-46 is written, it would allow for a police officer to have all of the control in deciding when to pull out an approved testing device that is on his or her person and make a demand for a breath sample.

 

    The British Columbia Civil Liberties Association has said in the past about mandatory breath testing, “Giving police power to act on a whim is not something we want in an open democratic society.”

 

    A former Liberal health minister stated in the past, “We want to make sure that areas are not unnecessarily excessively focused on and that's why I think that we need to make sure that the legislation is properly drafted with appropriate constraints and guidelines for the police.”

 

    We need to bring civil liberties experts to the justice committee so that we can study this in-depth. Canadians have rights and freedoms that need to be protected, so to take them away must be met with the utmost scrutiny. I do look forward to getting this legislation to committee to do just that.

 

    We also need Canadians to be aware that drug-impaired driving is a dangerous act and is illegal. This campaign must increase the knowledge that there is a range of health, social, and legal consequences. Drug-impaired drivers are a danger to themselves and to others on the road. The use of cannabis before driving can cause slower reaction times, which increase the risk of being involved in a crash that could result in injury or death. Attempts to compensate may be at the expense of vehicle control, including reaction time, reflecting deficits in the ability to allocate attention. Social strategies need to be developed, like designated driver programs when there may be alcohol or cannabis present.

 

    The incidence of driving after cannabis use, particularly among young Canadians, may be attributable in part to the fact that they do not necessarily perceive their driving ability to be adversely affected. After alcohol, cannabis is one of the most commonly detected substances among drivers arrested for impaired driving. We have to create a culture that does not accept the use of cannabis and the operation of a motor vehicle.

 

    Impaired driving is one of the most litigated sections of the Criminal Code. This stress on our justice system needs to be seen in the context of the Jordan decision. One of the benefits of removing the criminalization of cannabis eventually when we get to it is that judges and the justice system would have more time to deal with more serious offences.

 

    It is unfortunate that the Liberals have refused to move on decriminalization of marijuana as an interim measure, because we believe the current laws unfairly target youth and racialize Canadians for simple possession.

 

    There is a crisis in our justice system as we speak. The government is trying to move ahead, but we believe that this interim measure could have been a very effective one. We certainly need to see more crown prosecutors, judges, more courtrooms and support staff to run an effective justice system that Canadians can have confidence in.

 

    I want to talk a bit about the difficulty in checking for impairment, because when it comes to checking for impairment from cannabis, it looks like there is still a lot of work to be done.

 

    The detection and assessment of cannabis use among drivers is considerably more complex than for alcohol, and we do not want to be arresting people who are not actually impaired. There are drug recognition experts in Canada that undergo training to ensure they can see impairment. Unfortunately, we only have about 600 of these officers, and we will probably need at least 2,000 new trained officers to meet the demand to combat this problem. It is unclear how much THC it takes to impair a driver, according to the Canadian Centre on Substance Use and Addiction.

 

    The Canadian Bar Association's official periodical, CBA National, published an article last month titled “Will the new roadside testing rules pass a Charter challenge?” The article noted that the science behind saliva tests for THC remains far from perfect and that Canadians may be subjected to questionable scientific schemes and subjective police arbiters on impairment, which will put their liberty at stake.

 

    Peak levels of THC depend on how it enters the body. It is different for when a person ingests it or inhales it, so these can mean varying times on when a person is impaired and how long it lasts.

 

    There is also the question of people who smoke marijuana maybe once a week or once a month versus habitual users who may have the THC stay in their body for far longer. In other words, regular users of marijuana are continually drug affected, so the regular users of marijuana must realize that THC is generally more detectable in their systems than in the bodies of periodic or episodic users of marijuana.

 

    The Criminal Defence Lawyers Association of Manitoba has stated that the saliva test does not really tell us a lot, because the effects of marijuana can stay in the system for up to 30 days, which is far longer than alcohol.

 

    This legislation measures marijuana by using nanograms in the blood, which is an imperfect measure because users metabolize the drug differently. One person may be substantially impaired after a relatively small amount of marijuana, while someone else may be only moderately impaired after the same dose. The Canadian Medical Association has states, “A clear and reliable process for identifying, testing and imposing consequences on individuals who use marijuana and drive absolutely needs to be in place nationally prior to legalization.”

 

    The national coordinator of the DRE program in the RCMP has stated that toxicology tests indicate that a drug has been consumed, but unlike a breathalyzer, they do not indicate how long ago the drug was consumed. The devices are also very expensive, so we want to ensure that they do what we need them to do. There is also the cost. It has been reported that the saliva tests can cost between $20 and $40, compared to the few cents a breathalyzer test costs. Obviously, in rolling out this legislation, the government is going to have to budget adequate resources not only for officers but also for sampling devices, to ensure we have confidence in the system and the law is being upheld.

 

    As I move on to my conclusion, I want to note that there was a recent Nanos survey conducted between April 29 and May 5, which reached 1,000 Canadians and was considered accurate within 3.1% 19 times out of 20. It found that only 44% of respondents supported or somewhat supported the proposals contained in Bill C-46, while 55% were opposed or somewhat opposed. I only mention this to the government to highlight that it clearly has some work to do in convincing Canadians that these increased police powers are needed.

 

    We know that countries like Australia, New Zealand, and Ireland which have instituted measures such as mandatory alcohol testing and random breath testing have all seen a substantial reduction in alcohol-related accidents and deaths, so this is definitely something Parliament will need to consider with the bill.

 

    The NDP supports any bill in principle that is aimed at stopping impaired driving, but we need to focus on smart deterrents to actually prevent these tragedies. We need a robust public awareness campaign before legalization comes into effect. With it being the leading cause of criminal death in Canada, and the fact that we have one of the worst impaired driving records in the OECD, these campaigns are very important.

 

    I will want to know how this public campaign will be rolled out. I worry about the reliability of machines checking for impairment from THC. I am very interested in hearing from civil liberties groups and the legal community on removing the reasonable suspicion requirement for breath samples. There are still many questions that we have, and I look forward to getting this legislation to committee.

 

Mr. Bill Blair (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.):   Madam Speaker, I would like to commend the member for Cowichan—Malahat—Langford for his very thoughtful review of Bill C-46 and the issues that need consideration as we move forward with this legislation, particularly in committee. I also want to say how much I look forward to working with the member opposite on those issues in committee, because the issues that he raises and that we are very well aware of are important for all Canadians.

    In response to a number of the issues raised, the member quoted a recent public opinion poll. I would agree with the member that sometimes the responsibility of leaders within Parliament is to turn heads, not really to count heads. We do have a responsibility to make sure that Canadians understand the seriousness of this offence and how new legislation, as proposed, and the new authorities and requirements on drivers that would be imposed by this legislation can actually make a difference.

 

    The member opposite referenced the Oakes decision, in which four steps were taken, including whether or not the changes that were proposed were a sufficiently important objective in order to justify minor infringements of the Charter of Rights and Freedoms. The member for Outremont, in 2012, said that random breath testing “will not only save provincial governments money, but will save at least 200 lives per year.” Given that statement, which I agree with, does the member believe that this is a sufficiently important objective in order to meet the constitutional requirement under section 1 that this be a sufficiently important objective?

 

Mr. Alistair MacGregor:  Madam Speaker, earlier this week I did have a conversation with the member for Outremont and I've had many conversations with members in the NDP caucus.

    I will note that in previous Parliaments, members from all parties have, at some point, confirmed their support for random breath testing. That being said, I would not be doing my duty as a parliamentarian, as someone who upholds charter rights and who thinks they are very important, not to do my due diligence on this particular aspect of the bill. In response to the parliamentary secretary, that is why I am offering my support for this bill at second reading. I support the principles, the fact that we need to treat impaired driving with the seriousness that it deserves, that we need that robust public awareness campaign. That is why I support getting the bill to the justice committee, which I am fortunate to sit on as the vice-chair, so that we can conduct further examinations with the experts who will be testifying.

 

Mr. John Brassard (Barrie—Innisfil, CPC):  Madam Speaker, the member's speech was well thought and well researched. Given the fact that he is the vice-chair of the justice committee, he spoke about the need for some substantive amendments to this bill. Clearly on the opposition side of the House, we feel there are some substantive amendments that are required to this bill.

    How much confidence does the member have in the ability of any possible amendments moving through committee or further through this House going forward, given the circumstances that we have seen? The Liberals control the majority and do not necessarily listen to what, perhaps, some of those amendments should be and do not implement them. Certainly, they ram a lot of things through this House.

 

Mr. Alistair MacGregor:  Madam Speaker, the justice committee has been one of the finest committees that I have had the pleasure of sitting on. We have a very good working relationship.

    Yes, sometimes the Liberal members on committee will use their way to get their votes, but I have seen other instances, notably with Bill S-201, where Liberal members on the justice committee listened to the evidence and went against cabinet's recommendation. That was one of the finest moments I have ever seen in my short parliamentary career, because the evidence outweighed what the cabinet wanted, and eventually this House got that bill passed and it received royal assent.

 

    I do not want to prejudge what the committee will hear. I intend to do my part on that committee and to work with my colleagues, both the Conservatives and the Liberals, to ensure that any bill that is reported back to the House is one that we can all have faith in.

 

Mr. Ken Hardie (Fleetwood—Port Kells, Lib.):  Madam Speaker, as a resident of British Columbia, I am familiar with the measures the province has taken with administrative penalties, operating on the precautionary principle that if someone is in a dangerous situation due to possible impairment, the primary objective is to get that person off the road, at least for a short period of time. I am wondering if the member would care to comment on whether that kind of approach and structure might be something all jurisdictions in Canada would look at as this legislation comes forward.

 

Mr. Alistair MacGregor:   Yes, Madam Speaker, I think British Columbia has seen some success with that measure. It is up to the various provincial governments, because using the criminal law sometimes can be a very onerous task. We all know how litigated this particular section of the Criminal Code is and that there are strains on our justice system in general. If provinces want to enact various statutes under the highway authority they have to put forward administrative policies or provisions, with the overall goal of getting someone off the road, be it for a 24-hour or 48-hour period, absolutely, all provincial jurisdictions should take the time to look at that measure and judge whether it is in the interests of their own regional populations.

 

Ms. Rachel Blaney (North Island—Powell River, NDP):  Madam Speaker, I know that some provinces have asked for federal funding to make sure police officers know how to more effectively identify people who are under the influence of cannabis. However, my concern is about racialization. We know that again and again people who are identified easily by what they look like are often pulled over and looked at more vigorously by the police. As well as training police officers on how to identify people who are under the influence of cannabis, I am wondering if the government could make sure there is proper training, or some sort of measure, to ensure that when racialized young people are targeted, there is more accountability.

 

 

Mr. Alistair MacGregor:  Madam Speaker, when we look at the way the section of the bill is written, which is causing a lot of consternation among civil liberties groups and members of the legal community, it allows police officers quite a lot of discretion. If they have approved testing devices on their persons, they can decide on a whim who they administer it to. If this provision somehow makes it through the House intact, it is incumbent upon the Liberal government and all provincial governments to make sure police have the necessary training so that visible minorities in Canada can have confidence that police are not acting arbitrarily, that there are reasons for them to administer the tests, and so on.

    My colleague raises an important point, which is all the more reason I want the bill to go to committee so experts can weigh in on it and we can make an informed decision.

 

Mr. Ken Hardie:  Madam Speaker, in my career at the Insurance Corporation of British Columbia, my first job was to promote the counterattack drinking and driving program. The issue was problem drinkers who drive. It may extend beyond the mandate, purview, or scope of this legislation, but I wonder if the member could comment on perhaps some complementary activities that need to be considered to get closer to a total resolution of this problem.

 

Mr. Alistair MacGregor:  Madam Speaker, one that comes to mind immediately is that some pubs in some communities now have invested in shuttle buses so that they can get their customers home safely at night. In fact, those kinds of programs attract a loyal customer base, because people know they can have an enjoyable evening at the establishment and get home safely. I would point that out as a complementary program set up by the private sector, which has worked really well in communities like mine.