Bill S-230, An Act to amend the Criminal Code (drug-impaired driving)

OTTAWA, Thursday, December 1, 2016

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-230, An Act to amend the Criminal Code (drug-impaired driving), met this day at 10:30 a.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

The Chair:  Good morning and welcome, colleagues and invited guests.  Members, earlier this fall the Senate referred to our committee Bill S‑230, An Act to amend the Criminal Code (drug‑impaired driving).  This is our second meeting on this bill.

For our first hour we have joining us the newly arrived Gerald D. Chipeur, Partner, Miller Thomson LLP; from Robertson Consultants, we have Michael Robertson, Owner; from the Canadian Council of Criminal Defence Lawyers, William Trudell, Chair; and from the Canadian Association of Chiefs of Police, Superintendent Gord Jones, who is Co‑chair of that association’s Traffic Committee.

Thank you all for being here today.

I’m not sure what the process is with respect to opening statements.  Does anyone want to volunteer to lead off?

William Trudell, Chair, Canadian Council of Criminal Defence Lawyers:  Thank you very much, Senator Runciman and members of the committee. Once again, on behalf of the Canadian Council of Criminal Defence Lawyers, it’s an honour to be here to help you with this bill.

I know that our time is short so I will try to give a quick overview.  I’m probably the best person to be here because I stopped drinking about 15 years ago and my wife keeps me around because I’m the designated driver.  That’s the answer to everyone’s problem.

What is the purpose of this bill?  If it is to convict more drivers impaired by drugs, we think the bill will fail.  If it is to raise awareness, with respect, the bill itself fails. And if it’s to prosecute consumption, which is not the purpose of the bill but may be the effect of it, it fails, in our respectful submission.

The climate surrounding the introduction of this bill is quite interesting in this country, because on the other side of the coin we have a paper just delivered and soon to be released that will talk about a different approach to the deregulation of marijuana, at least, and so we worry about delivering competing messages to the public.

On a previous occasion you were generous in having Greg DelBigio and me here to talk about, I think, delays in the criminal justice system. One the things we talked about was the provincial regulation scheme in British Columbia that replaced the impaired driving prosecution scheme.  One of the things Mr. DelBigio and I both said is that the most important message is education.  We anecdotally suggested that our experience is a lot of young people today, teenagers, are aware and they pick their own designated drivers.  So I think that the educational purpose and message is going to be the biggest deterrent.

The problems with the bill as we see them, one of the main purposes of this bill as we see it is the replacement of the drug evaluation tests by roadside screening.  Quite frankly, if we just walk through this very quickly and then I’ll stop, historically what we have is a car being brought to the attention of an officer.  The officer stops the car, would make an assessment from what he or she sees based upon the driving, would start an inquiry, may at that particular point in time ask a person to provide a roadside screening, which may lead to the person attending the station for the Borkenstein breathalyzer.  Unless there is a broad check, it would be accompanied by some roadside test; unsteady on their feet, eyes were bloodshot, speech was slurred and the test set out in the regs.  Off to the station, provide a sample under the Borkenstein, which is an approved instrument, with an approved person to run that instrument, a breathalyzer operator.

Let’s go back to where we are now with drugs.  Right now, as I understand the legislation, if the same officer makes those inquiries, there is no reason to suspect that it’s alcohol and alcohol is ruled out, the officer may perform some tests and then the person would be taken to the station.  If the officer at the scene was expert in the drug evaluation scheme, they would go through about 12 steps that are very significant.  Then upon the completion of the 12 steps, they would have reasonable and probable grounds to go to the next step, which is a sample, maybe a blood sample, maybe a saliva sample.

Let me say as defence counsel, without those physical tests, you are not going to be successful in an impaired prosecution because then science jumps in.  What concentration level means results in impairment, and we don’t know that.  So you can see that the cases will increase and the challenges will increase if you take away how you prove impairment or how you get to reasonable grounds for impairment, and that is the performance on those physical tests, because that talks about impairment.  We’re not prosecuting consumption; we’re prosecuting impairment by drugs or alcohol, and that’s an important step.

If you take out the steps that the drug evaluation officers, some not trained very well but at least those steps are there, if you take them out, my suggestion is that your prosecutions are going to fail, they will take longer, there will be constitutional challenges and scientific evidence and the issue becomes much more complex.

The Chair:  I will stop you there and remind other witnesses roughly five minutes.  Hopefully you can stay in that neighbourhood so we have time for questions from senators.  Superintendent, do you wish to make an opening statement?  The floor is yours.

Gord Jones, Co‑chair, Traffic Committee, Canadian Association of Chiefs of Police:  Thank you.  Distinguished members of this committee, I was delighted to accept your invitation and I’m here today as the Co‑chair of the Traffic Committee of the Canadian Association of Chiefs of Police.  I’m also part of the Ontario Association of Chiefs of Police.

I am pleased to be speaking on behalf of our president, Director Mario Harel, and CACP members from across the country.  The mandate of the CACP is safety and security for all Canadians through innovative police leadership.  This mandate is accomplished through the activities and special projects of a number of committees and through active liaison with various levels of government and departmental ministries, having legislative and executive responsibility in law and policing.

Police services across the country have been noting an increase in the number of incidents of impaired driving after the utilization of illicit and prescription drugs by the driver.  Of great concern to police services is the increasing number of fatally injured drivers who have tested positive for drugs.  Although recent studies in both British Columbia and Ontario have shown that marijuana is the drug of choice, a full range of drugs, such as cocaine, heroin and methamphetamines, are being detected.  With the anticipated legislative change in relation to the recreational use of marijuana, the impact on road safety is worrisome.

The CACP welcomes legislation that addresses improvements in road safety, which brings me here today to discuss oral fluid devices that detect drugs in a person’s body, which the CACP had asked the Government of Canada to approve for use through a 2014 resolution.

To be clear, the CACP supports this bill put forward by Senator Carignan.  I will briefly address some suggestions to further improve the proposed legislation that will benefit front‑line policing.

Within section 2(1), the definition of an improved screening device, wording has been added to ascertain the presence of drugs in the blood of a person.  Currently, oral fluid devices cannot ascertain the presence of drugs in the blood of a person.  They can only ascertain drugs are present in a person’s body.

Within section 254(2), all references to “peace officer” should be proceeded with “a” as opposed to “the,” as demands may be made by other than the original officer.

Turning to section 254(3.4), this refers to the collection of bodily substances such as saliva, urine or blood.  As you can appreciate, any demands for bodily substances are intrusive by the very nature of the request, with stronger grounds required as the level of intrusiveness increases to ensure that the rights of individuals granted under the Charter of Rights and Freedoms are protected.

As a result, it is our respectful submission that in this section, any references to “peace officer” be replaced with “evaluating officer.”  These officers are qualified under the regulations to conduct evaluations after having undergone significant additional training to observe and detect indicia of impairment by drugs.

Further, within subsection (3.4), the results of physical coordination tests ‑‑ paragraph 2(a) ‑‑ the results of the analysis ‑‑ paragraph 2(b) ‑‑ or the evaluation conducted ‑‑ subsection 3.1 ‑‑ should be separated by “or” as opposed to “and.”

As currently written, it suggests the peace officer would require both the failure of the driver of the physical coordination tests and a positive drug screen before being authorized to make a demand for bodily substances.  This is problematic, should the drug ingested by the driver not fall within the pallet of generally five to seven of the most common drugs, which would not result in a positive drug screen, nor is written the ability to make a further demand for bodily substances.

Finally, as I’m sure the committee is aware, there are a number of road safety bills presently in varying stages of consultation, including Bill C‑247, An Act to amend the Criminal Code in relation to passive detection devices; Bill C‑226, An Act to amend the Criminal Code (offences in relation to conveyances); and of course the bill to which I am speaking this morning.  I would respectfully ask the committee to consider combining the road safety bills in order to streamline legislation for front‑line police officers.  There are a number of areas in the bills that cross over into each other.

Prosecution of the impaired driver over the years has been one of, if not the most, technical based on difficult prosecution that a front‑line police officer will encounter over their careers.  As we continue to properly adapt for the drug‑impaired driver, it is critically important that the tools and processes are available to the front‑line police officer to hold drivers accountable for any poor decisions they may make.

On behalf of the CACP, I would like to thank Senator Carignan and the committee for advancing road safety across the country.  Thank you.

The Chair:  Thank you, superintendent.  Mr. Robertson?

Michael Robertson, Owner, Robertson Consultants, Inc.:  Good morning.  My name is Mike Robertson, and I’m from the United States, North Carolina to be exact.  I have been a law enforcement officer for slightly more than 47 years and have worked for the three major state police agencies in North Carolina and retired as the chief executive officer of two of them.

I had become involved in oral fluid testing as part of a consulting firm that I started when I retired, but I still maintain my certification as a law enforcement officer, and I basically do it every week; I still make arrests.

What I would say about oral fluid testing is not to focus only on marijuana.  Drug driving crosses the span, as the superintendent said.  You not only have prescription drugs but you have the abused drugs that are on the street and marijuana.  Drug screening will not ‑‑ and I repeat will not ‑‑ give you an impairment level.  You must leave that to your police officers to first determine.  We have an articulable suspicion to stop a car and reasonable grounds to continue an interrogation and probably cause to make arrest.  The police officer must have grounds to move from one step to the other.  An oral fluid test is a tool that an officer uses to either find or to eliminate something.

We worked with alcohol for years and years and we came up with .08 which seems to be the level everybody has accepted for alcohol impairment.  That’s not here with drugs.  These oral screening tests will give you a level, but impairment, I guess you would say, is in the eyes of the beholder.  That is, what was his driving like?  How did he act?  How did he look?

I am a strong proponent of oral fluid testing.  I have been to Colorado and California, taught in Washington, worked in Maryland and in Michigan, and we are starting to get a way to do this.

It’s my opinion that if an officer is trained in standard field sobriety tests with some of the advanced training, he should be capable of doing this roadside test.  The next step, as the counsel alluded to, is the DRE, the drug recognition expert.  Some jurisdictions are doing it only through the DRE.  Particularly with marijuana, if you have a good traffic stop, you will lose your marijuana, Delta‑9‑THC, in about four hours.  It’s ingested two hours peak and then it rapidly comes off.  A law enforcement officer is interested in what is causing the bad driving right now.  I want to know what caused him to run off the road or cross the centre line.  I’m not interested in metabolites and what he did last week.  I’m interested in my traffic stop.  I will stop there and wait for questions.

I do appreciate being here and I consider it an honour to get to come to Canada to talk about traffic enforcement.

The Chair:  Thank you for being here.

Gerald D. Chipeur, Partner, Miller Thomson LLP, as an individual:  I have been asked to give my opinion on this bill and the amendments to the Criminal Code contained in the bill.  I’ll come right to my opinion, namely that this amendment is consistent with the Charter.  While it does impact on the right to counsel and section 7 as well, liberty interests, there is no doubt, based upon Supreme Court of Canada precedent, in particular the R. v. Woods decision of Justice Fish, that an immediate test, immediately or forthwith provided and dealt with by the police, will meet the test under section 1 for a law that is reasonable in a free and democratic society.

This particular bill makes these sections of the Criminal Code, sections 253 and 254 more compatible with the Charter because it creates a situation that is less intrusive for the individual motorist.  In fact, for the person that is not impaired in any way by drugs, this test will immediately end an inquiry that could take longer if this test was not available.  As my friend indicated, this test is just as much about elimination as it is about conviction.  For those reasons it’s my opinion that this bill is both consistent with the Charter and in fact will improve the compliance of the Criminal Code with the Charter.

The Chair:  Thank you very much.  We will move to questions now, beginning with the committee’s Deputy Chair, Senator Baker.

Senator Baker:  Thank you to the witnesses for their very helpful presentations.

As we’re time limited here in asking our questions, let me present a general question to you.  I don’t know why the mover of the bill has removed the qualified person; that is, “trained police officer,” and replaced it with “any peace officer”.  Senator Dagenais is an expert at trial.  He is licensed and certified as an expert.  He will not agree with removing that from the law and replacing it with “any peace officer.”

My main question is this:  The mover of the motion is proposing to change the law, not for evidence at trial ‑‑ this is not for evidence ‑‑ to add to the indicia that an officer stopping a vehicle would have to go on to reasonable grounds to believe that somebody is impaired by drug or by alcohol. In other words, “articulable” cause in the United States.

In Canada, every Highway Traffic Act provincially allows an officer to stop a car for no reason ‑‑ no reason at all.  Every province, every jurisdiction says any officer’s allowed to ask for licence, proof of ownership and insurance.  Then in three jurisdictions in this country we have the additional reason for that in the Highway Traffic Act, “to see if there are indicia of impairment by alcohol or drug.”  A police officer can do that without any grounds in Canada.

What we are dealing with here is a bill similar to the change that was made for alcohol ‑‑ and it can’t be used as evidence at trial; that’s not what his bill is about ‑‑ that would add to the indicia of possible impairment by drugs or alcohol.  The expert would say red lines in the eyes, slowness of speech, slowness of movement, are indicia of impairment of marijuana, for example.  His bill is not to provide evidence, it is simply to provide reasonable grounds to suspect and then to believe to make an arrest because when you take somebody to a station you have arrested them.  You cannot take them to a police station without arresting that person and giving him rights to counsel.  His bill does not require rights to counsel to administer that test just as blowing into a breathalyzer at roadside does not require rights of counsel.  This is an investigative thing.

What would any of you have to say about that fact that this bill does not deal with evidence at trial; this bill does not deal with anything that’s to be used at trial, no rights to counsel, it’s simply to the add to the indicia that an officer would have reasonable grounds, together with other things, that would lead to arrest?

Mr. Robertson:  I will describe three situations: articulable suspicion, reasonable grounds to believe and probable cause.  In the States, we should have a reason to stop a car.  Articulable suspicion is anything I say as a police officer, for example, his taillights were out; he ran off the road.  I just need a reason.  It used to be I could stop you because you were on my highway.  I don’t quite do that anymore.  If I have a good traffic stop, I have a reason to stop him.  Then, at the window, you see the slow, very slow slur, slowed‑down speech, it’s probably marijuana.  Usually you have an odour that gives you a reason.  Methamphetamine gives you the hard, rigid, pinpointed eyes.

Senator Baker:  Yes, the pupils are dilated.

Mr. Robertson:  It gives you reason to get him out and start talking to him at whatever location is safe for you and the individual you are talking to.

Oral fluid testing right now is exactly what you said.  It is an indicator.  It eliminates or gives you now probably cause to move forward.  Oral fluid test is an absolute probable cause to put on paper to get a warrant if I need it.

Now, you can go from an oral fluid test with consent to a verifying Quantisal test which is more oral fluid.  There is a tube that is immediately sealed at the scene and goes to a laboratory, either a state or a contract laboratory, for a gas chromatograph.

In the worst case scenario, it is a bad wreck with multiple fatalities and you need to get a warrant in the U.S. to do a blood draw.

But it’s all steps.

This oral fluid testing is not great for roadside checking.  If I set up a checking station, I would not administer oral fluid test.  That’s like fishing:  You don’t know what you’re trying to catch.

If you’ve got a reason and you use it, it absolutely works.  You’ve got to depend on your police officer and defence counsel to keep everybody honest.

The oral fluid testing is very good if used properly.

Senator McIntyre:  Mr. Jones, you made reference to resolution 2014‑01 of the Canadian Association of Chiefs of Police.  That resolution is referred to in the preamble of this bill.  It mentioned, among other things, that it is difficult for police officers to detect drug‑impaired driving.

To your knowledge, what types of difficulties do police officers generally face, and how will this bill affect police work?

Mr. Jones:  Depending on the circumstances ‑‑ middle of the night, dark roadside, sometimes the ability to truly see what a driver is exhibiting ‑‑ can become difficult for an officer.

I can take it back to a few years ago when I was on the road and arresting impaired drivers.  Sometimes you would arrest them for impaired because they were falling‑down‑drunk, and it’s a very simple part.  There are others who are seasoned drinkers or of the like such that they would have a high BAC reading but they’re as sober as we all are in this room.

The oral fluid device would become an additional tool for officers to move forward during the roadside tests to determine that indicia of impairment.  With the road conditions, weather conditions and with a subject who may or may not be compliant with what you’re doing, sometimes it takes a while to have the ability to sit down and look at what that indicia of impairment is.  An oral fluid device will, in fact, help build the grounds to move forward through SFST into an arrest, rights to counsel and placed before a DRE officer.

Senator McIntyre:  The bill amends the code, replacing the words “evaluating officer” by “peace officer.”  Does a peace officer who is not an evaluating officer have the necessary qualifications to require samples of body fluids?  Are you satisfied with the impact of this amendment?

Mr. Jones:  No.  It is my position and that of CACP is that it should remain with the evaluating officer who has that additional training and meets, by regulation, what an evaluating officer is.  Making demands for blood, urine or saliva is very intrusive and has to do with rights guaranteed under the Charter that there should be an officer with a higher level of evaluation who’s making that determination.

Mr. Trudell:  The screening device we’re talking about is simply that: a screening device.  We have to be concerned going forward about false positives, what screening device we’re using and what drugs that screening device can pick up.  The overuse of this is an initial question.

But I’m delighted to hear about the need for training.  There are four issues: false positives, a need for training, privacy issues and warrants.

We’re talking about the front end.  When we move to the station and the demand for a urine and/or blood sample, in my respectful submission, there must be a warrant.  It must be judicial ‑‑ with an authorization for a blood sample, especially ‑‑ at the station.

The whole issue of privacy and the use of DNA, consider women at the station being asked to give blood or urine samples.  I think there should be some judicial input into that demand for what may be evidence down the line.

Senator Joyal:  I tried to follow up on Mr. Robertson’s answer, which raised an interesting element in the evaluating of the process.  If I listened to you carefully, police officers cannot just do an operation of trying to catch everybody and push the test to everybody.  In other words, the test has to come after the police officer has identified that he or she has reasonable grounds to believe that this person could be suspected of being drugged‑impaired.

Mr. Robertson:  Absolutely.

Senator Joyal:  It can’t be an operation whereby, on a Friday night, the police stop somewhere and arrest everybody, sign or no sign of drug impairment.  Am I right by saying that?

Mr. Robertson:  Absolutely.

And I’m now agreeing with the superintendent and counsel.  The test should be administered by someone who is trained.  I don’t know what the academies teach up here, but if the academy teaches Standard Field Sobriety Testing and ARIDE, Advanced Roadside Impairment Driving Education ‑‑ the test should be administered by someone who is trained.  Then the DRE is a much higher‑trained person.  He’s very expensive, but DREs are excellent at what they do.

I don’t disagree with counsel.  If you go to a blood test ‑‑ unless the guy says, “Take my blood.  I’ll sign the paper.”  If you get signed consent, we’d probably move forward.  We have to take him to a hospital, to a phlebotomist.  We don’t draw at the station.

Senator Joyal:  Mr. Trudell, you could argue in the defence that the test was administered without real proof that the police officer had noticed the person had presented the signs of drug impairment.  In other words, the police cannot say to the car, “Stop there and say breathe in this.”  In other words, the police has to suspect that the person will come out of the car or will start talking to the police officer.  Then the police officer would have signs to conclude that the person might be impaired.  It’s not the first test on the list of signs that a person has to show to convince the police officer that there are reasons to believe that the person is impaired.

Mr. Trudell:  The Christmas spot check is going to raise completely different issues, but I hope that peace officers don’t pull the new screening device for drugs and start with that.

There is a suspicion, which leads to probable grounds to go to the next step.  In my submission, the peace officer who will be using this screening device has to have some training in this device and has to not go as far as the drug evaluation officers, probably, because that’s very expensive, but that officer can’t just pull it out and say, “I need a saliva sample.”

With the greatest respect, because of the pressure of impaired driving, because of how we introduce some of these things about carnage on the road ‑‑ and we all know that’s a serious problem ‑‑ there has to be discipline built into that first stage.  Then the Charter will kick in, of course.

But there can be all kinds of questions about that device.

Senator Joyal:  But in terms of the Charter kicking in, which sections of the Charter would you say would be mostly triggered by the use of that device?

Mr. Trudell:  Rights to counsel is always there.  When does that kick in?  The law has moved that away from the reasonable steps an officer takes for suspicion.

Section 7, which is a general section of the Charter that we always have in our back pocket to look at the arbitrariness of the law enforcement procedures ‑‑ the law itself ‑‑ is also a section that’s going to be looked at in terms of the arbitrary nature of the interference with a person’s right not to provide a saliva sample.

(1110 follows in French ‑‑ Sen. Carignan: J’ai quelques éléments…)

(après anglais ‑‑ M. Trudell : …to provide a saliva sample.)

Le sénateur Carignan : J’ai quelques éléments, précisions aussi, sur le projet de loi, sans vouloir témoigner. D’abord, Monsieur Trudell, je veux être clair. Je suis d’accord avec 98 p. 100 de votre témoignage d’introduction. Le but du test n’est pas de remplacer, mais bien de donner un élément objectif dans l’exercice du raisonnement d’avoir des motifs raisonnables et probables de croire pour, par la suite, passer à la deuxième étape, on ne peut pas avoir une preuve de facultés affaiblies par un simple résultat de ce test. Il faut avoir les autres éléments de comportement qui doivent être évalués. Je veux juste être certain qu’on s’entend bien sur l’objet du projet de loi qui n’est pas du tout de remplacer les autres éléments qui touchent, mais bien d’ajouter un élément de preuve sur les motifs raisonnables.

Ma question s’adresse au chef de police. Pourquoi on a remplacé l’agent évaluateur par un agent de la paix? Vous êtes d’accord avec moi pour dire qu’un agent évaluateur est toujours un agent de la paix?

(anglais suit ‑‑ M. Robertson : Yes.  You have to…)

(Following French ‑‑ Senator Carignan ‑‑ …est toujours un agent de la paix ?)

Mr. Jones:  Yes.  You have to become a peace officer before you become an evaluating officer.

(French follows ‑‑ Senator Carignan ‑‑ Est‑ce qu’un…)

(après anglais ‑‑ M. Robertson: …you become an evaluating officer.)

Le sénateur Carignan : Est‑ce qu’un patrouilleur sur la route est toujours un agent évaluateur?

1. Jones : Non.

Le sénateur Carignan : C’est pour cela que 3.4 est modifié pour « agent de la paix » dans le but de couvrir les deux situations. Pour couvrir la situation où il y a un agent de la paix qui contrôle un individu et qui lui fait passer le test et qui lui fait les éléments de contrôle comportemental, dans certaines situations, cela peut être à la suite de l’agent évaluateur. Donc si je vous l’plique de cette façon, est‑ce que vous ne croyez pas qu’il est raisonnable, dans le sens où cela n’a pas pour objectif de retirer l’expert évaluateur, il peut rester là, mais on donne une option supplémentaire a une meilleure preuve de conduite avec facultés affaiblies lorsqu’un agent de la paix fait passer le test, qui fait une analyse de comportement pour évaluer s’il y a conduite avec facultés affaiblies et qui, en plus de ça, prend un échantillon avec la quantité. Est‑ce que cela change un peu votre point de vue?

(anglais suit ‑‑ M. Jones : Respectfully, senator, I believe…)

(Following French ‑‑ Senator Carignan ‑‑ …votre point de vue?)

Mr. Jones:  Respectfully, senator, I believe, as the CACP, the evaluating officer has to remain in that equation.

Senator Carignan:  It’s remaining, by the way.

(French follows ‑‑ Senator Carignan continuing – Quant à la question de la quantité…)

(après anglais – Le sénateur Carignan : …remaining, by the way.)

Quant à la question de la quantité, votre point est de dire qu’il faut enlever la présence, parce qu’avant c’était la présence et maintenant, on indique la quantité de drogue. Est‑ce que vous croyez que la quantité de drogue peut être un élément rationnel dans le cadre d’une preuve de conduite avec facultés affaiblies? En d’autres mots, une quantité minime a moins de chances de constituer ou d’avoir un effet de facultés affaiblies tandis qu’une quantité extrêmement élevée avec un toxicologue, un expert, peut démontrer qu’une quantité aussi importante, c’est rationnel que la personne ait eu un comportement de facultés affaiblies?

(anglais suit ‑‑ M. Jones : Everyone is different, and…)

(Following French ‑‑ Senator Carignan ‑‑ …de facultés affaiblies?)

Mr. Jones:  Everyone is different, and regardless of the small amount of drugs present in the body, it could have a very noticeable impairing effect, depending on how that body is made up, whether or not they’ve utilized drugs in the past, whether they’re a steady, regular user of drugs.  So that simply having a presence supports what was seen in terms of the impairment or the results of the roadside tests that were conducted.

(French follows ‑‑ Senator Carignan ‑‑ Je ne parle pas de…)

(après anglais ‑‑ M. Jones : …that were conducted.)

Le sénateur Carignan : Je ne parle pas du test de dépistage de drogues en bordure de route. La quantité c’est sur le dernier, c’est l’échantillon de sang ou c’est l’échantillon buccal qui est mis en preuve. Je ne parle pas du test de dépistage de drogues en bordure de route, mais de la preuve de la culpabilité où on demande la quantité.

(anglais suit ‑‑ M. Jones : That, respectfully, is up to the…)

(Following French‑‑ Senator Carignan ‑‑ …on demande la quantité.)

Mr. Jones:  That, respectfully, is up to the scientist to determine the impact.

Senator Carignan:  I agree with you completely.

Senator Jaffer:  Because of time limitations, I’m just going to direct my question to you, Mr. Trudell.

Obviously, we all agree we want the bill to work.  My preoccupation yesterday was on the taking of the saliva because it’s more intrusive than the breathalyzer, but perhaps I shouldn’t be too concerned about that.

You mentioned the more intrusive thing about taking blood without a warrant, and it doesn’t matter where it is done, whether the hospital or the station.

My bigger question to you is on the suspicion.  In my province, and I don’t know about others, you can be stopped.  There does not need to be a suspicion, so not under the Criminal Code, but under the traffic act you can be stopped.  There is no suspicion.  Somebody is stopped, and then the police officer has the suspicion that maybe they have taken some drugs.

I wanted you to sort of walk us through that, and that’s why I’m asking you the question.  When does it become a problem?  When will this bill become a problem?

Mr. Trudell:  Well, the bill becomes a problem in reading it because of two things.  We’re all here to help you and so we don’t say, “Pass the bill, because the defence will be busy forever.”  We’re not saying that.  We’re trying to help you.

The officer says training is important.  He could say, “No, it’s all right.”  But training is important.  Mr. Robertson has said something here from his experience that I hope resonates in this room:  You need a warrant to get blood.  It’s without question there.

Let’s go back.  A medical marijuana user has a greater tolerance to marijuana than, for instance, I might.  So the variations in terms of the type of drug and how they are used becomes important.  So we’ve built in science here which will complicate the cases and make them longer, and we’ve taken out training.

With great respect to the bill, if you take out training and all those 12 steps those evaluation officers must go through now, that’s the guts of your impaired.  This bill is empty.  It sends a good message ‑‑ we’ve got to be careful about this ‑‑ but I think it raises more questions.

As I said, Senator Jaffer, I worry about that saliva test, that new device replacing an officer who has had some training to look at the effects of drugs on someone.

What happens at the front end?  The courts are relaxing in terms of the screening that takes place to move to the next step, but as soon as you move to the next step, then there will be constitutional challenges and lengthy cases because you’re becoming very intrusive.  You’re becoming intrusive without that training and careful test.

If you look at the 12 various steps, the procedures that are followed by the drug evaluators, a preliminary examination consists of examining the pulse and determining that the pupils are the same size and that the eyes track an object equally.  That is sophisticated.  Then it goes on.

So if you take that out, you’re not going to be successful in prosecuting these cases.

(French follows ‑‑ Senator Dagenais ‑‑ Le sénateur Baker m’a présenté…)

(après anglais ‑‑ M. Trudell : …prosecuting these cases.)

Le sénateur Dagenais : Le sénateur Baker m’a présenté comme un expert. J’étais un technicien d’ivressomètre, pendant une trentaine d’années. Dans les années ’70, on n’avait pas l’appareil d’ivressomètre. Donc, c’était uniquement la conduite erratique et les tests symptomatiques. L’appareil d’ivressomètre est arrivé plus tard et ensuite on a eu le dépisteur l’haleine que les policiers appellent communément l’Alere. En passant Monsieur Trudell, lorsque quelqu’un n’était pas en mesure de fournir un échantillon d’haleine et on devait prendre une prise de sang, il était amené à l’hôpital, on faisait la mise en garde. Au Québec on n’avait pas besoin de mandat pour cela.

Ma question est pour M. Chipeur.

Les lois peuvent être très claires, mais le rôle des avocats est de contester certaines dispositions au nom de leurs clients.

Disposez‑vous d’une jurisprudence au sujet de débats qui auraient pu avoir lieu au Canada sur la validité des appareils utilisés en première ligne pour détecter les personnes qui auraient conduit sous l’effet de drogues?

(anglais suit ‑ Mr. Chipeur ‑ That does not exist…)

(following French ‑‑ Sen. Dagenais ‑‑ …conduit sous l’effet de drogues?)

Mr. Chipeur:  That does not exist at the present time, senator, and that is because the legislation has not provided for that kind of testing device.

However, for the last 20 years, 30 years, we have had challenge after challenge of the breathalyzer test.  If you actually analyze what a breathalyzer analyzes, it doesn’t analyze air.  It analyzes oral fluid.  It’s just another way of saying exactly the same thing.

All of the cases that have analyzed breathalyzers would be, in my opinion, applied by the court if there were an attempt by the Defence counsel to say that these tests don’t work.  We’ve seen for 30 years that the courts have accepted the scientific evidence that they do work.  This is just a different way of analyzing the same thing, that is, oral fluid, for a different substance.  It needs to have a different kind of test, but it’s the exact same bodily substance. And it is a testing process that is very short.

Because you have scientific proof that this works and because it is a very short period of time and because it’s done immediately, those are the three questions that have been asked by the courts, and the courts have said, “Because of the answer to those three questions, we have found that the breathalyzer rules with respect to alcohol are consistent with the Charter.”

It’s my opinion that the same kind of analysis would take place with respect to this particular kind of device that, in my view, analyzes exactly the same thing.

(French follows ‑ Sen. Dagenais ‑‑ Ma seconde question s’adresse à M. Robertson…)

(après anglais ‑ Mr. Chipeur – …analyses exactly the same thing.)

Le sénateur Dagenais : Ma seconde question s’adresse à M. Robertson. Vous savez qu’entre policiers, nous sommes toujours frères par affiliation professionnelle.

À votre connaissance, dans quelle proportion les résultats de tests positifs d’échantillons prélevés par les policiers américains ont-ils entraîné une condamnation? Je parle de tests concernant la drogue.

(anglais suit ‑ Mr. Robertson – Senator, thank you for your question. This is so new …)

(following French ‑ Sen. Dagenais ‑‑ …de tests concernant la drogue.)

Mr. Robertson:  Senator, thank you for the question. This is so new that we don’t have numbers yet on convictions.  Colorado has been using roadside screening for almost two years now.  They have not published arrests.  Their marijuana driving‑under‑the‑influence arrests have obviously gone up because now they’re testing for it.

I also go back to the old Stevenson breathalyzer, the 900 with the thumb wheel.  I would encourage you ‑‑ and this is not your question – not to confuse quantity with impairment.  Marijuana seems to be about 5 nanograms. But I’ve had breathalyzer results go well into the 30s, and they could walk and talk just like we are.  Don’t let quantity be confused with impairment.  Impairment, again, goes back to the officer and, through that, practicable suspicion, through that, probable cause.  It’s an investigative tool.  It’s a very good investigative tool, but you have to remember that that’s what it is.

Senator Batters:  I want to get a little bit further into depth on what Senator Dagenais was just speaking about briefly, your opinion on the Charter compliance on this particular bill.  I’m wondering if you could just tell us with some more detail if it’s your considered opinion that the provisions of this bill breach the Charter or not. If they would, in your opinion, then is it your opinion that section 1 would save it? If you can just outline your analysis on that a little bit, thank you.

Mr. Chipeur:  A few cases, one that I have already highlighted, the Woods case. Justice Fish was a very strong defender of the Charter, particularly of the right to have counsel. Because of the fact that there was a minimal intrusion into the life of a citizen and because the very issue is so important ‑‑ it’s a life and death matter if you have an impaired person driving ‑‑ the courts said that is a reasonable limit in a free and democratic society.

There are a number of other cases out there that highlight that.  One is a case called Hufsky That’s the decision of Justice Le Dain in which he talked about the importance of the roadside breath test in terms of addressing the evil, the concern that Parliament had.

The Supreme Court has, on many occasions, had an opportunity to say section 8 of the Charter or section 7 of the Charter or section 10 of the Charter is going to be impacted by the breathalyzer routine, and they’ve said that it is not going to be struck down under the Charter because, in each case, section 1 saves the intrusion.  There is no doubt that there is an intrusion, but think about it this way: If I’m a citizen that is innocent ‑‑ and that is really the person we should be concerned about here ‑‑ I want to be vindicated sooner rather than later.  The process that I have to go through without this is much more intrusive.  I have to go through a number of roadside tests that I don’t have to if I can immediately satisfy the officer that there is nothing in my oral fluid.

From my perspective, not only does this pass the Charter test, it actually makes the Criminal Code less of an infringement under the Charter, and that is why I express the opinion that I do.

Senator Plett:  I had two questions, and one of them Senator Batters just asked and you answered very well, Mr. Chipeur.

I want to take it a little bit further and talk about the doom and gloom that Mr. Trudell points out in this bill and ask you specifically: Is there anything in this bill, in your opinion, Mr. Chipeur, that will replace the physical test, as Mr. Trudell has pointed out?

Mr. Chipeur:  It could take you from stage one to stage two without the initial roadside physical test, but it in no way impacts the DRE.  That test that must be done later is there.

You also have the blood in urine.  The blood‑in‑urine test that has been in place for decades does not require a warrant.  There is no need for us to say that we’re going to create more review, bring judges into a process that is exactly the same thing as the alcohol testing process, that has been tested in the Supreme Court time after time after time.

I don’t understand.  These changes are very minimal.  It is talking about helping, really, a few officers who are not comfortable making the judgment with what they see, and they need this additional test to help them to make a call.  They make the call.  That certainly cuts out the intrusion into the life of the citizen instead of adding to it.

Senator White:  I apologize for being late, particularly to the witnesses.

If I may, Mr. Jones ‑‑ I’m sorry I can’t see your rank insignia ‑‑ just for clarity, could you explain the fact that, in most impaired driving cases, there are originally two charges laid, one for impaired driving, which has to do with driving and what we see, and the second for over 0.08. When we have a discussion around 2 nanograms, 5 nanograms, 10 nanograms, it really doesn’t matter, as was stated by Mr. Trudell.  Some people can drink a 26 ouncer of whisky and still drive, and other people have a glass of red wine and can’t drive.  I wonder if you could just walk us through the understanding of the two different charges that are laid and why they’re laid. People watching may misconstrue that you have to be a drunk driver.  That’s not the reality for us.

Mr. Jones:  In fact, there are two distinct charges within the impaired driving section.  We talk about impaired driving, which is your ability to operate a motor vehicle.  That’s the indicia impairment, the glassy eyes, the slurred speech, the disheveledness, the unsteadiness on your feet, versus an over 80 charge. The officer at roadside doesn’t have those indicia. It’s just someone who, for whatever reason, they’ve stopped, whether it might be a tail‑light out. Nothing has suggested that it has anything to do with impairment.

However, if through the course of that investigation there’s an admission or they find some evidence to say that the person has been drinking but not to a point where they are impaired, there are two tracks they go.  If the original investigating officer believes the person’s ability to operate is impaired, they will be arrested for impaired driving, given rights to counsel, transported to the station, a demand will be made, be placed before a breathalyzer technician, Intoxilyzer service.

Second, if you don’t have that indicia of impairment but you have someone who either admits to having a glass of wine with dinner or you smell the odour, that gives you suspicion to believe that person has alcohol in their body and you can make demand for an approved screening device, a roadside screening device.  They provide a sample into that, and depending on the results, if they pass they are allowed to continue on their way.  A warning, they will be given a provincial suspension based on each province’s suspension process; and if there is a fail, the person is then arrested for driving over 80 milligrams because the ASD is set to a level that will trigger when the person has more than 80 milligrams of alcohol in their blood.

They are arrested, given rights to counsel, a breath demand is made, and then they are put before the breathalyzer technician.

Senator White:  Thank you.  I appreciate that, and I’m sure, not unlike myself, you were around when the alerts first came out, the little yellow box.  In reality what we are talking about in this piece of legislation is an alert‑type device except not for alcohol.  That’s really what we are talking about.  There’s no criminal offence that will be generated as a result of a fail.  In fact, with this device it is just one more tool that can be used by the police to try and get them enough evidence to bring them to the next stage, which is a blood test, hair sample, a secondary tool that has not been approved yet by the legislators.  This is a just a tool that we’re talking about.

Mr. Jones:  I agree, senator.  We don’t have a legislative body, a framework in relation to what a fail or a positive hit on an oral fluid device will tell you.  All it will say is that the person has a quantity of drugs in their system.  It’s not saying they are impaired.  It’s not saying they are driving over a certain level because we don’t know what that level is.  We haven’t been provided anything.  It’s another tool for the officers in conjunction with the other physical tests and the DRE.

The Chair:  I have a quick question for Mr. Robertson.  We had testimony yesterday about how the metabolic rate for drugs is less predictable than alcohol and has much shorter timelines for testing.  What have you found in terms of the challenges that might pose for law enforcement?

Mr. Robertson:  The greatest challenge is in marijuana.  All these oral fluid tests test for the delta‑9‑THC, which is the psychoactive part.  It drops off rapidly.  Quite frankly, the metabolites don’t mean anything.  They are not impairing.  They are present for weeks.

If a person tests above the cut level for opiates or for prescription drugs, it is well above the therapeutic level, and it will take several days for a person to reduce that level in the blood system, same as hydrocodone, a schedule 2 painkiller.  It would take several days for that level to drop down because medically they are trying to get you to a level to control your pain, and it would take several days for that to come down.  We are interested in the time of arrest.  We want to know what is happening right now, what caused the bad driving.

The Chair:  What is happening with respect to establishing threshold levels for impairment by THC?  What’s happening there?

Mr. Robertson:  Two states have chosen five nanograms based on anecdotal evidence of what they have found from impairment on traffic stops.  They have chosen five nanograms.  That seems to be where the level is settling out at.  There have been no definitive tests because marijuana is still an illegal drug.  NHTSA can’t do tests.

I would agree with what he said.  Instead of a traffic stop, let’s say it’s an accident.  I might go from accident to blood test.  All these other things are out because he’s in a hospital bed, but it still takes that officer’s probable cause to get there.

The Chair:  I have a feeling we could keep you here for another hour, but we have run overtime and have another panel waiting.

Thank you all very much for being here.  Your testimony has been very helpful.

Joining us at the table for our second hour are Christine Moore, Vice President of Toxicology Analytical Services  at Immunalysis Corporation; joining us by video conference from California is Robyn Robertson, President and CEO of the Traffic Injury Research Foundation; and with us from the Wisconsin State Laboratory of Hygiene is Amy Miles, Director of Forensic Toxicology.

Thank you all for joining us.  We have roughly five minutes for opening statements; Ms. Miles, perhaps we could begin with you.

Amy Miles, Director of Forensic Toxicology, Wisconsin State Laboratory of Hygiene:  First, thank you all for allowing me to be here today.  Through my experience with the drug and driving issue we have in the United States, the work I have done with oral fluid with both the drug recognition expert, or DRE, program through the National Safety Council and an international drugs and driving committee that I chair ‑‑ of which we have an oral fluid subcommittee ‑‑ I have participated in research and gained information on this topic. Like the previous panel did, I hope I can help answer any questions you might have.

I am offering testimony in support of Bill S‑230 and strongly encourage the use of roadside oral fluid devices for law enforcement officers to screen for drugs in drivers.

While oral fluid testing has been widely used in other countries, it is only within the last 10 years that the United States has been performing comparison projects of oral fluid, roadside devices and blood sample collection with great success.

Drug‑impaired driving poses many challenges, including detection and documentation by law enforcement officers and the subsequent testing performed by the forensic laboratories.  While the DRE program is very strong across the United States, not all law enforcement agencies have access to a DRE, and their training on detecting drug‑impaired drivers is somewhat limited.

A roadside oral fluid instrument has shown more robust articulation of drug impairment and offered further support for law enforcement officers to pursue an arrest for driving under the influence of drugs.

Many forensic laboratories struggle with resource and funding issues and the results from the roadside devices can help us to narrow the scope of testing the laboratory needs to provide in order to support the arrest.

From March to May of this year, Wisconsin embarked on its first oral fluid roadside testing project.  The goals of the project were to confirm the validity of the oral fluid device and allow law enforcement to decide for themselves if the instruments could be helpful when used during a traffic stop.

As part of this project, the forensic toxicology section at the Wisconsin State Laboratory of Hygiene tested blood samples and compared them with the roadside device results to see whether the oral fluid test was reliable.  In examining over 100 cases, the validity of the oral fluid device was affirmed.  In most drug categories, we saw a strong correlation between the blood and roadside device results.

We do recognize there are certain drug categories which make it difficult to draw a direct comparison between the different matrices ‑‑ oral fluid and blood.  For example, drugs in the benzodiazepine class do not readily partition into oral fluid, whereas they are easily identifiable in blood.  When looking at THC the devices are designed to detect the parent compound Delta‑9‑THC, which is indicative of recent use.

Conversely, the forensic laboratory testing detects not only the parent compound but the inactive carboxy‑THC metabolite, as well.  Overall, in looking at all the categories tested, good correlation exists and the data indicates the unlikelihood of a false positive result from a roadside device.  We are also confident the threshold between a positive and a negative result, also known as the cutoff, is sufficient in the roadside devices to avoid false accusation of an individual recently consuming a drug when that was not the case.

Enough oral fluid projects have occurred across the United States to confirm our findings and further solidify our opinion that, when coupled with the documentation of impairment, the oral fluid devices can provide reliable results for law enforcement during their investigation.

At the end of project it was unanimous across all law enforcement agencies involved that the roadside devices are extremely useful as a tool to support the suspicion of drug impairment in drivers and provide guidance to the officer on how to proceed with the arrest.

It is important to keep in mind a roadside testing device will not replace forensic laboratory testing or the necessity of a DRE evaluation.

However, oral fluid as a sample matrix can provide information to law enforcement regarding recent drug ingestion.  The observations of the officer during the investigation are what make the roadside device an important tool.

I support the proposed legislation without hesitation given the background from the study I was personally involved in, as well as other performed not only in the United States but also in other countries.

Drug‑impaired driving is extremely dangerous.  It is a homicide waiting to happen and the use of oral fluid devices to assist in the detection and deterrence of this crime is paramount.

Robyn Robertson, President and CEO, Traffic Injury Research Foundation:  The Traffic Injury Research Foundation is an independent road safety research institute. We study road user behaviour, which is one the main contributors to crashes.  As a criminologist I have investigated the profile and characteristics of impaired drivers, evaluated programs and policies designed to manage this population and developed educational resources.

Having effective tools and strategies to deter drug‑impaired driving is incredibly important. In 2012, 40 per cent of fatally injured drivers tested positive for drugs ‑‑ forty per cent, and in 2013, it will be 45 per cent.  We maintain Canada’s National Fatality Database.

In addition, we’ve seen that self‑reported use of marijuana within two hours of driving has gone from 1.6 per cent in 2013 to 2.6 per cent in 2015, and in the context of 22 million drivers that’s very high.

For these reasons, legislation to provide officers with tools is much needed and an important step forward to address the problem.  Oral fluid devices have been used in many countries around the world with positive results, hence the intention of providing officers with an additional tool is one that is welcome.

But to achieve its goals, the process by which officers utilize the testing device need to be carefully considered to ensure that the high evidentiary standards will be maintained and that the legislation will withstand legal challenges.

At present, peace officers can make a demand.  Being able to make a demand for oral fluid may not alone achieve the desired intent if officers are going to have to form suspicion and grounds to continue.

An important feature of cases that proceed to court is that officers do have to be able to articulate and document the stop, the demand and so forth.  We see a lot of challenges associated with that particular piece of the investigation.

We have to keep in mind that detecting alcohol and detecting drugs are two very different things.  The indicators of alcohol are fairly well recognized and more easily recognized by officers because there is a clear dose response relationship.  With regard to drugs, we do not see those same indicators.  The types of indicators can vary according to drug category as well as the combination of drugs; hence, the importance of officers that are trained in standardized field sobriety testing as well as drug recognition evaluation.  The officers undergo very extensive training to be able to document and qualify that sign of impairment, which is very important.

So while all officers must be trained to use an oral fluid device, it must be acknowledged that this is only a first step.  It’s a screening tool; it provides a good indicator, but what we have learned from impaired driving is that the reasons for the stop and the demands are challenged and that officers need to be able to follow through with the investigation.  Currently, we see investigations that are undertaken and then we do not have a DRE; we do not have a standardized field sobriety test trained officer who can uphold that case.  So the cases are not going to court if the officer making the initial stop cannot substantiate that, and if we cannot get a DRE or an SFST-trained officer, where do we go from there from those charges?

We’ve seen that the DRE program is one of the most demanding certifications for officers because of the complexity of the science. The requirement of court testimony for officers should not be underestimated.  It’s not uncommon for DRE officers to let their certification lapse once they have been to court to withstand some of the questioning and testimony that is required.

In my 16 years working with criminal justice practitioners, not just in Canada but in the U.S. and in other countries, we have seen some important gaps in impaired driving legislation that tend to be universal that I would urge you to consider as part of this legislation.

The piecemeal approach to laws, having amendments to different pieces of laws at varying times, makes it very difficult for those we expect to enforce the laws to do their job consistently and well.  When we see multiple amendments, we often end up with loopholes that are unintentional that nonetheless let offenders and drugged drivers or alcohol-impaired drivers go.  Presently, the foundation for drug-impaired driving cases is behavioural evidence, and we need to make sure that the officers will be able to provide that behavioural evidence.  Officers need the requisite training to enforce the legislation.

The Chair:  Thank you.  Finally, Ms. Moore.

Christine Moore, Vice President, Toxicology Analytical Services, Immunalysis Corporation:  Good afternoon, ladies and gentlemen.  Thank you for the opportunity to speak to you today.  For experience, my laboratory analyzes blood and oral fluid samples in the large-scale roadside projects you have been hearing about, including the National Roadside Survey in the U.S.A., California surveys, the Canadian Ontario survey in 2014, and the recently completed one in Manitoba in 2016.  So we have a lot of experience analyzing oral fluid for drugs.

I speak in support of Bill S‑230 and in support of law enforcement officers using oral fluid as a screening device.  As we’ve heard, testing drugs in oral fluid is not new.  It’s used in workplace, pain management, rehabilitation, criminal justice, and many other countries already use it for testing drivers.

One of the effects of marijuana is a reduction in reaction time.  It slows down the reactions.  One of the effects of cocaine is as a stimulant to increase behaviours like risk-taking.  These are not behaviours that we want to encourage and then drive.

If there is technology to prevent and deter driving after taking drugs at all, then I think we should encourage and embrace that.

Data from Colorado following their recreational legalization show that traffic deaths have increased 62 per cent.  As we’ve heard from the other members of the panel, surveys that have looked at both oral fluid and blood show good correlation; you are not going to lose very much information by selecting one over the other, assuming they are collected at a similar time.

One thing I do want to clear up, the cutoffs that we have mentioned and numbers that have been asked, they are not the same in blood and oral fluid.  A five nanogram in blood is not five nanograms in oral fluid.  These things are not equivalent, and it’s different depending on the drug class.  As Ms. Miles mentioned, the benzodiazepine class would be much lower in oral fluid.  Something like amphetamines would be much higher in oral fluids in that envelope, so please don’t get into the concept that five equals five, because it doesn’t, physiologically speaking.

The advantages of oral fluid: it’s safer, more hygienic, more convenient, easier, faster to collect, doesn’t require medically trained personnel, but, more significantly, can be taken proximate to that traffic stop, minimizing the time delay which we have heard about where the active THC dissipates rapidly in the blood sample.  If you can collect that sample, it will save a lot of time and it is very helpful to the officer.

We have heard that marijuana can be detected in the body for months after use or certainly weeks, so one using a week ago could be positive.  That is true if you test urine.  That is not true if you test blood or oral fluid for the active THC.  That will give you a very recent use of marijuana; we’re talking hours, most definitely not a week; and, of course, depending on the level you test even shorter or longer windows.

The roadside devices do not detect every drug possible, but they do identify the main classes of illicit compounds: marijuana, cocaine, amphetamines, opioids; so most of the drugs out there are being tested for.

Finally, a recent court decision in California was People of California v. Junior Salas , where the evidence was admitted for the roadside oral fluid testing device as sufficiently reliable evidence to be admitted to the jury.  I know that has been a concern, has it been legally upheld anywhere, and that was last year in California.

Finally, I strongly urge the committee to approve this legislation, which provides law enforcement a useful, scientifically valid path forward to help identify drugged drivers and keep our streets safer for all of our communities.  Thank you.

(French follows – Le sénateur Carignan : Un des éléments que je modifie dans…)

(après anglais – Mme Moore : …safer for all of our communities. Thank you.)

Le sénateur Carignan : Un des éléments que je modifie dans mon projet de loi est le suivant. À la dernière étape, l’échantillon final ou le rapport final sera mis en preuve sur le type de drogue. Je demande que l’on inclut également la quantité plutôt que seulement la présence. Deux raisons motivent cette décision. Premièrement, la pratique se fait déjà. De ce que j’ai vu, les rapports d’analyse des laboratoires contiennent déjà la quantité. Pourquoi donc ne pas l’inclure également.

Deuxièmement, la quantité de l’échantillon final mis en preuve lors d’un procès est-elle un élément pertinent dans la décision que rendra le juge par rapport à la culpabilité d’une conduite avec facultés affaiblies.  J’entends pertinent dans le sens de période de temps et également de degré de facultés affaiblies. Peut‑être n’y a‑t‑il pas nécessairement de corrélations directes puisque chaque individu est différent, mais cela ne demeure‑t‑il tout de même pas un élément pertinent?

(anglais suit ‑ Ms. Miles ‑ I can answer and anyone else can chime in. Yes it is…)

(Following French ‑‑ Senator Carignan continuing ‑‑ …demeure t il tout de même pas un élément pertinent?)

Ms. Miles:  I can answer and anyone else can chime in.  Yes, it is, as much as I would like it not to be, simply from the facts of what we’ve already discussed.  Everyone is different.  Every level is different for every person.

For me, it would be much easier if it was just the presence of the drug and then the observed impairment by the law enforcement officer, regardless of the concentration.  However, that is not the world we live in.

Most of the testimony that I provide in court relates that concentration to the effects of the drug that I would expect and whether or not they corroborate with what law enforcement saw, but then I also relate it to therapeutic dosing and therapeutic ranges, being what do you normally expect somebody taking this as prescribed for their concentration to be?  But that does not negate impairment.

Yes, in this day and age we do need a number.  People want to see the number; people want to know what the concentration is.  I feel that will be an important piece.  However, you must provide evidence from the law enforcement officer of the impairment and then the laboratory expert or your forensic expert to describe what that number means and how it relates to the case.

Ms. Moore:  Yes, I would agree with what Amy just said.  I definitely think you need a number because intuitively, the higher the number, the more recent the use, the more abuse or misuse there may have been.  It obviously depends on the drug class, but if you take something like oxycodone or hydrocodone as a painkiller, you will be at a level that should be a therapeutic level that is established for you.  So there will be mitigating factors with each person and the reasons they’re stopped.

I think what we’re discussing here is that this is just one tool to help the law enforcement to see if there is an issue with drugs with this driver.  So yes, a number is important for the reasons Ms. Miles just outlined.

(French follows ‑‑ Senator Carignan:  Je comprends maintenant ce que veut…)

(après anglais ‑ Mrs. Moore ‑ … Ms. Miles just outlined.)

Le sénateur Carignan : Je comprends maintenant ce que veut dire cut‑off avec l’utilisation des appareils, c’est le niveau en bas duquel l’appareil ne détectera pas ou ne signalera pas la présence?

(anglais suit ‑ Mrs. Miles ‑ Cut‑off levels are universal across all testing.)

(Following French ‑‑ Senator Carignan continuing ‑‑ …détectera pas ou ne signalera pas la présence?)

Ms. Miles:  Cut‑off levels are universal across all testing.  Cut‑off means at what point does either the device or your test determine that a sample is positive.

For the purpose of oral fluid, as Dr. Moore stated, cut‑off levels have been determined differently than what we would establish for blood and urine.  When we look at the cut‑offs for oral fluid, specifically for the roadside devices, they are designed and established to indicate recent use.  The same thing as we were discussing about THC earlier and measuring that active component or that delta‑9‑THC, if that is measured, that’s because that drug was recently used.  When those cut-offs are established, it’s twofold.  One, you want to detect the drug if it’s there, but you also don’t want to falsely accuse or falsely positive someone who didn’t take the drug or took it a long time ago and it is still is in existence.

Ms. Moore:  I could add to that also.  I think if you set these numbers too low, especially in the case of marijuana, you’re going to be at risk of passive exposure.  There have been several studies done with non‑smokers being next to smokers, and their own fluid and blood and hair and urine were all taken and analyzed to see what levels of marijuana are found in people who are passively exposed.

While we have technologies in the laboratories that go down as low as you want to go or to test almost infinitely, the negative side to that is you bring passive exposure into play and you also increase the window of detection.  So you need to be aware of those two things.  If we’re trying to find recent active use, it has to be well‑thought‑out cut‑offs that are established.

(French follows ‑‑ Senator Boisvenu:  Ma question s’adresse à nos trois invités…)

(après anglais – Mrs. Miles – … cut-offs that are established.)

Le sénateur Boisvenu : Ma question s’adresse à nos trois invités. Je les remercie pour leurs présentations.

Ma principale préoccupation par rapport à la légalisation de la marijuana n’est pas d’amener le plus de personnes devant les tribunaux parce qu’ils ont conduit en état d’intoxication. Ma préoccupation est qu’il y ait le moins de victimes possible sur les routes. J’ai assisté à trop de procès où un enfant, une mère ou un père de famille avait été tué par quelqu’un qui était intoxiqué. Ces gens ne demandent pas de subir un tel sort.

J’aimerais plutôt que nous ayons une approche de prévention dans la légalisation de la marijuana. Les États américains notamment qui ont légalisé cette substance nous disent de nous préparer parce que le choc est assez grave sur le plan de l’inégalité.

Voici ma question : nous avons un gouvernement libéral qui s’apprête à libéraliser la consommation de marijuana à la grandeur du pays et le projet de loi devant nous se veut un outil additionnel pour les policiers afin de contrôler cette consommation lorsque les gens conduisent. Selon votre perception des choses, que serait-il logique de faire, légaliser le pot sans outils additionnels de contrôle ou avoir d’abord un outil de contrôle et légaliser le pot après?

(anglais suit – Mrs. Robertson – One of the things we have seen…)

(Following French ‑‑ Senator Boisvenu continuing ‑‑ …de contrôle et légaliser le pot après?)

Ms. Robertson:  One of the things we have seen in jurisdictions that have moved forward with permitting the use of marijuana and not perhaps anticipated all of the unintended negative consequences is that playing catch‑up after the fact is very hard.

To your point about prevention, the most important piece for this legislation is to ensure that it’s well implemented and that it works.  If we give officers these tools and we are not successful in bringing cases to court in prosecuting or convicting drivers, then we really undermine the deterrent effect of impaired driving legislation.  The public has to know that the fluid devices work, that they withstand court scrutiny, that the officers are capable and qualified to testify to them and that if you are impaired you will be convicted.  It’s very important from a prevention point of view to be able to demonstrate that message.

Ms. Moore:  I think that the message we’re getting from both Colorado and to a lesser extent from Washington state is that you should wait.  There have been so many issues following the recreational legalization there.  A lot of the numbers have gone up, not only traffic safety but poisonings in children, especially things like edibles.  There are all kinds of issues that they have, and the message they’re telling us is wait.

It’s not a terribly bad thing to smoke a joint if you’re an adult, but many areas that have changed have things to do with potency of the marijuana.  This is not your grandmother’s marijuana.  This is not the 6 and 7 per cent that you are allowed to give to people in these studies that we all read about.  The average in Colorado now is 22 per cent of active THC, and that’s low.  Some of the oils and waxes are 80 and 90 per cent.

So many issues have not been taken care of, so I would say slow down with your legalization, but obviously that’s up to Canada.  Those are the things coming out of the states that have already done this.

(French follows ‑‑ Senator Boisvenu:  Ma question n’était pas par rapport à la…)

(après anglais – Mrs. Moore – … that have already done this.)

Le sénateur Boisvenu : Ma question n’était pas par rapport à la légalisation au Canada, mais à savoir si on doit se donner des outils de contrôle maintenant ou attendre la légalisation et se donner des outils après.

(anglais suit in 1210 – Mrs. Moore – Yes, I think that if there is technology…)

(Following French ‑ Sen. Boisvenu cont’g ‑‑ . . . attendre la légalisation et se donner des outils après.).

Ms. Moore:  Yes.  I think that if there is technology which has already been used and has been shown in several studies to be reliable and accurate, then absolutely, we should provide that to law enforcement and have it be both a preventative effect on the person who was going to drive and a deterrent to someone who just might be caught and maybe they shouldn’t drive, just like the breathalyzer.  I think it’s important to provide that to law enforcement.

Senator McIntyre:  Ms. Miles and Dr. Moore, I want to make sure I understand this.  All drugs are not metabolized the same way.  In other words, as I understand, it is possible for the analysis to detect the presence of a drug that was not consumed recently.

What impact on the ability to drive would this have on a person?  Is there a carry-on?

Ms. Miles:  In my experience, I have reviewed thousands of police reports and testified in over 300 trials.  Those individuals who are not impaired but we do detect, say, carboxy‑THC, but not the parent compound — the inactive metabolite carboxy‑THC — there is not impairment from that compound or for that metabolite.

That is why the oral‑fluid devices are good for this, because they are specifically looking for that active delta‑9‑THC compound.

Senator McIntyre:  My question has to do with the occasional versus the habitual user.  As I understand, the results of the analysis of bodily substances differ depending on whether the person is an occasional or a habitual user to a particular type of drug.  How is this accounted for when interpreting the results?

Ms. Miles:  When I interpret results, I can rarely make a demonstration of or talk about the impairment based on my toxicology results alone.  Typically, I do the analyses related to whether or not it is an abusive level and then rely on what the law enforcement saw as far as is that an impairing concentration for that person.  That’s how we interpret the forensic toxicology testing that occurs.

Ms. Moore:  I would agree with that completely.  This is just one tool in the arsenal.  You’re not going to be trying to figure out if this person should have been taking their medicine or not based on a single toxicology result.  It is a mix of why the person was stopped, what the officer saw, what was found, all those kinds of things.

You will have different levels in occasional users than chronic users.  There is definitely tolerance, just as there is with alcohol.  You have to base your final judgment on a lot of different factors.  This is just one tool in the kit.

(French follows ‑ Sen. Dagenais ‑‑Ma première question s’adresse à Mme Miles. Je vous remercie . . .)

(après anglais – Mme Moore : …this is just one to indicate.)

Le sénateur Dagenais : Ma première question s’adresse à Mme Miles. Je vous remercie pour vos présentations.

Madame Miles, avant d’acheter leurs équipements, les services de police font une évaluation de ceux-ci. Ce sera sûrement le cas pour les appareils qui seront proposés pour effectuer les tests de première ligne. Je ne veux surtout pas vous mettre dans l’embarras, mais vous avez dû vous pencher sur cette question. À votre avis, quels seraient les appareils testés qui donneraient les meilleurs résultats? Autrement dit, je suis un policier. Que me suggérez-vous comme appareils?

(anglais suit – Ms. Miles: That is a very good question…)

(Following French ‑ Sen. Dagenais cont’g ‑‑ . . . Que me suggérez‑vous comme appareils?)

Ms. Miles:  That is a very good question.  One of the issues with all of this is not only do we want to make sure we are deterring drug‑impaired driving, we want it to be useful for law enforcement officers.

In our study in Wisconsin, we brought in two devices.  I had weeded them as far as reliability, validity and familiarity.  One was the Dräger device, the other being the Alere device.  I put them in front of my law enforcement officers and said, “You will be using these.  You tell me which you would prefer.”  They ultimately made the choice.

Neither one scientifically, validity‑wise, is better than the other.  It really comes down to what is law enforcement’s preference.  That’s how we ended up deciding on the device that we used in our study.

However, because we used the Alere device, that does not mean the Dräger isn’t just as good, valid and as easy to use.

(French follows ‑ Sen. Dagenais ‑‑ J’imagine que vous avez aussi . . .)

(après anglais – Mme Miles : …just as easy to use.)

Le sénateur Dagenais : J’imagine que vous avez aussi considéré la question des coûts de ces différents appareils?

(anglais suit – Ms. Miles: Interestingly, the cost was not a deterrent…)

(Following French ‑ Sen. Dagenais cont’g ‑‑ . . . de ces différents appareils?)

Ms. Miles:  Interestingly, the cost was not a deterrent between either one.  It came down to:  “As a law enforcement officer at roadside, which one would you like to use?”  We let them decide.  Cost is always an issue, but between the two devices, that wasn’t a deciding factor.

(French follows ‑ Sen. Dageanis ‑‑ J’aurais une autre question, cette fois . . .)

(après anglais – Mme Miles : …wasn’t the deciding factor.)

Le sénateur Dagenais : J’aurais une autre question, cette fois-ci pour Mme Moore.

Madame Moore, on sait que l’alcool ne provoque pas les mêmes réactions dans le corps de l’homme et celui de la femme. En est-il de même pour la drogue? Dépendant de la constitution biologique, la drogue n’aura pas le même effet.

(anglais suit – Ms. Moore: Absolutely. We are all different…)

(Following French ‑ Sen. Dagenais cont’g ‑‑ . . . drogue n’aura pas le même effet.)

Ms. Moore:  Absolutely.  We’re all different, and it’s not just men and women.  It’s fat and thin, and tall and short.  Is it the first time I ever drank, or have I drunk a whole lot of beer in my life?

Yes, it’s different, which is why you have to have standards of therapeutic levels, as have been mentioned for, certainly, prescription drugs.  We can do that and look that all up in textbooks and try and determine whether that’s therapeutic or not.  That’s what Amy does regularly in her work in Wisconsin.

For marijuana, it is a little bit more difficult because of the different ways you can take that.  We’ve talked about edibles, vaping, smoking.  There different routes of administration will give you different levels.

It’s not just the individual person.  There are a lot of variables with this, which is why it’s so much more difficult than alcohol.  No one said it was easy.

Senator Plett:  Senator Boisvenu asked a question about putting the cart before the horse, which I think is a pretty simple way of putting it.  Dr. Moore gave a very clear answer on that, and I appreciated that.  I don’t know that Ms. Miles gave an answer on that, so I really would like to hear her response.

Before you do, Ms. Robertson gave a response that alluded to the unanticipated and unintended consequences.  I would like you to elaborate on that, because I think there were critics screaming from the rooftops about the negative consequences of possibly legalizing these drugs.

I’m not sure who in the world wouldn’t have known.  We’re have been dealing with safe injection sites, and there are many of us pleading let’s please not do that.  That’s opening up more avenues for more illegal and illicit drugs.

I would like you to explain who would not have at least anticipated the negative consequences of these drugs.

Then, Ms. Miles, if you would explain whether or not you think we’re putting the cart before the horse here or the other way around, and what the best way is.

Ms. Robertson:  I think the reason there are so many unanticipated negative consequences is you really can’t anticipate the operational practices that need to go into place.

One of the things that was alluded to was the poisonings and the high levels of toxicity that we’re seeing in emergency rooms in Colorado simply because of the packaging, the marketing and accessibility of the product.  Children were getting their hands on it.  Also, not a good understanding of the different consequences of the different routes of ingestion, of one being more intense, the high being more immediate versus taking longer to occur, and people ingesting more than they should ingest and ending up in the hospital otherwise.

Because of the complexity of the substance and the many ripple effects associated with implementation, it’s difficult to anticipate what those challenges are, but most importantly, not having an adequate number of officers who are trained and prepared to detect drivers and to remove them from the road sends a very bad message to the public that the legislation is not enforceable or will not be enforced or the tools are not available.

Senator Plett:  Maybe unintended consequences, but certainly not unanticipated.

Ms. Robertson:  Depending on where you sit.

Ms. Miles:  I agree with everything Dr. Moore said, that I feel we need to stop and take a breath.  In the United States we’ve seen the aftermath of legalization in Washington and Colorado, and the increase in traffic fatalities is alarming.

I would say that I am grateful that my state has proclaimed that while my governor is in office he will not approve any sort of legalization of marijuana.

Senator Plett:  Hear, hear.

Ms. Miles:  Which I am appreciative of, because it provides us an ample amount of time to start educating.

One of the pieces of education that came from this unintended consequence of our study was we did a press release when we first announced that we were going to do this oral fluid study, what it was, drug‑impaired driving and detection, and from that has come great response from the public asking the questions they need to ask.  Why is it impairing?  What is it?  How much do I have to take and so forth?

Our intention was: Are the instruments good and does law enforcement like them?  From that came the public education piece, which I think is so incredibly important.  With that, I can take this to my legislature to make sure they understand the lessons we’ve learned within this study before we move forward on any legislation too.

Senator Carignan:  Your situation in Wisconsin in interesting.  I want to know if you have the same type of behaviour from your youth.  My daughter said to me that because we have a system that controls alcohol and that it is zero tolerance, youth drivers prefer to take cannabis rather than alcohol because they know it will not be detected.  Did you have the same type of behaviour before you had this device to control drugs?

Ms. Miles:  Yes.  While it’s very difficult to tell a teenager anything, I do spend a fair amount of time going to high schools and talking as frankly as I can about what is marijuana, what are drugs, what do they mean to you as an adolescent.

We do not only deal with the marijuana issue and the idea that it is safe but we also deal with synthetic marijuana as well as an alternative, because in some instances that can be considered legal.

Once you slap a label on any drug as being legal, the automatic impression is that it is safe.   That’s why our concern is the adolescents, because they will read legalization as being something safe to consume.  The only recourse we have is education.  Hopefully you have parents out there educating their children in that manner as well, but unfortunately you don’t always have that too.

The Chair:  Thank you.  It has been informative and helpful.  The federal government had a commission or committee chaired or directed under the parliamentary secretary to the Minister of Justice.  I think they have turned the report over to the government.  I’m not sure it has been made public yet.

I’m curious, were any of you invited to present at that study?

Ms. Moore:  No.

Mr. Robertson:  We were invited to meetings.

The Chair:  You did contribute.  Essentially what you have given us today with respect to unanticipated consequences, that message was delivered to the committee.

Thank you again.  We are very appreciative of your attendance and testimony today.  It was very helpful.  Thank you.

The committee is adjourned.